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Obama has leeway in defense of DOMA: activists

GLAD says Justice has made some accomodations, but can go further

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The heads of LGBT legal organizations say that the Obama administration has considerable leeway in how it defends the Defense of Marriage Act in court — even if officials believe they’re obligated to uphold the statute.

The Obama administration’s defense of DOMA, which prohibits the federal recognition of same-sex marriage, has inspired debate among LGBT rights supporters about whether the Justice Department is required to defend the law.

The LGBT advocates commented on the issue during an eQualityThinking panel on Monday in response to a question from moderator and Washington Blade editor Kevin Naff.

Kevin Cathcart, executive director of Lambda Legal, said he’s “not completely convinced” the Justice Department is compelled to defend DOMA, but said even it is, the administration doesn’t need to use every argument to defend the statute.

“They have great leeway in deciding what arguments they will make and what arguments they won’t make,” Cathcart said. “I don’t accept the notion that if they have to defend, it means they have to throw in arguments that have been discredited and argue issues that should never see the light of day.”

Kate Kendell, executive director of the National Center for Lesbian Rights, noted the Obama administration has mounted “a more full-throated defense” than what was necessary in its early defense of DOMA.

The 2009 defense of DOMA in the case of Smelt v. United States, the first brief the Obama administration filed in defense of the law, inspired resentment in the LGBT community early last year for drawing on case law to compare same-sex marriage to pedophilia and bestiality.

“They included very offensive language around parenting,” Kendell said. “It wasn’t a direct comparison between LGBT relationships and pedophilia or bestiality, but it was close enough, and it was appalling.”

Kendell said her organization has had conversations with the Justice Department to make clear that those arguments were not only unacceptable and baseless. Following these conversations, she said the Obama administration made some changes in how it defended DOMA.

“They have made some accommodations that well reflect the values that the administration say[s] they espouse, but I think — I’ll speak for ourselves for our purposes and to our case — they certainly haven’t gone as far as they should go,” Kendell said.

Lee Swislow, executive director of Gay & Lesbian Advocates & Defenders, said even if the Obama administration opted not to defend DOMA, the Justice Department would have to formally notify Congress to give lawmakers the opportunity to defend the statute.

“There is a possibility for the Justice Department not to defend, but that doesn’t mean there won’t be a defense of the laws that Congress passes,” she said.

GLAD has filed two lawsuits against DOMA: Gill v. Office of Personnel Management, which is pending before the U.S. First Circuit Court of Appeals, and Pedersen v. Office of Personnel Management, which is pending before the U.S. District Court of Connecticut.

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Court records raise concerns about right-wing TikTok investor’s influence

Jeff Yass is a Pa. billionaire who has funded anti-LGBTQ causes

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Jeff Yass (Screen capture: Susquehanna International Group/YouTube)

The role played by Pennsylvania billionaire Jeff Yass in the creation of TikTok might be far greater than was previously understood, according to new reporting that raises questions about the extent of the right-wing megadonor’s influence over matters at the intersection of social media, federal regulations, and electoral politics.

In 2012, Yass’s firm, Susquehanna International Group, spent $5 million for 15 percent of the short-form video hosting platform’s Chinese-owned parent, ByteDance. In the years since, as TikTok grew from a nascent startup to a tech giant with 1.5 billion active monthly users and an estimated $225 billion valuation, Yass and his firm pocketed tens of billions of dollars.

Beyond the size of Susquehanna’s ownership stake, little was known about its relationship with ByteDance until documents from a lawsuit filed against the firm by its former contractors were accidentally unsealed last month, leading to new reporting by the New York Times on Thursday that shows Susquehanna was hardly a passive investor.

In 2009 the firm used a proprietary, sophisticated search algorithm to build a home-buying site called 99Fang, tapping software engineer and entrepreneur Zhang Yiming to serve as its CEO. The company folded. And then, per the Times’s review of the court records, in 2012 Susquehanna picked Yiming to be the founder of its new startup ByteDance and repurposed the technology from 99Fang for use in the new venture.

Importantly, the documents do not provide insight into Yass’s personal involvement in the formation of ByteDance. And Susquehanna denies that the company’s search algorithm technologies were carried over from the real estate venture — which, if true, would presumably undermine the basis for the lawsuit brought by the firm’s former contractors who are seeking compensation for the tech used by ByteDance.

Questions about Yass’s influence come at a pivotal political moment

In recent weeks, federal lawmakers have moved forward with a proposal that would force ByteDance to divest TikTok or ban the platform’s use in the U.S. altogether, citing the potential threats to U.S. national security interests stemming from the company’s Chinese ownership.

The bill was passed on March 13 with wide bipartisan margins in the House but faced an uncertain future in the Senate. However, on Wednesday, House Speaker Mike Johnson (R-La.) announced plans to fold the proposal into a measure that includes foreign aid to Ukraine, Israel, and Taiwan, likely bolstering its chances of passage by both chambers.

Last month, shortly after meeting with Yass at his home in Mar-a-Lago, former President Donald Trump changed his longtime stance and came out against Congress’s effort to break up or ban TikTok. The timing led to speculation about whether the billionaire businessman was behind Trump’s change of heart, perhaps by contributing to the cash-strapped Republican presidential nominee’s electoral campaign or through other means.

Meanwhile, Yass has emerged as the largest donor of the 2024 election cycle. A coalition of public interest and government watchdog groups have called attention to the vast network of right-wing political causes and candidates supported by the billionaire, often via contributions funneled through dark money PACs that are designed to conceal or obscure the identities of their donors.

The Action Center on Race and the Economy, Make the Road, POWER Metro: Faith in Action, Free the Ballot, and Little Sis launched a website called All Eyes on Yass that features research into the various causes he supports, along with insight into the networks connecting the entities funded by his contributions.

Broadly, in Pennsylvania they fall into five categories: Advocacy against reproductive freedom and LGBTQ rights via the Pennsylvania Family Institute, lobbying on behalf of oil and gas industry interests by the Pennsylvania Manufacturers’ Association, anti-union groups supported by Commonwealth Partners, a privately owned registered investment advisory firm/independent broker-dealer, the Commonwealth Foundation for Public Policy Alternatives, which seeks to privatize public schools and defeat proposed increases to the minimum wage, and the Citizens Alliance of Pennsylvania, which advocates for lowering taxes on corporations and the rich.

Additionally, All Eyes on Yass reports that the billionaire has given massive contributions to Club for Growth and direct spending to support the electoral campaigns of right-wing Republicans including Florida Gov. Ron DeSantis; U.S. Sens. Ted Cruz (Texas), Rand Paul (Ky.), and Josh Hawley (MO); U.S. Rep. Lauren Boebert (Colo.), and former U.S. Rep. Madison Cawthorn (N.C.).

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Lawmakers champion drug policy reforms at National Cannabis Policy Summit

Congressional leaders pledged their support for decriminalization

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U.S. Rep. Barbara Lee (D-Calif.), second from left (Washington Blade photo by Christopher Kane)

Speaking at the 2024 National Cannabis Policy Summit on Wednesday, congressional leaders pledged their support for proposals to remedy the harms of America’s War on Drugs while protecting cannabis users and cannabis businesses that are operating under a fast-evolving patchwork of local, state, and federal laws.

Overwhelmingly, the lawmakers who attended the conference at the Martin Luther King Jr. Memorial Library in D.C. or delivered their remarks virtually were optimistic about the chances of passing legislative solutions in the near-term, perhaps even in this Congress.

Participants included U.S. Sens. Raphael Warnock (D-Ga.), Jeff Merkley (D-Ore.), Elizabeth Warren (D-Mass.), and Senate Majority Leader Chuck Schumer (D-N.Y.), along with U.S. Reps. Eleanor Holmes Norton (D-D.C.), Earl Blumenauer (D-Ore.), and Barbara Lee (D-Calif.), who co-chairs the Congressional Cannabis Caucus and was honored at the event with the Supernova Women Cannabis Champion Lifetime Achievement Award. Republicans included an aide for U.S. Rep. David Joyce (R-Ohio) who was featured in an afternoon panel discussion about the cannabis policy landscape on Capitol Hill.

Each of the members have long championed cannabis-related policy reforms, from Merkley’s SAFER Banking Act that would allow cannabis businesses to access financial services (thereby affording them the critically important protections provided by banks) to Lee’s work throughout her career to ameliorate the harms suffered by, particularly, Black and Brown communities that have been disproportionately impacted by the criminalization of marijuana and the consequences of systemic racism in law enforcement and the criminal justice system.

The lawmakers agreed America is now at an inflection point. Democratic and Republican leaders are coming together to support major drug policy reforms around cannabis, they said. And now that 40 states and D.C. have legalized the drug for recreational or medical use, or both, the congress members stressed that the time is now for action at the federal level.

Last summer, the U.S. Department of Health and Human Services issued a formal request to re-categorize marijuana as a Schedule III substance under the rules and regulations of the Controlled Substances Act, which kicked off an ongoing review by the Biden-Harris administration. Since the law’s enactment in 1971, cannabis has been listed as a Schedule I substance and, therefore, has been subject to the most stringent restrictions on and criminal penalties for its cultivation, possession, sale, and distribution.

Merkley acknowledged that re-scheduling would remedy the Nixon administration’s “bizarre” decision to house marijuana under the same scheduling designation as far more harmful and addictive drugs like heroin — and noted that the move would also effectively legalize biomedical research involving cannabis. However, the senator said, while re-scheduling “may be a step in the right direction, it’s not de-scheduling” and therefore would not make real inroads toward redressing the harms wrought by decades of criminalization.  

Likewise, as she accepted her award, Lee specified that she and her colleagues are “working night and day on the legalization, not re-scheduling.” And her comments were echoed by Warren, who proclaimed in a prerecorded video address that “de-scheduling and legalizing cannabis is an issue of justice.”

Congressional Republicans have blocked legislation to legalize marijuana, the Massachusetts senator said, “and that is why the scheduling is so important,” as it might constitute a “tool that we can use to get this done without Republican obstruction.”

Warren, Merkley, and Schumer were among the 12 Senate Democrats who issued a letter in January to the U.S. Drug Enforcement Administration requesting transparency into its re-scheduling process while also, more importantly, demanding that the agency fully de-schedule cannabis, which would mean the drug is no longer covered by the Controlled Substances Act.

However, in a possible signal of political headwinds against these efforts, their Republican colleagues led by U.S. Sen. Mitt Romney (R-Utah) responded with a letter to DEA Administrator Anne Milgram “highlighting concerns over HHS’s recommendation to reschedule marijuana from a Schedule I to Schedule III-controlled substance.” The GOP signatories, all of whom serve on the Senate Foreign Relations Committee, also sought to “underscore the Drug Enforcement Administration’s (DEA) duty under the Controlled Substances Act (CSA) to ensure compliance with the United States’ treaty obligations under the Single Convention on Narcotic Drugs.”

As Norton noted during her prepared remarks, elected Democrats are not necessarily always on the same page with respect to expanding access to economic opportunity facilitated by cannabis. For instance, though President Joe Biden had promised, during his State of the Union address this year, to direct his “Cabinet to review the federal classification of marijuana, and [expunge] thousands of convictions for mere possession,” Norton blamed Biden along with House Republicans for provisions in the federal budget this year that prohibit D.C. from using local tax dollars to legalize cannabis sales.

A non-voting delegate who represents the city’s 690,000 residents in the House, Norton called the president’s position “deeply disappointing,” particularly considering his record of supporting “D.C. statehood, which would allow D.C. to enact its own policies without congressional interference” and grant its residents voting representation in both chambers of Congress. She added that the majority of Washingtonians are Black and Brown while all are held responsible for “the obligations of citizenship including paying federal taxes.”

Norton said the city should also have the power to grant clemency for crimes committed in the District, including cannabis-related crimes — power that, currently, can only be exercised by the president.

Some Republican lawmakers have been at the forefront of efforts to reform harmful cannabis regulations. For instance, a participant in a mid-afternoon panel pointed to the CURE Act, a bill introduced by U.S. Reps. Nancy Mace (R-S.C.) and Jamie Raskin (D-Md.) that would prohibit the federal government from denying security clearances based on applicants’ past or current use of cannabis.

While securing statehood for D.C. and de-scheduling cannabis via legislation or administrative action are perhaps, at least for now, a heavy lift, Merkley pointed to promising new developments concerning his SAFER Banking Act.

The Oregon senator first introduced the measure, then titled the SAFE Banking Act, in 2019, and he said the legislation’s evolution into its current iteration was difficult. “Regulators don’t want to be told what to do,” Merkley said, and negotiations with these officials involved “nitty-gritty arguments over every word.”

Pushback also came from one of Merkley’s Democratic colleagues. In September, Warnock, who is Georgia’s first Black U.S. senator, voted “no” on the 2023 version of the SAFER Banking Act, writing: “My fear is that if we pass this legislation, if we greenlight this new industry and the fees and the profits to be made off of it without helping those communities” most harmed by the War on Drugs “we will just make the comfortable more comfortable.”

Warnock’s statement followed his pointed remarks expressing concerns with the legislation during a Senate Banking Committee hearing.

“Let me be very clear,” he said, “I am not opposed to easing or undoing federal restrictions around cannabis. And I would support all of the provisions and reforms in this legislation if paired with broader cannabis reforms that substantively address the issue of restorative justice. This bill does not do that.”

At this point, however, the latest version of the SAFER Banking Act has advanced out of committee and earned the support of Senate leaders including Schumer and much of the Republican conference.

“This is the moment,” he said. “Let’s not let this year pass without getting this bill — the safer banking bill — through the House, through the Senate, and on the president’s desk.”

In her remarks, Lee also discussed the importance of business and industry-wide reforms like those in Merkley’s bill.

“We have to make sure that the cannabis industry is viewed by everyone, especially our federal government, as a legitimate business,” Lee said. “Legitimate, which deserves every single aspect of financial services that any legitimate business deserves and has access to.”

Like Warnock, the congresswoman also highlighted how these financial and business considerations intersect with “equity issues,” as “those who have been most impacted by this horrible War on Drugs” must “become first in line for the businesses and for the jobs and for the economic opportunity the cannabis industry provides.”

Reflecting on her experience introducing the Marijuana Justice Act in 2019, which was Congress’s first racial justice cannabis reform bill, Lee remembered how “everyone was like, ‘why are you doing this? It’s politically not cool.’” Her legislation sought to end the federal criminalization of marijuana, expunge the criminal records of those convicted of cannabis-related crimes, and reinvest in communities that have suffered disproportionately from the War on Drugs.

The congresswoman said she explained to colleagues how the bill addressed “many, many layers” of often-intersecting problems linked to federal cannabis policy, telling them: “This is a criminal justice issue, a racial justice issue, an issue of equity, a medical issue, a veterans’ issue, and an issue of economic security.”

Two years later, with a 220-204 vote, the House successfully passed the Marijuana Opportunity Reinvestment and Expungement Act, a comprehensive bill introduced by U.S. Rep. Jerry Nadler (D-N.Y.) and to the Senate by then-U.S. Sen. Kamala Harris (D-Calif.). The measure included Lee’s Marijuana Justice Act.

“This bill is the product of many, many years of advocacy for federal cannabis reform and equity,” she said in a statement celebrating the bill’s passage. “Make no mistake: This is a racial justice bill. It’s about the thousands of people of color who sit in jail for marijuana offenses while others profit. It’s about finally repairing the harms of the War on Drugs on communities and families across the country.”

“We’ve come a long way,” she told the audience on Wednesday. “And now we have a long way to go.”

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First lady warns Trump is ‘dangerous to the LGBTQ community’ at HRC event

Jill Biden spoke in Arlington, Va., on Friday

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Human Rights Campaign President Kelley Robinson introduces the First Lady Dr. Jill Biden at the Human Rights Campaign's Equality in Action event on Friday, April 12, 2024 in Arlington, Va. (Kevin Wolf/AP Images for Human Rights Campaign)

Delivering a keynote address at the Human Rights Campaign’s Equality in Action event Friday, First lady Jill Biden warned former President Donald Trump is “a bully” who is “dangerous to the LGBTQ community.”

Her appearance at the three-day volunteer and board gathering at the Sheraton Pentagon City in Arlington, Va., comes as part of the Biden-Harris reelection campaign’s “Out for Biden” program, which aims to “mobilize LGBTQ+ voters, communities, and leaders across the country.”

“Today, this community is under attack,” Biden said. “Rights are being stripped away. freedoms are eroding. More and more state laws are being passed targeting this community. Just last month, we had to fend off more than 50 anti-gay amendments that Republicans tried to force into the government funding bill.”

“These were extreme measures aimed directly at this community — measures that would have limited health care and weakened protections for same sex couples,” she said. “And they served only one purpose to spread hate and fear.”

In a nod to her long career as an educator, Biden said, “History teaches us that our rights and freedoms don’t disappear overnight. They disappear slowly. Subtly. Silently.”

She continued, “A book ban. A court decision. A ‘Don’t Say Gay’ law. One group of people loses their rights and then another. And another. Until one day you wake up and no longer live in a democracy … This is our chapter of history and it’s up to us how it ends.”

Biden then highlighted some of the advancements for LGBTQ rights secured under the Biden-Harris administration.

“Thanks to President Biden, marriage equality is now the law of the land,” she said. “He ended the ban on gay and bisexual men donating blood. He’s made it possible for trans Americans to serve openly and honorably in our military. And he’s standing firmly against conversion therapy.”

“Yes, there are forces outside these walls that are trying to erase these hard fought gains, trying to unwind all the progress that we’ve made,” Biden said. “They want to take our victories away, but we won’t let them. Your president will not let them — I will not let them.”

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