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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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Congress

Dina Titus introduces bill to require U.S. to promote LGBTQ, intersex rights abroad

White House reconsidering aid to Uganda over Anti-Homosexuality Act

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U.S. Rep. Dina Titus (D-Nevada) (Screen capture via Dina Titus YouTube)

U.S. Rep. Dina Titus (D-Nev.) on Thursday introduced a bill that would require the U.S. to promote LGBTQ and intersex rights abroad through its foreign policy.

The Human Rights Campaign, the Council for Global Equality, the National Center for Transgender Equality, ORAM (Organization for Refuge, Asylum and Migration), Outright International, Rainbow Railroad and the Trevor Project are among the organizations that support the Greater Leadership Overseas for the Benefit of Equality (GLOBE) Act. U.S. Sen. Edward Markey (D-Mass.) will introduce the bill in the U.S. Senate. 

Titus on Tuesday told the Washington Blade during an exclusive interview the bill, among other things, would endorse the selective use of existing sanctions to punish those responsible for murders and other human rights abuses against LGBTQ and intersex people. She also said the measure would require the State Department to allow LGBTQ and intersex people to choose their gender marker on passports and other travel documents.

“It’s a way of putting into action our attempts to be a leader in the area of LGBTQ+ rights and to be a leader, not just at home, but around the world,” said Titus.

President Joe Biden in 2021 signed a memorandum that committed the U.S. to promoting LGBTQ and intersex rights abroad as part of the Biden-Harris administration’s overall foreign policy.

Jessica Stern has been the special U.S. envoy for the promotion of LGBTQ and intersex rights since 2021. She told the Blade in a previous interview the White House’s continued support of LGBTQ and intersex rights includes marriage equality in countries where activists say such a thing is possible through legislation or the judicial process.

The State Department last year began to offer passports with an “X” gender marker. The U.S. Agency for International Development and the President’s Emergency Plan for AIDS Relief has delivered millions of doses of antiretroviral drugs for Ukrainians with HIV/AIDS.

U.S. Ambassador to the U.N. Linda Thomas-Greenfield in March chaired a U.N. meeting that focused on the integration of LGBTQ and intersex rights into the U.N. Security Council’s work.

Biden, along with U.S. Sen. Ted Cruz (R-Texas) others, have condemned the signing of Uganda’s Anti-Homosexuality Act that contains a death penalty provision for “aggravated homosexuality.” The National Security Council has said it will “evaluate” the law’s implications in terms of U.S. aid to the country.

Titus is among the lawmakers who have previously introduced bills that are similar to the GLOBE Act. 

She noted the Anti-Homosexuality Act when she spoke with the Blade. Titus also discussed Republican-led efforts to curtail LGBTQ rights in Florida and other states.

“It’s harder, certainly, to get Republicans on board, but I’m optimistic,” she said when asked if she expects any Republicans will co-sponsor his bill. “The more they hear from their constituents and the more they see the backlash to what some state legislatures are doing and the more they hear from members of their own families, I think that we may get some to join us in this.”

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Politics

Mark Milley defends cancellation of drag show at Nevada Air Force base

Move followed pressure from anti-LGBTQ Rep. Gaetz

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U.S. Army General Mark Milley, chair of the U.S. Joint Chiefs of Staff (Official photo via U.S. Department of Defense)

U.S. Army General Mark Milley, chair of the U.S. Joint Chiefs of Staff, told CNN’s Oren Liebermann during an interview Monday that last week’s cancellation of a drag show at Nellis Air Force base in Nevada was “the absolute right thing to do.”

The top U.S. military officer said the decision came from U.S. Secretary of Defense Lloyd Austin, but added that he agreed with the move.

A Pentagon source familiar with the matter told the Washington Blade on Thursday that Milley informed Air Force Chief of Staff Gen. Charles Q. Brown, Jr. that it is not Pentagon policy to fund drag shows on bases and the show needed to be canceled or moved off base. 

He echoed those comments during Monday’s interview, asserting that the performances “were never part of [Department of Defense] policy to begin with, and they’re certainly not funded by federal funds.”

“DoD resources should be used for mission-essential operations, not diverted toward initiatives that create cultural fissures within our service ranks,” anti-LGBTQ U.S. Rep. Matt Gaetz (R-Fla.) said in a May 23 letter to Milley and Austin.

“I find it completely unacceptable that DoD is using taxpayer dollars to fund DEI programs that are divisive in nature,” said Gaetz, referring to diversity, equity, and inclusion – programs typically administered by corporations that have increasingly become targets of conservative outrage.

Milley pushed back on accusations that the military had “gone woke” during the interview, which took place in Normandy, France, marking the 79th anniversary of the D-Day invasion into Nazi-occupied Europe on June 6, 1944.

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Politics

Chris Christie, Mike Pence officially enter 2024 presidential race

Former vice president has long anti-LGBTQ record

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Former New Jersey Gov. Chris Christie (R) and former Vice President Mike Pence (R) (Washington Blade photos by Michael Key)

During a town hall event Tuesday in New Hampshire and in a launch video released Wednesday morning, former New Jersey Gov. Chris Christie (R) and former Vice President Mike Pence (R) entered the 2024 presidential race.

For years, both were staunch allies of the current Republican frontrunner, former President Donald Trump, breaking with him only after the Jan. 6 attack on the U.S. Capitol, which came after Pence’s refusal to overturn the 2020 election results and prompted Christie to declare Trump unfit for a second term.

Echoing other critical comments he has made in recent months, the former governor’s announcement Tuesday directly took aim at Trump, “a lonely, self-consumed, self-serving mirror hog” who “is not a leader.”

For his part, Pence neither mentioned Trump by name nor included any photos or video footage of the former president in his announcement video, acknowledging him only indirectly by asserting that “different times call for different leadership.”

Christie, Pence, and Trump will also be squaring off against several other Republican candidates in the GOP presidential primary: former South Carolina Gov. Nikki Haley, who also served in the Trump administration, U.S. Sen. Tim Scott (S.C.), former Arkansas Gov. Asa Hutchinson, entrepreneur Vivek Ramaswamy, talk radio host Larry Elder, and Florida Gov. Ron DeSantis.

An evangelical born-again Christian, Pence has opposed LGBTQ rights stridently and consistently throughout his career in politics as a member of the U.S. House of Representatives, as governor of Indiana, and then as vice president.

Declaring him the “Worst Vice President for LGBTQ People In Modern History,” the Human Rights Campaign chronicled a list of Pence’s anti-LGBTQ actions and statements over the years, including his endorsement of conversion therapy and opposition to hate crime laws for their inclusion of violence motivated by animus toward the victim’s sexual orientation or gender identity.

In February, a group formed by Pence and financed by his supporters ran ads in Iowa to rally conservative opposition to pro-trans policies in schools.

By contrast, Christie has a far more moderate record with respect to LGBTQ matters. “If someone is born that way, it’s very difficult to say then that that’s a sin,” he said in 2013, while signing New Jersey’s ban on conversion therapy.

The GLAAD Accountability Project, however, notes Christie’s veto of a bill in 2014 that would have allowed trans people in the state to change the gender designation listed on their birth certificates. The group also highlighted his veto of a marriage equality bill in 2012.

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