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Can Obama stop enforcing DOMA?

Experts divided as legal challenges loom

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President Obama (Blade photo by Michael Key)

The announcement from President Obama last week that he believes Section 3 of the Defense of Marriage Act is unconstitutional and that he will no longer defend the law in court is raising questions about whether he can further help the LGBT community by discontinuing enforcement of the law.

Dan Pinello, who’s gay and a government professor at the City University of New York, said he believes Obama has the authority to stop enforcing Section 3 of DOMA, which prohibits the federal government from recognizing same-sex marriages, now that he has deemed the statute unconstitutional.

“If an order came down from the White House to start treating married same-sex couples like married opposite-sex couples, I think that would be honored in terms of bureaucrats sitting up and doing what he says,” Pinello said. “A president can seek not to enforce a statute if he believes, legally and otherwise, it’s unconstitutional.”

In the past, presidents have declined to enforce laws that they believe are unconstitutional, but such situations are rare. President Woodrow Wilson ignored a statute that conditioned removal of postmasters on Senate approval. In 1926, the Supreme Court struck down the the law as unconstitutional without making any suggestion that Wilson overstepped his boundaries by not enforcing the statute.

In 1994, then-U.S. Assistant Attorney General Walter Dellinger wrote a memorandum to then-White House Counsel Abner Mikva asserting the president “may appropriately decline to enforce a statute that he views as unconstitutional.”

“As a general matter, if the President believes that the [Supreme] Court would sustain a particular provision as constitutional, the President should execute the statute, notwithstanding his own beliefs about the constitutional issue,” Dellinger writes. “If, however, the President, exercising his independent judgment, determines both that a provision would violate the Constitution and that it is probable that the Court would agree with him, the President has the authority to decline to execute the statute.”

But the memorandum examines whether a president can decline to enforce a statute in terms of whether the president has authority not to uphold a law recently approved by Congress. Dellinger states that if Congress is making progress toward passing a law that the president believes is unconstitutional, the White House should “promptly identify unconstitutional provisions and communicate its concerns to Congress.”

Such a situation would be different from what happened with DOMA, when the president determined the statute was unconstitutional nearly 15 years after a Republican Congress passed the bill and then-President Clinton signed it into law.

Jon Davidson, legal director for Lambda Legal, said there is “significant dispute” over whether a president can unilaterally decline to enforce a statute.

“When a president simply refuses to enforce the law, it’s not always clear that there is anyone who would have the legal ability to sue to require him to do so,” Davidson said. “This ability to exercise unilateral authority is troubling to many scholars.”

Still, Davidson noted that precedent exists for presidents to decline to enforce particular laws. For 25 years following its enactment in 1968, he said, every president refused to enforce a law seeking to make the Miranda case inapplicable to federal prosecutions until the courts struck down the law. Similarly, Davidson said numerous presidents refused to abide by laws allowing for legislative vetoes of presidential action, such as the 1973 War Powers Resolution.

For its part, the Obama administration seems intent on maintaining enforcement of DOMA even though the president has deemed it unconstitutional. In the case of Golinski v. U.S. Office of Personnel Management — concerning U.S. Ninth Circuit Chief Judge Alex Kozinski’s order to give court employee Karen Golinski benefits for her same-sex spouse — the Obama administration reiterates that it plans to continue enforcement of DOMA.

Kozinski ordered the U.S. government to answer questions about its continued refusal to offer Golinski federal benefits in light of its decision that DOMA is unconstitutional. On Monday, the Justice Department responded to Kozinski by saying that Obama is obligated to continue to enforce the law until either Congress repeals the statute or the courts strike it down.

“The President has determined that Executive agencies will continue to enforce Section 3 of DOMA, a course of action that accords appropriate deference to the Congress that enacted DOMA and allows the judiciary to be the final arbiter of DOMA’s constitutionality, as stated by the Attorney General,” the Justice Department states. “Moreover, as discussed, the Executive Branch has fulfilled its statutory obligation to notify Congress of the decision not to defend the statute and is committed to urging the courts to provide Congress with a full and fair opportunity to participate in the litigation of DOMA cases.”

Shin Inouye, a White House spokesperson, said Obama plans to continue to enforce DOMA even though he’s decided no longer to enforce the statute in court.

“Consistent with past practice when a president determines and announces publicly that a law is unconstitutional, the president has directed the Department of Justice to cease defending the law in court,” Inouye said. “Until there is a final determination by the courts of the law’s validity or it is repealed by Congress, however, it remains the law of the land and the president will continue to enforce it as such.”

Many legal experts who are LGBT advocates are wary of the prospects of the president declining to enforce a statute — even one as harmful to married same-sex couples as DOMA — simply on the basis that Obama deems the law unconstitutional.

Nan Hunter, a lesbian law professor at Georgetown University, said no one believes more strongly than she that DOMA is unconstitutional, but cautioned against having the president stopping to enforce DOMA because “you have to look beyond your nose when you’re thinking about the ramifications of these sorts of decisions.”

“We do not want to live in a country in which the president can declare statutes to be unconstitutional because he doesn’t like them,” Hunter said. “That’s really not a place where any of us should want to live.”

To support the idea of a president ceasing to enforce a statute because the administration believes it’s unconstitutional, Hunter said she wants to see a guiding set of principles that would allow Obama to stop enforcing the statute while being consistent with the rule of law.

“I think everyone agrees that the criteria would have to be extremely limited so that such a situation would be extremely rare,” Hunter said. “Maybe someone could persuade that this fits into that very limited criteria, but I just haven’t heard any.”

Richard Socarides, president of the media watchdog group Equality Matters, said given the history of DOMA, the Obama administration would be “hard pressed” to decide unilaterally to stop enforcing DOMA.

“I just think it would be disruptive to the normal order of things,” Socarides said. “I’m sure that their lawyers made pretty convincing arguments that the more orderly way to do this was to await a definitive ruling from the court, which should be fairly quickly forthcoming based upon the government’s new position.”

Amid this debate, another LGBT advocate is drawing on the recent change in how the Obama administration is handling DOMA to press the administration to exercise prosecutorial discretion in cases involving bi-national same-sex couples.

Lavi Soloway, an attorney with Masliah & Soloway PC in New York, is representing three married, same-sex bi-national couples in New York, New Jersey and California who are facing deportation proceedings.

Alex Benshimol and Doug Gentry are scheduled for a July 13 hearing in San Francisco; Monica Alcota and Cristina Ojeda are scheduled for a March 22 hearing in New York; and Henry Velandia and Josh Vandiver scheduled for a May 6 hearing in Newark, N.J. Each of the American spouses in these cases has filed green card petitions on behalf of their foreign national partners, although DOMA prevents American nationals from sponsoring their partners.

“We intend to argue as a result of the shifting position of the executive branch with respect to DOMA that it’s appropriate for the immigration judges and also for the attorneys that represent the Department of Homeland Security to exercise what’s called prosecutorial discretion, which simply means exercising more discretion in how to proceed with these cases,” Soloway said.

In the three pending cases, Soloway is asking for judges to consider changes that were made to how the Obama administration is handling DOMA in court and to put off deportation proceedings until another time when different relief of legal options may be available. According to Soloway, if anyone in these cases is deported, they won’t be able to return to the United States for another 10 years, even if DOMA is repealed or overturned sometime before then.

“I’m calling on the Department of Homeland Security … to develop reasonable innovative policy to deal with the particular moment that we’re in,” Soloway said. “We’re just in a very short-term moment where things are in a state of flux. I’m not asking them to stop enforcing any law; this is part of enforcing the law.”

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Pennsylvania

Pride Franklin County welcomes rural LGBTQ community

Pennsylvania organization planning October celebration

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When Pride Franklin County held its first Pride celebration in 2018, it sought to address a lack of LGBTQ programming in rural southern Pennsylvania. Greeted by more than 1,000 attendees at its inaugural event, Pride Franklin County’s leadership was reassured the event was something the area not only wanted, but needed. Since the onset of the COVID-19 pandemic, the local organization has once again sought to address community needs — in new and broadened ways.

Pride Franklin County operates under the Franklin County Coalition for Progress, a local social justice nonprofit that formed in the wake of the 2016 presidential election. “We live in a very rural, conservative area, but that election was a turning point all across the country,” explained Noel Purdy, a founder of Pride Franklin County and founder and president of FCCP.

“People came out of the woodwork who were worried about the LGBTQ community … and other populations that had experienced different forms of oppression in our community,” Purdy explained. This interest in supporting the local LGBTQ community led to a group of LGBTQ community members and allies leading the 2018 Pride celebration.

“We just really wanted to create a space where people know that they’re accepted, no matter who they are,” said Nathan Strayer, vice president of FCCP and a founder of Pride Franklin County. “We want people to know that you fit in. There are a lot of people here that are going to love you.”

But in 2020, at the peak of the event’s popularity — Strayer noted that upwards of 3,000 people attended Pride the year prior — Pride Franklin County had to cancel its programming in light of public health concerns. 

With the “momentum” it has going, Strayer explained that the organization did not want the pandemic to limit its ability to serve the Franklin County community: “ That’s when we really decided to make the entire initiative something bigger,” he said. “We’re not just here to throw a party.”

In 2021, the organization began advocating for a local non-discrimination ordinance codifying inclusivity for all community members, regardless of their identity. The Borough of Chambersburg Council, which represents the largest borough in the county, adopted the ordinance that fall — a major win for LGBTQ activists and allies in a rural Pennsylvania county that leans conservative socially and politically.

Yet, just months after the organization celebrated its achievement, new council members were elected in the borough in January 2022, and soon thereafter a majority of the council decided to repeal the non-discrimination ordinance.

While the ordinance’s revocation greatly disappointed Pride Franklin County, it also reminded its leaders and activists how much work was left to be done.

“From the growth of Pride to the pushback we’ve gotten from some of our elected officials here locally, it’s definitely lit a fire in us to continue pushing ahead so that we can truly make Franklin County an inclusive place for everyone,” Strayer emphasized.

This year, the organization launched its Franklin County Welcoming Project, which spearheads public displays of support to the LGBTQ community. In June, the organization received a media grant to create billboard and radio advertisements throughout the county advocating for inclusivity within the Franklin County community.

The organization also reached out to local businesses, providing them with custom decals to put in their windows after signing a pledge stating that they are a “diverse, inclusive, accepting, welcoming, safe space for all,” Strayer said, adding that, despite some initial hesitation, more than 100 local businesses signed the pledge and displayed the logo in their storefronts.

Pride Franklin County has also looked to meet the local demand for LGBTQ programming throughout the year while maintaining public health precautions. More recent projects have included mental health LGBTQ programming, community picnics, drag shows and a Taste of Pride food event. Strayer added that there has been significant demand from the community for more programming centering LGBTQ youth.

Purdy added that voting rights advocacy has become a center point of current efforts from the organization, as it hopes to educate the local community on the importance of their political involvement. “Hopefully, we’re inspiring more people to learn to pay attention more to what’s going on, and trying to understand the connection between policy and voting,” Purdy explained

While the process of founding a grassroots organization has come with obstacles, Purdy and Strayer both noted that the community response has been rewarding.

 “One thing that I’ve been surprised about is how you have this cultural context of being in a conservative area, thinking that that’s going to be a barrier to doing an event that supports the LGBTQ community, and that it’s going to be super controversial,” but ultimately receiving a positive reception from many community members and resources needed to keep the organization running, Purdy explained.

Getting Pride Franklin County up and running has “definitely been very emotional,” Strayer noted. When Strayer decided to come out in 1999, he turned to leaders in his school — a guidance counselor and principal — for advice, but he recalled them “both sitting down and looking at (him) like, ‘We don’t really know what to do,’” making him feel alone in a particularly important part of his life. But with Pride Franklin County, Strayer is “seeing how things are growing and changing.”

“There’s help out there for youth that are struggling with the same things I was struggling with,” Strayer said. “When I look back at when I was coming out, I thought, ‘This is never going to happen here.’ Seeing now that it is happening here, it’s just such an amazing feeling and it just gives me so much pride in my community.”

Pride Franklin County will host its Pride Festival 2022 on Oct. 9 from 11 a.m. to 5 p.m. More information can be found on the organization’s website at pridefranklincounty.org

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Florida

Over 100 LGBTQ-themed books in a Florida school district labeled with advisory warning

They warn: “this book has been identified by some community members as unsuitable for students.”

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Advisory Notice (via Twitter)

A southwest Florida district put parental “advisory notice” on over 100 books, many of which are race or LGBTQ-themed. 

A great number of books in Collier County Public Schools, either digital or physical, now have warning labels writing “Advisory notice to parents,” according to an NBC report,

The label, tweeted by nonprofit free-speech-promoting group PEN American, states, “This Advisory Notice shall serve to inform you that this book has been identified by some community members as unsuitable for students. This book will also be identified in the Destiny system with the same notation. The decision as to whether this book is suitable or unsuitable shall be the decision of the parent(s) who has the right to oversee his/her child’s education consistent with state law.” 

Stephana Ferrell, co-founder of the Florida Freedom to Read Project, which means to fight book banning, told NBC that she had a call from Elizabeth Alves, the associate superintendent of teaching and learning for Collier County Public Schools. In the call, Alves told her that the district added the labels starting in February. 

These measures, which Alves described as a “compromise,” happened after the district’s legal representative talked with the Florida Citizens Alliance, a conservative group which initiated a “Porn in Schools Report” project last year. The report included a list of books that “promote gender self-identification and same-sex marriage” as well as titles that include “indecent and offensive material,” as the group explained. 

Chad Oliver, the Collier County Public Schools spokesperson, on the other hand offered a different story. 

Oliver sent an email to NBC News and said, “Based upon advice from the General Counsel, we placed advisory notices on books about which parents and community members had expressed concern and in accordance with the recently passed Parents’ Bill of Rights Law (HB 241).” 

The law referred by Oliver is also known as the “Don’t Say Gay” law.

According to PEN America, there are 110 labeled books in total, and the list greatly overlaps with the one Florida Citizens Alliance inquired about with Collier County Public Schools. 

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National

Rep. Sean Patrick Maloney introduces bill to make monkeypox testing free

Health insurers would be required to cover costs

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Rep. Sean Patrick Maloney has introduced legislation to make monkeypox testing free to the public. (Blade file photo by Michael Key)

Rep. Sean Patrick Maloney (D-N.Y.), amid the ongoing monkeypox affecting gay and bisexual men, has introduced legislation in the U.S. House seeking to make testing for disease free to the public.

Maloney, one of seven openly gay members of Congress and chair of the Democratic Congressional Campaign Committee, said in a statement the measure, called the No Cost for Monkeypox Testing Act, would testing amid the monkeypox outbreak would be accessible to all.

“It is critical that we eliminate cost as a barrier to testing for monkeypox to ensure we can identify cases and prevent further spread,” Maloney said. “This legislation takes the lessons we learned from past public health emergencies and protects those at risk of contracting monkeypox by making tests accessible to everyone.”

The legislation would require private health insurers as well as Medicare and Medicaid to cover the costs of monkeypox testing at no expense to the patients, either through deductibles, co-payments, and co-insurance.

The bill introduction comes the week after the Biden administration declared the monkeypox outbreak a public health emergency and the same it has issued new guidance to enhance to the accessing of existing vaccines doses amid criticism federal officials were too slow in distributing shots.

The Washington Blade has placed a request in with the Centers for Disease Control seeking comment on the legislation. Secretary of Health & Human Services Xavier Becerra said Tuesday the federal government has the capacity to conduct an estimated 80,000 tests each week.

Maloney has been representing New York’s 18th congressional district, but after redistricting is now seeking re-election in the 17th district. Amid controversy over a potential showdown between Maloney and Rep. Mondaire Jones (D-N.Y.), who’s Black, another openly gay member of Congress and the current representative of that district, Jones has since opted to run for re-election in the New York’s 10th congressional district. Maloney is now running unopposed in the 17th.

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