National
Holder defends decision to drop DOMA defense
House Republicans criticize att’y gen’l for abandoning anti-gay law
U.S. Attorney General Eric Holder (Blade photo by Michael Key)
U.S. Attorney General Eric Holder endured a barrage of hostile questions from House Republicans Tuesday over the Obama administration’s decision to drop defense of the Defense of Marriage Act in court.
During an oversight hearing before the House Judiciary Committee, Holder defended President Obama’s determination that DOMA is unconstitutional in response to inquiries from GOP lawmakers amid other questions about the Justice Department’s role in preventing illegal immigration, prosecuting terrorist suspects and stopping child pornography.
Tough questioning for Holder particularly came from Rep. Jim Sensenbrenner (R-Wisc.), who recalled Holder’s Feb. 23 letter to Congress stating that the Justice Department would no longer defend DOMA in court and asked the attorney general simply, “Why’d you do it?”
Holder replied that litigation challenging DOMA in the Second Circuit — where there’s no legal precedent for laws related to sexual orientation — afforded the opportunity for the Justice Department to examine DOMA with heightened scrutiny and to determine the anti-gay law was unconstitutional.
“Applying the heightened scrutiny test, we did not think that the statute would pass constitutional muster, and as a result, I thought that we could not make reasonable arguments in defense of the statute — something that is done extremely rarely, but happens occasionally,” Holder said. “I recommended to the president that we not defend the statute and he agreed with that recommendation.”
But Holder’s answer apparently didn’t satisfy Sensenbrenner, who railed against the Justice Department for what he said was abandoning its duty by dropping defense of DOMA.
“Sexual preference has never been a protected class in any of our civil rights laws,” Sensenbrenner said.
In response, Holder noted that federal law anticipates that the executive branch may determine that some laws shouldn’t be defended in court and affords Congress the opportunity to take up defense of such statutes if the administration declines to defend them.
“The reasons for the determination were, as I said, this different standard and the fact that much has changed since the passage of the bill 15 years or so ago,” Holder said. “The Supreme Court has ruled that criminalizing homosexual contact is unconstitutional. Congress has repealed the ‘Don’t Ask, Don’t Tell’ policy.”
But Sensenbrenner observed that Congress has never taken action to repeal DOMA since the anti-gay law was enacted in 1996. Additionally, the Wisconsin lawmaker said the Lawrence v. Texas decision that Holder referenced was related only to the criminalization of homosexual acts and that “Don’t Ask, Don’t Tell” was a personnel issue in the Defense Department.
“DOMA does not deal with either of these two items,” Sensenbrenner said. “DOMA was an attempt to define for federal purposes that marriage is between one man and one woman, and 45 states in this country have also reached that conclusion — either through a constitutional amendment ratified by the people as was the case in Wisconsin or through statutory enactments by the legislature.”
Sensenbrenner’s remarks on DOMA are misleading in part because Section 3 of the statute has no impact on states where same-sex marriage isn’t available. The anti-gay law prohibits federal recognition of same-sex marriage only in jurisdictions where it’s available.
Rep. Jim Sensenbrenner (Blade photo by Michael Key)
Sensenbrenner added he would back defunding the Justice Department for the cost to the House of defending DOMA in court — a move proposed by House Speaker John Boehner (R-Ohio) last month after he hired former U.S. Solicitor General Paul Clement to take up defense of the statute.
“I certainly would support an effort to have the cost of Congress’ defending this provision … come out of the Justice Department’s appropriations, so that the message is sent down the street that an attorney general or president can’t willy-nilly decide that a law that they have voted against — if they’d been in Congress at the time — is unconstitutional,” Sensenbrenner said.
Holder replied that lower courts have also come to the conclusion that DOMA is unconstitutional and the notion that the Justice Department should lose funds over the decision to drop defense of the anti-gay law is “inappropriate.”
“The lawyers in the Department of Justice who would have worked on that case, believe me, have more than a full-time job, and they will have to use the time that might have been used in the DOMA defense — they will use it other areas,” he said.
The attorney general added Congress has the ability to approve funding for the expense of hiring Clement without reducing funds for the Justice Department.
Rep. Jerrold Nadler (D-N.Y.), the sponsor of DOMA repeal legislation, came to Holder’s defense during the hearing and said the Obama administration had no option but to determine the anti-gay law was unconstitutional following the 2003 Supreme Court decision striking down state sodomy laws in Lawrence v. Texas.
“I don’t believe that the administration had any choice in the matter at all by looking at the legal precedence,” Nadler said. “There had been no determination by any court, as far as I know, certainly by any circuit, of the proper standard of review after Lawrence. And if you look at the normal criteria for determining the standard of review that the Supreme Court has enjoined upon us as to what a suspect classification is … it meets all the tests, and you really had no choice but to go that route.”
Nadler added he hopes Congress doesn’t try to “start trying to intimidate” the Justice Department by threatening to restrict funds as a result of the department’s decision over DOMA.
Other Republicans on the committee also took jabs at Holder during their questioning for dropping defense of DOMA.
Rep. Trey Gowdy (R-S.C.), a freshman Republican who won as a Tea Party challenger in the 2010 election, asked if laws related to sexual orientation merited heightened scrutiny, why shouldn’t heightened scrutiny apply to laws on allowing cousins to marry, underaged marriage or polygamy.
“Since Lawrence, two courts of appeals have upheld a rational basis test for sexual orientation,” Gowdy said. “Why would you single out the one court of appeals that has applied a higher level of scrutiny, ignoring the two that apply to rational basis tests? That just strikes me as a political calculation and not a constitutional calculation.”
In response, Holder denied the decision the Justice Department made over DOMA had a “political component” and said the Supreme Court would ultimately have to address the issue of the anti-gay law’s constitutionality.
Michael Mitchell, executive director of the National Stonewall Democrats, told the Washington Blade after the hearing that he took offense to the suggestion that same-sex marriage is akin to the other unions Gowdy mentioned.
“Most people know there is a clear difference between those things and two loving, consenting adults who are willing to share their lives, and most importantly, take care of each other,” Mitchell said. “Apparently, love and commitment and ’til death do you part’ are not Republican values.”
House Judiciary Committee Chair Lamar Smith (Blade photo by Michael Key)
House Judiciary Committee Chair Lamar Smith (R-Texas), who last year sponsored a resolution condemning the federal court ruling finding California’s Proposition 8 was unconstitutional, expressed displeasure over Obama administration’s decision to drop defense of DOMA during his opening statement.
“I am concerned that in some cases, this administration may have placed political and ideological considerations above enforcing the law,” Smith said. “It seems the president’s personal, political views regarding [DOMA] may have trumped the obligations of the Department of Justice.”
Additionally, Rep. Dan Lungren (R-Calif.) chided Obama for dropping defense of DOMA after making no mention about doubts over its constitutionality during his 2008 presidential campaign.
“It would have been helpful if the president of the United States, as a constitutional law professor, during the time he was running for president, indicated that he had some constitutional questions about DOMA as he was going around the country saying he believes that marriage is between one man and one woman,” Lungren said.
As a chair of the House Committee on Administration, Lungren signed off on the House contract hiring Clement for a initial total sum cap of $500,000 and a blended rate of $520 an hour.
In response, Mitchell disputed the notion that Obama wasn’t fully disclosing his views in the 2008 presidential campaign and said Obama’s personal position on marriage has no bearing on the constitutionality of DOMA.
“By Rep. Lungren’s logic, the Republicans should have articulated in the midterm elections that they were going to focus solely on divisive social issues and the foisting of tax cuts on the wealthy instead of creating jobs,” Mitchell said.
Holder’s defense of the administration’s decision to drop legal defense of DOMA during the congressional hearing comes on the heels of comments he made to reporters last week backing Clement against criticism from LGBT people for taking up defense of the anti-gay statute.
“Paul Clement is a great lawyer and has done a lot of really great things for this nation. In taking on the representation — representing Congress in connection with DOMA, I think he is doing that which lawyers do when we’re at our best,” Holder reportedly said. “That criticism, I think, was very misplaced.”
National
Multi-billion-dollar 9/11 Victim Compensation Fund to continue until 2090
Eligibility for same-sex partner survivors remains unclear
As part of its commemoration of the 25th anniversary of the 9/11 terrorist attacks, the September 11th Victim Compensation Fund, a federally operated program, released information during the past week showing it has awarded more than $18 billion to over 77,000 9/11 victims and their families since 2011.
Officials with what’s now referred to as the VCF point out that it was created to provide compensation to individuals or to a court-approved personal representative of a deceased individual who were present at one of the three sites where the hijacked jetliners crashed.
Among those supported under the program are thousands of rescue workers, clean-up crews, and residents living near the World Trade Center Twin Towers destruction site who became ill, many of whom later died, by being exposed to the toxic fumes created by the fire and falling debris.
“Twenty-five years since that day, the September 11th Victim Compensation Fund has served tens of thousands of victims and their families, and we continue to receive over 750 new claims each month — a clear indication of the ongoing importance of our mission,” said Allison Turkel, VCF’s leader, who holds the title of Special Master.
In a Sept. 2 briefing for the news media in advance of the 9/11 anniversary commemoration, Turkel pointed out that the VCF operation was upgraded and expanded by separate laws passed by Congress in 2011 and 2019, with the 2019 law signed by President Trump providing full funding to “pay all eligible claims and extended the filing deadline to Oct. 1, 2090.”
LGBTQ advocacy organizations in New York and nationwide have reported that during the time shortly after the 9/11 attacks same-sex surviving partners of 9/11 victims learned they were ineligible for compensation benefits because their same-sex relationships were not legally recognized.
Nicole Nava, a VCF spokesperson, told the Washington Blade she would inquire into whether same-sex couple surviving partners were being supported under the VCF program in more recent years.
She said under long established VCF procedures, all applicants for benefit claims regarding a deceased person, whether same-sex or opposite sex, must be appointed as a Personal Representative of the deceased person by a state court. For D.C. residents, the probate division of the D.C. Superior Court appoints a Personal Representative.
“Claims for deceased victims (regardless of the cause of death) may be submitted only by the Personal Representative,” a statement on the VCF website says. “Each state has laws that define the process for appointment of the Personal Representative and the specific authority granted to that Personal Representative,” it says.
The Washington Blade couldn’t immediately determine the criteria for being approved as a Personal Representative by the D.C. Superior Court and various state courts, including whether a same-sex survivor partner would be eligible for such an appointment.
A spokesperson for the District of Columbia LGBTQ+ Bar Association, which includes many local attorneys who specialize in a wide range of specialized legal issues, couldn’t immediately be reached to find out if one or more of their members might be able to determine the same-sex partner eligibility for Personal Representative status.
In her news media briefing, VCF Special Master Turkel said detailed information about how best to file a claim for 9/11 victim compensation is available on the VCF website.
“Twenty-five years since the events of September 11th , 2001, we know it has become increasingly challenging for claimants to find documents needed to prove their presence at an eligible location, which is one of the key requirements to be eligible for compensation,” she said.
She was referring to the requirement that 9/11 surviving victims seeking a claim for support for injuries or illnesses related to the 9/11 attacks must prove they were present at the World Trade Center site, the Pentagon site, or the Shanksville, Pa. site where the hijacked jetliners crashed. Those requirements are separate from the less clearly defined criteria for same-sex couple victim survivor eligibility.
“Our team is committed to ensuring no claimant feels lost or overwhelmed when submitting a claim,” Turkel said at the briefing. “We have a great helpline with real live people who can answer or refer any questions that come in,” she added. “They engage in over 4,000 calls a month on average. We encourage folks to call 1-855-1555 with any questions.”
The VCF website, which has additional detailed information, can be accessed at www.vcf.gov.
National
Remembering the LGBTQ heroes of 9/11 terrorist attacks
25 years later, ‘the heartbreak remains strong’
Many in the LGBTQ community in the D.C. area and throughout the country were expected to join friends, co-workers, and family members this week in commemorating the 25th anniversary of the Sept. 11, 2001, terrorist attacks on the New York World Trade Center’s Twin Towers and on the Pentagon just outside D.C. as well as the jetliner hijacking that ended in a fatal crash in an open field in Shanksville, Pa.
A total of 2,996 people died in the 9/11 attacks, including 19 terrorists who hijacked four jetliners whose passengers included Americans and citizens of many other countries.
Activists involved with local and national LGBTQ advocacy organizations recall witnessing a coming together of LGBTQ people and their co-workers, neighbors, and family members to support one another during a time of unimaginable horror and grief.
Among those who lost their lives in the 9/11 terrorist attacks was American Airlines co-pilot David Charlebois, an out gay man and member of the Gay Pilots Association, who was on American Airlines Flight 77, which the terrorists crashed into the Pentagon.
Also among the terrorist victims in the 9/11 attacks was gay public relations executive and rugby enthusiast Mark Bingham of San Francisco, who was among several passengers of the hijacked United Airlines jet who reportedly stormed the cockpit to regain control of the jetliner before one of the hijackers crashed the jet into the countryside in rural Pennsylvania.
The jet had taken off from Newark, N.J. with its destination being San Francisco. Investigators learned the hijackers turned the plane around and were heading to Washington, D.C., with plans to crash it into the White House or the U.S. Capitol.
The passengers, including Bingham, who stormed the cockpit and were among the 44 passengers and crew who lost their lives in the crash are credited by investigators and family members and friends with saving the lives of hundreds of others if the hijackers succeeded in crashing into the White House or Capitol.
Among the other LGBTQ people known to have lost their lives in the 9/11 attacks was Father Mychal Judge, 68, a gay Franciscan priest who served as a Catholic chaplain for the New York City Fire Department. According to the National Catholic Reporter, Judge rushed to the scene of the World Trade Center shortly before the Twin Towers collapsed. He was fatally struck by debris falling from the south tower while giving last rites to a fallen firefighter, the Catholic publication reported.
“He was a decent, wonderful human being,” said New York gay journalist Andy Humm, who had interviewed Judge for LGBTQ-related stories prior to the 9/11 attacks. “I saw him at many demonstrations for gay and AIDS causes, showing up in his Franciscan monk’s cassock,” Humm told the Washington Blade five years ago at the time of the 9/11 20th anniversary. “And he was equally beloved by the fire department, there at every major fire tragedy in the city, lending moral support to firefighters,” Humm said.
Francis DeBernardo, executive director of New Ways Ministries, a Maryland-based LGBTQ Catholic group that advocates for LGBTQ supportive policies within the church, reported five years ago that his group was supporting an effort to call on the Catholic Church to officially recognize Fr. Judge as a saint by canonizing him. But DeBernardo told the Blade this week that those efforts failed to obtain the needed support from various Catholic entities, including the Franciscan Order of Friars Minors, of which Judge was affiliated, ending efforts to canonize Judge as a saint.
DeBernardo has written a book about Judge’s life and legacy published in 2023 called “Mychal Judge:Take Me Where You Want Me to Go.”
Among the other widely reported LGBTQ victims of the 9/11 terrorist attacks were a gay couple from California, Daniel Brandhorst and Ronald Gamboa, and their adopted son, David, who were among those who died aboard the United Airlines flight that crashed in Pennsylvania. The Los Angeles Times reported that Brandhorst, an attorney, and Gamboa, the manager of a Santa Monica Gap store, had adopted three-year-old David when he was an infant.
For many LGBTQ residents of New York and the D.C. area, the suffering over the loss of loved ones, including same-sex partners, was heightened a short time later when they learned they were initially ineligible for local and federal programs aimed at providing financial assistance to survivors of the 9/11 attack victims because same-sex couples were not legally recognized.
At the urging of LGBTQ rights organizations, state and local officials in the New York and the D.C. area took steps to address the initial denial of financial support for surviving same-sex partners In programs under their control. Officials with a massive federal aid program for 9/11 survivors, however, said they did not have legal authority to authorize payments to same-sex partners.
The officials, in the administration of then-President George W. Bush, said the best they could do would be to leave it up to local authorities to determine whether state probate laws would recognize a same-sex partner as a family member for eligibility in the federal aid program for 9/11 survivors, many of whom lived in states outside the New York and D.C. area.
Nicole Nava, a spokesperson for the September 11th Victim Compensation Fund, a federally funded program established to compensate for physical harm or death caused by the 9/11 terrorist attacks, including support for surviving family members, said she would inquire into whether same-sex surviving partners were being supported under that program in subsequent years in response to a request from the Washington Blade.
Jenny Pizer, an attorney for the LGBTQ litigation group Lambda Legal, which supported LGBTQ partner survivors of victims of the 9/11 attacks, said the information she and her organization had showed that many if not most of the LGBTQ partner survivors were unable to obtain the federal Victim Compensation Fund payment benefits that married heterosexual spouses obtained. She said she didn’t have a definitive answer on whether some LGBTQ surviving partners were compensated.
However, at least one case where an LGBTQ partner was compensated was reported by the Washington Post in a Jan. 22, 2003, news story about Peggy Neff, the lesbian partner of 18 years of Sheila Hein, 51, a civilian employee at the Pentagon, who was killed when the terrorist hijacked jetliner crashed into the Pentagon.
The Post reported that the Sept. 11 Victim Compensation Fund, under the leadership of its director, Kenneth Feinberg, approved an award of $557,390 for Neff in compensation for the loss of her partner. The Post story quoted a spokesperson for the Human Rights Campaign as saying, “It is our sincere hope that this signals that other gay families who have suffered the loss of a loved one will be treated similarly.”
The compensation program, which is operated by the U.S. Department of Justice, remains in operation until 2090. The Blade will report on any additional similar awards for LGBTQ surviving partners if Nava provides such information.
Events commemorating the 25th anniversary of the 9/11 attacks were scheduled to take place this week at memorial sites honoring the 9/11 victims located outside the Pentagon in Arlington, Va., at the site of the World Trade Center Twin Towers in New York City, and the site of the jetliner crash in Shanksville, Pa., which is operated by the U.S. National Park Service.
The U.S. Congress in 2017 and 2021 approved separate bills signed by President Donald Trump during his first term in office and President Joe Biden creating the Global War on Terrorism Memorial and its construction, to be built on the National Mall in Washington, D.C. that’s scheduled to be completed in 2028.
The memorial, to be located near the Lincoln Memorial and Vietnam Veterans Memorial close to 23rd Street and Constitution Avenue, N.W., is intended to honor people who served and were lost in the wars and counterterrorism operations that followed the 9/11 attacks, including U.S. military operations in Iraq and Afghanistan.
Longtime LGBTQ rights advocate Jay Fisette, who at the time of the 9/11 attacks held the elected position of chair of the Arlington County Board, which serves as the county’s governing body, was among the Arlington officials that came to the Pentagon’s grounds in Arlington to oversee efforts by firefighters to rescue Pentagon workers on the day of the attack.
At an Oct. 7, 2001, 9/11 Day of Remembrance and Appreciation ceremony held in Arlington, Fisette expressed the views of many in the community in response to the 9/11 attacks.
“Tonight, our community gather as a family,” he told the gathering. “We gather in sorrow and in disbelief, in remembrance and appreciation,” he said. “But we come here, too, with resolve and pride. We come together as Arlingtonians who love our country, as Americans who love our country,” he said.
“Our enemies may hurt our bodies and destroy our buildings, but they will never defeat our determination to make this a world of peace and a community in which our children grow up safe and secure,” Fissette said.
Although some of the same-sex partners of those killed in the 9/11 attacks faced obstacles in obtaining financial support through the federal 9/11 relief program, Tom Hay, the surviving partner of 14 years of American Airlines pilot David Charlebois was treated with respect and honor by American Airlines officials and colleagues at Charlebois’s funeral mass at D.C.’s St. Matthew Cathedral.
More than a dozen uniformed company pilots and flight attendants attended the mass. And a press release issued by American Airlines mentioned Charlebois’s relationship with Hay and told how Hay stood with Charlebois when Charlebois advocated for equal rights for LGBTQ people in the airline industry through his involvement with the National Gay Pilots Association.
“David was an early member of the NGPA,” the American Airlines statement said. “His contribution helped ensure ongoing progress toward fairness and solidarity.”
Activists in New York have said the 9/11 attacks drew attention to the need for legal protections for same-sex couples, including the need for recognition of same-sex marriage, which the U.S. Supreme Court legalized nationwide in its landmark ruling in 2015.
But LGBTQ advocates in New York pointed to the difficulties LGBTQ surviving partners faced when desperately seeking to find out if a partner had survived at the site of the World Trade Center attack where the Red Cross and other emergency relief agencies set up a station near the site of the attack.
“Literally, gay people had to go there, turn around, go back home, and get some paperwork that spouses didn’t have to get to prove a relationship existed,” said Ross Levi, who at the time served as executive director of the New York LGBTQ advocacy group Empire State Pride Agenda.
“You were nervous and scared and sad and then you had to go through that,” Levi told the Blade in 2011 at the time of the 10-year anniversary of the 9/11 attacks. “And worse yet, other people turned them away, even with the paperwork, saying sorry you’re not a family according to our guidelines.”
Activists said New York City and New York State officials quickly recognized the inequities faced by same-sex partner survivors and took steps to change polices and laws to correct the situation. Among other things, New York’s then-Gov. George Pataki (R) issued an executive order in October 2001 that included surviving partners of gay and lesbian victims of the World Trade Center attacks in receiving full spousal benefits from the state’s Crime Victims Board.
In a separate development, the LGBTQ litigation group Lambda Legal, ESPA, the Human Rights Campaign, and other LGBTQ advocacy groups created the September 11 Gay & Lesbian Family Fund to provide some support to surviving same-sex partners who were ineligible for help from the federal relief fund program.
“The terrorist attack on September 11th is a tragedy that touched every American, impacting people and families from all walks of life,” Jonathan Lovitz, the Human Rights Campaign’s Senior Vice President for Campaigns and Communications told the Blade in a statement this week.
“As in all moments in American history, LGBTQ+ Americans were there, and feel the impact of this day,” he said. “As we remember the lives lost 25 years later, the heartbreak remains strong and the work to ensure that every person can live safe from violence in this country continues.”
2026 Midterm Elections
Chris Pappas wins NH Democratic Senate primary
Gay congressman running to succeed retiring U.S. Sen. Jeanne Shaheen
New Hampshire Congressman Chris Pappas on Tuesday won the Democratic primary in the race to succeed retiring U.S. Sen. Jeanne Shaheen (D-N.H.) in the U.S. Senate.
Pappas defeated Karishma Manzur, who was his primary challenger, by a 61.8-36.1 percent margin.
The gay congressman will face off against former U.S. Sen. John E. Sununu, who defeated former U.S. Sen. Scott Brown in the Republican primary.
“Tonight’s victory sends a clear message that voters are looking for leaders who will fight for their rights, their freedoms, and to be treated with dignity and respect,” said Human Rights Campaign President Kelley Robinson in a statement.
She campaigned for Pappas in Manchester, New Hampshire’s largest city, on Aug. 30.
“Chris Pappas has delivered results, stood up for equality, and showed up for the people he serves,” said Robinson in her statement. “HRC was proud to mobilize Equality Voters across New Hampshire to help power this win. We don’t have a second to waste between now and November. We look forward to continuing our work with Rep. Pappas as he drives toward victory in November so he can help return a pro-equality majority to the United States Senate.”
A poll the University of New Hampshire Survey Center released on Aug. 26 showed Sununu ahead of Pappas by a 45-43 percent margin if they were to face off in the general election. The margin of error is +/-2.1 percent.
Pappas would become the first openly gay man elected to the U.S. Senate if he were to win in November.
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