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Court declares Prop 8 unconstitutional

Scope of ruling limited to California; appeal planned

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In a two-to-one decision, a panel of the Ninth Circuit Court of Appeals has ruled that Proposition 8 is unconstitutional in a federal case challenging California’s marriage ban.

The opinion, authored by Judge Stephen Reinhardt, affirms Judge Vaughn Walker’s 2010 ruling that the law passed by California voters at the ballot violates the Equal Protection clause of the 14th Amendment to the U.S. Constitution because it “serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples.”

The court also rejected the argument that Judge Walker should have recused himself from the case because of his sexual orientation and relationship status.

Legal experts began to weigh in on the meaning of the decision immediately.

“I think the biggest story is how narrow [the majority decision] really is,” Douglas NeJaime, associate professor at Loyola Law School, Los Angeles, told the Blade Tuesday. “Which in some ways I think that might disappoint some folks who were hoping it would expand to more states, but I think in terms of setting it up for a Supreme Court review — either the Supreme Court not taking it, or approving it — for supporters of same-sex marriage, this is actually the most strategically sound way for the case to proceed.”

Legal experts agree that the decision represents a big win for same-sex couples in California, even though it was a narrow decision limited to California. The Ninth Circuit encompasses multiple Western states and some Prop 8 opponents had hoped the court’s decision would impact a wider swath of the country.

“The decision is a very narrow decision striking down Proposition 8 on grounds that are very unique to California,” NeJaime told the Blade. “What this doesn’t do is directly affect the laws of the majority of states that don’t allow same-sex couples to marry. It doesn’t announce that same-sex couples have a right to marry under the federal Constitution, and it doesn’t engage the question of whether sexual orientation-based classifications should be subjected to some heightened form of scrutiny under the federal Constitution. So it’s a very narrow ruling that only directly impacts the law in California.”

If left to stand, however, what the decision would do, NeJaime says, is allow same-sex couples to marry in California.

“What you would likely have happen is a bunch of other people would file cases in other states, and you would have more litigation, and the states that have a system most directly related to the court’s ruling here, would be states that have domestic partnership or civil union statues that allow same-sex couples to have all of the same rights and benefits of different-sex couples,” NeJaime said. “So Washington, Nevada, Oregon, Hawaii, Delaware, Illinois, Rhode Island, New Jersey, those states’ laws would probably be the first to be challenged.”

Though the court sided with the plaintiffs, the ruling is stayed until the decision goes into effect, in what is called a “mandate.” This means that same-sex couples will not be able to marry in California until the Ninth Circuit lifts the stay, the Supreme Court decides to uphold the ruling or pass on the case, or the state voters decide to overturn the law at the ballot.

Proponents of Prop 8 now have 15 days to ask for what is called an ‘en banc’ decision by a larger random panel of 11 of the court’s 24 judges — a crap shoot for proponents of the law who could not guarantee the judges assigned to the panel are sympathetic. Proponents also have 90 days to appeal directly to the Supreme Court, if they so choose to skip the ‘en banc’ rehearing.

Though at the onset of the case, gay rights advocates were excited about the prospect of the case advancing to the Supreme Court where they hoped it could be used to strike down same-sex marriage bans across the nation, some legal experts say it’s not so simple.

“Everyone thought this case was going to Supreme Court, but given how narrow this ruling is, the Supreme Court might very likely just not take the case,” NeJaime told the Blade. “The Supreme Court does not have to take the case. And they might decide ‘this only affects California. We’ll let it stand. And we’ll take a case down the road.’”

“If they take the case, then the decision by the Ninth Circuit has really set it up so that the Supreme Court can affirm the decision, meaning strike down Proposition 8, by not having to reach very far.”

NeJaime said that the Reinhardt opinion, much like the Walker opinion, borrows heavily from the case law history of swing vote Supreme Court Justice Anthony Kennedy, whom NeJaime says the opinion “aims” for. Kennedy wrote the majority opinion in the Romer v. Evans case that struck down an anti-gay constitutional amendment in Colorado’s Constitution nearly 20 years ago, but that doesn’t mean the justice will help the plaintiffs change the law across the land.

“So basically because its a narrow ruling, and because the court applied the lowest form of scrutiny for equal protection purposes, the Supreme Court could affirm the decision without having to expand much on its current case law, and without having to comment on the laws of the other states. It could issue a ruling that would allow same-sex marriage in California but doesn’t affect anything else directly. That’s the preferred course of the court, is to issue narrow, incremental, case-by-case rulings, rather than broad sweeping rulings, that invalidate the majority of states’ laws in one decision.”

In 2008, more than 18,000 same-sex couples were married in California during a brief period following the decision by the California Supreme Court that barring same-sex couples from marriage violated the California Constitution. The weddings were halted by the November 2008 voter-enacted law, but the court ruled that the 18,000 marriages performed should remain valid.

For now, same-sex couples in California who did not get married during the narrow 2008 window are in legal limbo, waiting for the stay on the original Judge Walker decision to be lifted once and for all, but that could take some time.

“The mandate would issue seven days after the time for filing a petition for rehearing expires, or seven days after the denial of a petition for a rehearing,” NeJaime told the Blade. “They have 14 days to file the petition, so technically, it could issue as soon as 21 days. But more likely it will be later than that, and if they take it for a rehearing, it would be even later than that, so the soonest would be within three weeks.

“But in the meantime, there’s probably going to be additional motions to stay, so that doesn’t mean that once the mandate is issued, same-sex couples can marry,” NeJaime added.

Despite the continued wait, LGBT rights organizations were quick to hail the victory.

“Today’s decision heartens and gives hope to the 15,698 loving couples in California who are raising more than 30,000 children,” said Family Equality Council Executive Director Jennifer Chrisler. “They, like all Americans, understand that while love makes a family, there is no denying that marriage strengthens it. These parents have raised their children to love their country, support their friends and treat their neighbors with respect. Now they only ask for the fundamental American freedom to demonstrate their love and commitment to their family through marriage.”

California-based Courage Campaign also weighed in minutes after the announcement of the ruling upholding Judge Walker’s decision.

“The 9th Circuit did what it must: it ruled that Judge Walker is competent, not somehow diminished for being gay and it ruled that the Constitution of the United States indeed provides equal protection and due process to all Americans, not just some Americans,” said Rick Jacobs, chair and founder of the Courage Campaign.

Even the LGBT military group Servicemembers Legal Defense Network weighed in with a statement by outgoing executive director and Army veteran Aubrey Sarvis.

“SLDN welcomes today’s important ruling by the Ninth Circuit affirming the lower court decision that Proposition 8 is unconstitutional; indeed, fairness and equality have carried the day,” said Sarvis. “This victory strengthens our case on behalf of married gay and lesbian service members and veterans as we seek to gain equal recognition, support, and benefits for them and their families. This is an historic win for supporters of full equality in the military and in our country.”

“We’re thrilled that today the Ninth Circuit reaffirmed that under our Constitution, all loving couples must be allowed to marry, regardless of the gender of either partner,” said Transgender Law Center Executive Director Masen Davis. “The state should not be in the business of policing who can marry based on gender. I’m optimistic that full equality for all our families is on the horizon.”

 

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The White House

Country’s first nonbinary state lawmaker participates in Gaza ceasefire hunger strike

Oklahoma state Rep. Mauree Turner is Muslim

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Oklahoma state Rep. Mauree Turner in front of the White House on Nov. 30, 2023, while taking part in a hunger strike for a ceasefire in the Gaza Strip. (Washington Blade photo by Michael K. Lavers)

The country’s first nonbinary state lawmaker last week participated in a hunger strike for a permanent ceasefire in the Gaza Strip that took place in front of the White House.

Oklahoma state Rep. Mauree Turner took part in the 5-day action alongside actress Cynthia Nixon, Virginia state Del. Sam Rasoul, Delaware state Rep. Madinah Wilson-Anton, New York State Assemblymember Zohran Mamdani, Michigan state Rep. Abraham Aiyash, former New York Congressional candidate Rana Abdelhamid, Muslim Girl.com Founder Amani Al-Khatahtbeh, Adalah Justice Project Director of Strategy and Communications Sumaya Awad and Linda Sarsour. The U.S. Campaign for Palestinian Rights, Jewish Voice for Peace, Democratic Socialists of America, IfNotNowMovement, Dream Defenders, the Institute for Middle East Understanding and the American-Arab Anti-Discrimination Committee are the organizations that either participated in the hunger strike or endorsed it. 

“This is the place where you should be,” Turner told the Washington Blade on Nov. 30 while they were standing in front of the White House.

Turner is from Ardmore, Okla., and has been a member of the Oklahoma House of Representatives since 2021. They are the first Muslim person elected to the Oklahoma Legislature.

“Oklahoma is no stranger to genocide, displacement, uprooting communities — beautiful, vibrant, vulnerable communities — just because they could,” said Turner, referring to the treatment of Native Americans in what became Oklahoma during the 1800s and early 1900s. “Specifically as a Muslim and as an Oklahoman it is my duty to be here.”

The hunger strike took place nearly two months after Hamas, which the U.S. has designated a terrorist organization, launched a surprise attack against communities in southern Israel from Gaza.

The Israeli government has said roughly 1,200 people have been killed, including at least 260 people who Hamas militants murdered at an all-night music festival in a kibbutz near the border between Israel and Gaza. The Israeli government also says more than 5,000 people have been injured in the country since the war began and Hamas militants kidnapped more than 200 others.

Yarden Roman-Gat, whose gay brother, Gili Roman, spoke with the Washington Blade on Oct. 30 in D.C., is one of the 105 people who Hamas released during a truce with Israel that began on Nov. 24 and ended on Dec. 1.

The Hamas-controlled Gaza Health Ministry says more than 15,000 people have died in the enclave since the war began. Israel after Oct. 7 cut electricity and water to Gaza and stopped most food and fuel shipments.

“It’s absolutely wild to think about what is happening to the Palestinian people in Gaza and in the West Bank,” said Turner.

Turner noted the war began two days before Indigenous Peoples’ Day.

“By October the 10th, when the world was really seeing what was happening in Gaza,” they said. “So many people who had celebrated specifically Indigenous Peoples’ Day had also sided with the Israeli government over the indigenous people of the land.”

‘The death of civilians is absolutely horrible’

Turner in response to the Blade’s question about the Israelis who militants killed on Oct. 7 emphatically said “the death of civilians is absolutely horrible.” Turner added they “cannot stress enough that when we back people into a corner, we don’t know what will happen.”

“The truth of the matter is our governments, our governmental officials do not have to put people in a corner,” said Turner.

Turner was particularly critical of the Israeli government’s actions in Gaza after Oct. 7.

“I don’t think there’s any place where a government has the power to shut off right water, food, healthcare supplies, things like that,” they said. “It’s just in doing so against a population that has 2 million people … that’s not anyone looking for equitability or justice. That is genocide against its people.”

Turner noted Republican Oklahoma Gov. Kevin Stitt continues to publicly support Israeli Prime Minister Benjamin Netanyahu. Turner told the Blade “when we oppress people over decades and decades … we cannot, we don’t get to cherry pick” or “we don’t get to tone police or however they are fighting back to be heard, to be, to live for vibrant lives.”

“We cannot tell oppressed people how to hurt out loud,” they said, specifically referring to Palestinian people. “We can create governments that care for people from a community standpoint who are thinking creatively about how we provide aid and support and we can ask our elected officials (members Congress, President Joe Biden, state and local officials) to teach truth. We can ask them to continuously make sure that we are providing the best care and understanding of the situations at hand. We can ask them to do a ceasefire to stop sending aid to the Israeli government and emboldening their military forces.”

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Climate change threatens LGBTQ resort communities

Provincetown, Cape Cod, other destinations face ‘existential’ challenge

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The beach in Fire Island Pines, N.Y., on New York's Fire Island has been the scene of extreme erosion in recent years. (Photo courtesy Actum Vice President Savannah Farrell)

As the world reckons with worsening impacts of climate change, some LGBTQ communities and destinations are grappling with the “existential” threat posed by the crisis.

The United Nations’ annual climate conference will take place in the United Arab Emirates through Dec. 12. LGBTQ climate activists, however, are concerned about representation at COP28 because the meeting is taking place in Dubai, which is in a country that criminalizes consensual same-sex sexual relations.

President Joe Biden on Nov. 14 delivered a statement on climate change policy during his administration. Biden spoke on the American Rescue Plan, the Fifth National Climate Assessment, new transparency about the state of the country’s climate and more. 

Biden emphasized “advancing environmental justice for disadvantaged communities, because they’re the ones always left behind.” Evidence of this trend can be found in LGBTQ destinations across the country.

Julian Cyr, a gay Massachusetts state senator who represents Provincetown and other towns on Cape Cod, recognizes the state’s importance to the LGBTQ community, stating that “according to the Census, it may be the highest per capita density of LGBTQ+ people certainly in the United States, and perhaps internationally.”

Provincetown, a popular gay destination located at the tip of Cape Cod, is facing worsening storms as climate change advances. These storms reshape the natural environment as well as damage the built environment. A series of Nor’easters in 2018 flooded Provincetown, damaging homes, businesses and the town hall. 

“The climate crisis is … already forcing us to do a lot of planning and reevaluation of coastal resilience of our built environment,” said Cyr. 

All hope isn’t lost yet for Massachusetts destinations. 

Then-Gov. Charlie Baker, a Republican, in 2022 introduced the Climate Roadmap, which aims for zero carbon emissions by 2050. The state also is building the country’s first offshore wind farm, Vineyard Wind. 

Cyr said citizens can push for climate change legislation by making the urgency known to their local elected officials.  

“This is truly existential for coastal, low-lying communities like those that I represent,” said Cyr. “It’s really important that constituents weigh in with their elected officials and make sure that they know that this issue is crucially important. I don’t know how we not solve this issue.”

Experts are seeing similar effects in nearby LGBTQ destinations, such as Cape Cod.

“One thing that we do see already is the effect of storms,” said Mark Adams, a retired Cape Cod National Seashore cartographer. “Those storms are the signal of sea level rise.”

Adams said that as a result of rising temperatures and new, intense storms, he is also starting to see damaged ecosystems, unnatural migration patterns of local wildlife, and planting-zones moving northward. Adams told the Washington Blade these changing ecological relationships may mean an uncertain future for life along the coast: the self-sustaining lifestyle and seafood could be at risk as ocean acidification puts shellfish in danger. 

“If you can’t get oysters and clams, that would really change life on Cape Cod,” he said. 

In addition to the damage caused by storms, Cape Cod’s natural environment is also facing the threat of littering and plastic pollution. While the area’s beaches keep tourism alive, fishing gear and marine debris washing up on the shore are growing concerns for the community. 

Adams said this is where the choices individuals make to avoid plastics will make a huge difference in the future of these communities. 

“There are little choices we can make to get off of the petroleum stream,” he said.

A car in floodwaters in Miami Beach, Fla., in July 2018. Climate change has made Miami Beach and other coastal cities more susceptible to flooding. (Washington Blade photo by Michael K. Lavers)

Aspen Gay Ski Week adapts to warmer winters

Aspen Gay Ski Week was the first gay ski week, and it is the largest such event in the world, and is the only non-profit gay ski week.

Rising temperatures and short winters are growing concerns for destinations like Aspen, Colo., that depend on snow, according to AspenOUT Executive Director Kevin McManamon.

“As our seasons get shorter … we have to plan for the future,” McManamon said.

Colorado has also faced increased forest fires in recent years.

The Marshall Fire in 2021 devastated the state, destroying buildings and killing two people. Increasingly dry conditions feed into these fires, which will mean more impacts on humans, nature, and infrastructure.

McManamon nevertheless said he is optimistic about Aspen Gay Ski Week’s future due to the organization’s forward thinking. One such initiative is its involvement with Protect Our Winters, an organization that advocates for protecting the environment with the support of the outdoor sports community. 

“The cool part about being here in Aspen and having a great relationship with Aspen Skiing Company is that they are … on the leading edge of climate change,” said McManamon. 

Stronger storms threaten Fire Island

Fire Island Pines on New York’s Fire Island has been a safe haven for the LGBTQ community since the 1950s.

Fire Island Pines Property Owners’ Association President Henry Robin notes natural disasters cause more damage in the community as opposed to those that are across the Great South Bay on Long Island because Fire Island is a “barrier island.”

“When Superstorm Sandy hit, or when a Nor’easter hits, or a hurricane hits, the brunt of the storm is first taken by the Pines,” said Robin. 

Robin said “the Pines is thriving” just over 11 years since Sandy, but there is no climate change response. The federal government implemented a beach restoration project for Fire Island, and later, the U.S. Army Corps of Engineers created an engineered beach for the Pines. 

Robin also formed three task forces — comprised of community members — to address local concerns, many of which were climate related, according to focus groups and a survey. Robin is also hoping to introduce recycling programs and solar energy to the Pines. 

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The White House

US announces additional sanctions for Ugandan officials

Anti-Homosexuality Act signed on May 29

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LGBTQ and intersex activists protest in front of the Ugandan Embassy in D.C. on April 25, 2023. (Washington Blade photos by Michael K. Lavers)

Secretary of State Antony Blinken on Monday announced sanctions against current and former Ugandan officials who committed human rights abuses against LGBTQ people and other groups.

“After Uganda’s flawed 2021 presidential elections, I announced a visa restriction policy targeting those believed to be responsible for, or complicit in, undermining the democratic process in Uganda,” said Blinken in a statement. “At that time, I implored the government of Uganda to significantly improve its record and hold accountable those responsible for flawed electoral processes, violence and intimidation.”

Blinken announced “the expansion of the visa restriction policy to include current or former Ugandan officials or others who are believed to be responsible for, or complicit in, undermining the democratic process in Uganda or for policies or actions aimed at repressing members of marginalized or vulnerable populations.” 

“These groups include, but are not limited to, environmental activists, human rights defenders, journalists, LGBTQI+ persons and civil society organizers,” he said. “The immediate family members of such persons may also be subject to these restrictions.”  

Blinken added the U.S. “stands by the Ugandan people and remains committed to working together to advance democracy, human rights, public health and mutual prosperity.”  

“I once again strongly encourage the government of Uganda to make concerted efforts to uphold democracy and to respect and protect human rights so that we may sustain the decades-long partnership between our countries that has benefited Americans and Ugandans alike,” he said.

Ugandan President Yoweri Museveni on May 29 signed the Anti-Homosexuality Act, which contains a death penalty provision for “aggravated homosexuality.” The State Department a few weeks later announced visa restrictions against unnamed Ugandan officials.

The Biden-Harris administration in October said it plans to remove Uganda from a program that allows sub-Saharan African countries to trade duty-free with the U.S. The White House has also issued a business advisory for Uganda in response to the Anti-Homosexuality Act.

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