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HISTORIC: Oral arguments heard in DOMA challenge

First time appeals court has considered case to overturn anti-gay law

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BOSTON — Oral arguments in a landmark legal proceeding challenging the Defense of Marriage Act unfolded Wednesday, marking the first time an appeals court has heard a challenge to the anti-gay federal law.

Lawyers squared off over the constitutionality of DOMA, amid discussion about whether the law fails a rational basis standard of scrutiny or interferes with a state’s rights under the Tenth Amendment.

Stuart Delery, who’s gay and the Justice Department’s acting assistant attorney general for the civil division, surprised many when he said the Obama administration wouldn’t defend DOMA on any basis, including under rational basis review.

Last year, the Obama administration said it would no longer defend DOMA in court, on the basis that President Obama had determined that the anti-gay law fails heightened scrutiny because it discriminates against gay couples.

Asked by Judge Juan Torruella whether the administration has a position on the rational basis test for the law, Delery replied, “We don’t.”

Delery’s position is significant because U.S. District Judge Joseph Tauro in 2010 ruled in favor of plaintiffs on the basis that DOMA didn’t pass the rational basis standard review, or a rational means to a legitimate governmental end. Judges on the First Circuit will have to decide whether to affirm or overrule this decision.

Two cases challenging the constitutionality of DOMA are before the First Circuit: Gill v. Office of Personnel Management, filed by Gay & Lesbian Advocates & Defenders, and Commonwealth of Massachusetts v. Department of Health & Human Services, filed by Massachusetts Attorney General Martha Coakley.

The three-judge panel hearing the cases is made up of Chief Judge Sandra Lynch as well as Torruella and Judge Michael Boudin. Lynch was appointed by a Democrat, former President Bill Clinton, while Torruella was appointed by former President Ronald Reagan and Boudin was appointed by former President George H.W. Bush.

Despite the administration’s position on rational basis review stated during the hearing, Delery said heightened scrutiny, or examining the law on the assumption that it’s discriminatory toward a group of people, is the appropriate way to handle DOMA because Congress passed DOMA in 1996 out of animus toward gay people.

Delery maintained that the name “DOMA” itself indicates that the anti-gay law was intended to discriminate against LGBT families.

“It was a defense against something, and that something was same-sex couples,” Delery said.

But the administration wasn’t willing to accept all arguments against DOMA. Delery said the administration doesn’t share the view that DOMA is unconstitutional on the basis that it interferes with a state’s Tenth Amendment right to regulate marriage, saying “that’s where we disagree” with the lawsuit.

Delery said Congress has the authority to define federal programs — even those related to marriage, where states traditionally have had jurisdiction on who can and cannot marry.

Defending DOMA in court was Paul Clement, a former U.S. solicitor general. After the Obama administration declared it would no longer defend DOMA, House Speaker John Boehner hired Clement to advocate for DOMA on behalf of the Bipartisan Legal Advisory Group, which voted along party lines to take up defense of the law.

Kicking off the arguments, Clement said the Obama administration is free to change its opinion on whether DOMA would pass a rational basis test, but nonetheless the administration has previously argued in a legal brief that DOMA shouldn’t be struck down on this standard.

“It’s certainly open to the president and the attorney general to change their position, and to say that heightened scrutiny should apply, but that doesn’t make their prior submission go away, and it doesn’t make the arguments in their about why there are rational bases — in addition to some that we’ve covered in our brief — to support the statute,” Clement said.

Clement offered many reasons why DOMA should be upheld — among them was an assertion that opposite-sex marriages advance governmental interests because they can produce “unplanned offspring” unlike same-sex couples.

Additionally, Clement said DOMA isn’t an attempt to “override a state’s definition” of marriage, but merely allows the federal government to “preserve the status quo” as states began legalizing same-sex marriages in 1996 to keep benefits from federal programs, like Social Security, flowing only to opposite-sex married couples as they had in the past.

But Delery blasted the notion that procreation is a necessary component for any marriage — whether the union is opposite-sex or same-sex — saying straight couples can marry even if they don’t want and can’t have children.

“On the flip side, there are many children — hundreds of thousands, I think is the best estimate — who are being raised by same-sex parents in this country, and DOMA has the effect of denying those children the stability and protection that many of the federal benefits that we’re talking about in these cases would provide,” Delery said.

Significant discussion related to heightened scrutiny was focused on the case of Cook v. Gates, a challenge to “Don’t Ask, Don’t Tell” in which the First Circuit ruled that sexual orientation shouldn’t be considered a suspect class. Clement argued that the First Circuit is bound by this precedent not to apply heightened scrutiny to laws affecting gay people. But attorneys opposed to DOMA said this case shouldn’t be applied to the anti-gay law because courts traditionally grant the military a high level of deference.

Mary Bonauto, GLAD’s civil rights project director, represented her organization during the hearing and said the law violates equal protection under the Constitution regardless of whether heightened scrutiny or rational basis review is applied to the anti-gay law.

“To this day, the federal government defers to state marital determinations where marital status is a factor for federal protections,” Bonauto said. “But for DOMA, same-sex couples who began marrying here eight years ago like our plaintiffs would have been included in those federal laws, but DOMA’s precise point was to prevent that conclusion and created an across the board exclusion.”

Massachusetts Assistant Attorney General Maura Healey argued on behalf of Massachusetts, saying that DOMA violates the state’s right under the Tenth Amendment to regulate marriage. She said an end to DOMA would return the federal government to “what it always has done” by recognizing state authority on which couples should be able to marry.

In her conclusion, Healey drew on the lifting of “Don’t Ask, Don’t Tell” and its implications for gay troops as a reason why the court should overturn DOMA.

“I’ll take you to our state veterans cemeteries because here the operations of DOMA really revives the concept of separate but equal,” Healy said. “In this day and age, when gay people can now go serve in the military, fight for our country and even die, unlike other married service members, they can’t be buried with their spouse on state land in our veterans cemetery. Instead, Massachusetts is essentially required to build on the next hillside over a cemetery for those veterans. We think that’s wrong.”

The panel has no set time to make a ruling in the cases, but advocates are hoping for a speedy decision. Once a decision is reached, it can be appealed either to the full First Circuit or the U.S. Supreme Court.

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Air Force base axes ‘Drag Queen Story Hour’

U.S. Sen. Marco Rubio (R-Fla.) welcomed the decision

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(Screenshot from U.S. Air Force's YouTube page)

A drag queen story hour scheduled to be held at the library in honor of Pride month at Ramstein Air Base in Germany was abruptly cancelled by the command staff of the 86th Airlift Wing on Thursday.

According to Stars and Stripes, the 86th Air Wing’s public affairs sent a statement to a radical-right anti-LGBTQ news outlet in Canada, The Post Millennial, which had requested comment to its article about the event and also accused the Air Force of pushing a more “woke” agenda among servicemen. 

“An advertisement was posted to the base library social media page before the event had completed Ramstein’s established processes for special observance coordination and approval.  The advertisement has been removed and the event will not take place. Ramstein leaders strive to foster a culture based on inclusion where all people are treated with dignity and respect, regardless of their political views, color of their skin or sexual orientation. The base’s established processes will ensure all future special observance events are properly reviewed and approved prior to advertisement.”

The Post Millennial’s story framed its reporting using hard-line right terms and descriptions of the LGBTQ community; “Drag Queen Story Hour has become a phenomenon in recent years, with men dressing up in clownish, garish costumes of women to read to children. Many drag queens have sexualized names, like Penny Tration.”

The conservative outlet also reported that one mom of a toddler, whose husband is stationed at the base, told The Post Millennial that while she often takes her child to the library for story time, she was “shocked to see the Ramstein Air Force Base Library plans to hold an official drag queen story hour for children.”

“I find it wholly inappropriate that the MILITARY of all places will be using public funds to sexualize children,” she said.

According to Stars and Stripes, the cancellation of the drag queen book reading drew mixed opinions from the Kaiserslautern Military Community, which encompasses Ramstein. With tens of thousands of Defense Department personnel and their families, it is the largest U.S. military community overseas.

An opponent of the wing’s decision launched a petition at Change.org to try to get the event reinstated.

“Now more (than) ever we need to show our support to our enlisted members and spouses in the face of blatant discrimination,” wrote the petition organizer, named Natalie Oyer, who described herself as spouse to a transgender wife.

“I don’t know if anything can bring back the events though,” Oyer wrote. “Most of the queens are enlisted.”

Stars and Stripes also reported that the 86th Airlift Wing, axed a separate drag karaoke event scheduled to be held at the base enlisted club, according to community members posting on social media sites.

In a press release Friday, U.S. Sen. Marco Rubio (R-Fla.) took partial credit for the cancellation.

Rubio sent a letter to U.S. Air Force Secretary Frank Kendall regarding the Air Force Library at Ramstein Air Force Base hosting a “Drag Queen Story Time” event for young children of servicemembers. Rubio urged him to cancel the event, discipline the staff involved in planning and hosting the event, and respond to questions on whether other installations both at home and around the world have done similar events. Following receipt of Rubio’s letter, the Air Force canceled the event. 

“The last thing parents serving their nation overseas should be worried about, particularly in a theater with heightened geopolitical tensions, is whether their children are being exposed to sexually charged content simply because they visited their local library,” Rubio wrote.

The 86th Airlift Wing’s publics affairs office at Ramstein and the U.S. Air Force Public Affairs office at the Pentagon have not responded to a request for comment.

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Pulse survivor ‘at a loss’ over Texas elementary school massacre

Brandon Wolf is Equality Florida’s press secretary

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Brandon Wolf was a Grand Marshal at the 2019 Capital Pride Parade on June 8, 2019. (Washington Blade photo by Adam Hall)

A survivor of the Pulse nightclub massacre on Wednesday said he is “at a loss” over the massacre at a Texas elementary school that left 21 people dead.

“Twenty-one people were murdered,” said Equality Florida Press Secretary Brandon Wolf in a statement he sent to the Washington Blade a day after a gunman killed 21 people inside Robb Elementary School in Uvalde, Texas. “Nineteen of them were children — babies. That means 19 families sent their elementary age kids off to school only to get the worst news: That their babies would be leaving class in body bags.”

Wolf was inside the Pulse nightclub in Orlando, Fla., on June 12, 2016, when a gunman opened fire and killed 49 people. His two close friends — Christopher “Drew” Leinonen and his fiancé, Juan Guerrero — were among those killed.

Wolf in his statement noted “right wing politicians have spent the past year insisting that the greatest threats our children face are the potential they’ll learn that this nation was built on the backs of enslaved Black people or that their teacher uses they/them pronouns.”

“They’ve banned books, censored curriculum and bastardized history lessons,” said Wolf. “All the while, they haven’t lifted a finger to protect kids from what is killing them.”

Equality Florida echoed Wolf’s sentiments.

“I am heartbroken for the shattered families,” added Wolf. “Grief-stricken for these stolen lives. And enraged at the power-hungry leaders who have chosen time and again to serve up this country’s most vulnerable as sacrifices in exchange for a boost up the ladder of their own ambitions.”

Axel Rodríguez’s friend, Xavier Serrano Rosado, died inside the Pulse nightclub.

Rodríguez told the Blade that Tuesday was “such a dad day for us here” in Orlando.

“It is like going through the same emotions we had when the attack at Pulse happened, but it’s even worse because we are talking about children,” he said. “When will our government stop thinking about money and stop this madness? Everyone now can obtain a gun anywhere. I just cannot comprehend that at all.”

The Pulse nightclub massacre was the deadliest mass shooting in modern U.S. history until a gunman on Oct. 1, 2017, killed 60 people at a concert in Las Vegas.

A gunman on Feb. 14, 2018, killed 17 people at Marjory Stoneman Douglas High School in Parkland, Fla. Twenty children and six adults died in the massacre at the Sandy Hook Elementary School massacre in Newtown, Conn., on Dec. 14, 2012.

The Robb Elementary School massacre took place less than three years after a gunman killed 22 people at a Walmart in El Paso, Texas.

“There are no words,” tweeted Pride Center San Antonio, which is roughly 90 minutes east of Robb Elementary School, on Wednesday.

“Our hearts are with the Uvalde community,” said Equality Texas on Tuesday. “Every child deserves to free safe at school.”

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Texas

Republican lawmaker claims Texas school gunman was transgender

Massacre victims were inside single classroom

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Families gather at a Uvalde, Texas, civic center to wait for news about their loved ones. (Photo courtesy of Niki Griswold/Twitter)

A spokesperson for the Texas Department of Public Safety confirmed that all of the 19 children and two adults were killed in single classroom at the Robb Elementary School in Uvalde, Texas, Tuesday.

According to officials, 18-year-old Salvador Rolando Ramos, wearing body armor had barricaded himself inside a fourth-grade classroom, where all the fatalities and injuries occurred. Ramos, who attended the nearby high school, was killed on scene by a member of a federal U.S. Border Patrol tactical unit who had responded alongside local law enforcement.

Several other children were injured in the attack, including a 10-year-old who remained in critical condition in a Texas hospital. Law enforcement officials told reporters Ramos shot his grandmother before heading to the school with two military-style rifles he bought on his 18th birthday which was within the last two weeks.

Law enforcement has only released some of the victim’s identities and according to the Austin Statesman newspaper’s political reporter Niki Griswold, parents were gathered late into the night to give DNA samples to find out whether or not their children were among the dead. Griswold also tweeted, “The agonized screams of family members are audible from the parking lot,” as she also noted “A family has erupted into sobs outside the civic center.”

As Texas and the nation reeled in shock over yet another deadly mass shooting, Arizona Republican Congressman Paul Gosar, who espouses radical right view points and former President Trump’s MAGA philosophy, took to Twitter and spread a false and transphobic claim that the suspected shooter was a “transsexual leftist illegal alien.”

Screenshot of now-deleted tweet by Arizona Republican Rep. Paul Gosar

As of Tuesday evening, Gosar had not commented on his tweet, which was deleted about two hours after being published.

Gosar is an anti-immigration, anti-vaxxer, radical right hardliner who routinely cozies up to white nationalists. He was apparently promoting a false claim circulating on right-wing networks. Users shared images of a transgender person unrelated to the attack claiming they were the shooter.

President Biden addresses nation the shooting in Uvalde, Texas, on Tuesday evening.
(Screenshot/White House YouTube)

In Washington last night, President Biden, speaking to the nation said;

“Why are we willing to live with this carnage?” he asked. “Why do we keep letting this happen?  Where in God’s name is our backbone to have the courage to deal with it and stand up to the [gun] lobbies? 

Speaking from personal experience, as a father who has lost two children, Biden added: “To lose a child is like having a piece of your soul ripped away. There’s a hollowness in your chest, and you feel like you’re being sucked into it and never going to be able to get out. It’s suffocating. And it’s never quite the same.”

Global reaction included sympathy from Ukraine’s leadership.

Ukrainian President Volodymyr Zelenskyy expressed condolences to the community of Uvalde where the 21 people — including the 19 students — were murdered in one of the deadliest school shootings in U.S. history.

“Deeply saddened by the news of the murder of innocent children in Texas,” Zelenskyy wrote. “Sincere condolences to the families of the victims, the people of the U.S. and @POTUS over this tragedy. The people of Ukraine share the pain of the relatives and friends of the victims and all Americans.”

NPR reported Wednesday that Zelenskyy also referenced the shooting while speaking by video link at a conference on the sidelines of the World Economic Forum in Davos, Switzerland, in which he drew a direct parallel between the shooting and the war in Ukraine.

“I feel it is my personal tragedy when children are killed in Texas, and now in my country Russian military is killing our children,” he said.

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