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BREAKING: Boehner appeals DOMA cases to Supreme Court

Appeals court found anti-gay law unconstitutional

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House Speaker John Boehner’s (R-Ohio) attorneys on Friday formally appealed to the U.S. Supreme Court an appeals court decision determining the Defense of Marriage Act was unconstitutional.

Drew Hammill, spokesperson for House Minority Leader Nancy Pelosi (D-Calif.), told the Washington Blade on Friday afternoon Republicans had notified Democratic leadership that House counsel filed an appeal to the Supreme Court.

The court ruling that was appealed was the First Circuit Court of Appeals decision in the cases of Gill v. Office of Personnel Management, which was filed by Gay & Lesbian Advocates & Defenders, and Commonwealth of Massachusetts v. Department of Health & Human Services. On May 31, the appellate court issued a decision that Section 3 of DOMA, which prohibits federal recognition of same-sex marriage, was unconstitutional as a result of both cases.

In a statement, Pelosi slammed Boehner for continuing to assert the constitutionality of DOMA, saying the appeal is a decision that will “waste more taxpayer funds to advance a position rejected by four different courts and to defend discrimination and inequality before the highest court in the land.”

ā€œDemocrats have rejected the Republican assault on equal rights, in the courts and in Congress,” Pelosi said. “We believe there is no federal interest in denying LGBT couples the same rights and responsibilities afforded to all couples married under state law. And we are confident that the Supreme Court, if it considers the case, will declare DOMA unconstitutional and relegate it to the dustbin of history once and for all.”

Boehner’s office didn’t immediately respond to a request to comment on the appeal.

In theĀ filing, Boehner’s attorneys present two questions to the Supreme Court:Ā (1) Whether Section 3 of the Defense of MarriageĀ Act violates the equal protection component of theĀ Due Process Clause of the Fifth Amendment; andĀ (2) Whether the court below erred by inventingĀ and applying to Section 3 of the Defense of MarriageĀ Act a previously unknown standard of equalĀ protection review.

“As the First Circuit recognized, this case calls outĀ for this Courtā€™s review,” the filing states. “The court of appeals hasĀ invalidated a duly-enacted Act of Congress and doneĀ so even though it acknowledged both that DOMAĀ satisfies ordinary rational basis review and does notĀ implicate heightened scrutiny. In the establishedĀ world of equal protection law that result should haveĀ been impossible.”

The filing also cites a separation of powers issue as the result of the Obama administration no longer defending DOMA in court as it continues to enforce it and leaves the House to defend the law.

“Only this Court can settle this matterĀ definitively,” the filing states. “Unless and until this Court decides theĀ question, the executive branch will continue toĀ attack DOMA in the courts, while continuing toĀ enforce it, thus creating more potential litigation forĀ the House to defend. This Court and this CourtĀ alone has the power to settle this question andĀ redirect controversy over this important nationalĀ question to the democratic process.”

Additionally, the filing argues the First Circuit ruling conflicts with Baker v. Nelson, a case related to same-sex marriage that the Supreme Court declined to hear in 1972.

Now that Boehner’s attorneys have filed an appeal, there will be 30 days for plaintiffs to file an opposition to the motion. It would then be left to the court to decide whether to grant cert, or hear the case. There isn’t a timeline for that, but it won’t happen while the court is in summer recess.

LGBT advocates also had harsh words for Boehner over his continued defense of DOMA.

Evan Wolfson, president of Freedom to Marry, called Boehner’s appeal “shameful” and said it’s time for him to “respect basic American values of equal protection under the law.”

ā€œSame-sex couples have waited long enough for the federal government to treat their lawful marriages with the respect and fairness every American wants and deserves, especially in tough economic times,” Wolfson said. “Judges appointed by Presidents Nixon, Reagan, Clinton, ‘Bush 1,’ and ‘Bush 2,’ among others, have all agreed that there should be no ā€˜gay exceptionā€™ to the normal practice of the federal government honoring the marriages celebrated in the states, and providing the 1138-plus federal protections and responsibilities accorded all other married couples.”

In February 2011, the Obama administration announced it would no longer defend DOMA in court. After the decision, Boehner convened the House Bipartisan Legal Advisory Group, which voted 3-2 on a party-line basis to take up defense of DOMA in the administration’s stead.

To assist House general counsel Kerry Kircher in defending DOMA, Boehner hired Paul Clement, a former U.S. solicitor general under President George W. Bush. The cost cap to pay for House expenses in defending the law was set at $1.5 million.

Meanwhile, the Justice Department has filed legal briefs in favor of lawsuits against DOMA and sent Stuart Delery, who’s gayĀ and the Justice Departmentā€™s acting assistant attorney generalĀ forĀ the civil division, to make the case against the law in oral arguments.

Six federal courts have found that DOMA is unconstitutional as a result of cases filed by LGBT advocates. The ruling against DOMA in the First Circuit was the highest court to date to weigh in against the anti-gay law.

A White House spokesperson deferred comment to the Justice Department, which declined to comment.

NOTE: This article has been updated

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Federal judge blocks Trump’s order restricting gender-affirming care for youth

Seven families with transgender, nonbinary children challenged directive

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President Donald Trump (Washington Blade photo by Michael Key)

A federal judge on Thursday issued a temporary restraining order that blocks President Donald Trump’s Jan. 29 executive order restricting access to gender-affirming health care for transgender people under age 19.

The order by Judge Brendan Hurson of the U.S. District Court for the District of Maryland, who was appointed by former President Joe Biden, came in response to a request from the plaintiffs in a lawsuit, filed on Feb. 4, against Trump’s directive.

The plaintiffs are seven families with trans or nonbinary children. They are represented by PFLAG National, GMLA, Lambda Legal, the American Civil Liberties Union, the ACLU of Maryland, and the law firms Hogan Lovells and Jenner & Block.

Hurson’s temporary restraining order will halt enforcement of Trump’s order for 14 days, but it can be extended. This means health care providers and medical institutions can provide gender-affirming care to minor patients without the risk of losing federal funding.

Families in the lawsuit say their appointments were cancelled shortly after the executive order was issued. Hospitals in Colorado, Virginia, and D.C. stopped providing prescriptions for puberty blockers, hormone therapy, and other interventions for trans patients as they evaluated Trump’s directive.

The harms associated with suddenly withholding access to medical care for these patients were a major focus of Thursday’s hearing on the plaintiffs’ request for the temporary restraining order.

The president’s ā€œorder seems to deny that this population even exists, or deserves to exist,ā€ Hurson said, noting the elevated risk of suicide, poverty, addiction, and other hardships among trans people.

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Trumpā€™s trans erasure arrives at National Park Service

Fate of major 2016 LGBTQ Theme Study unclear

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NYC Pride participants in front of the Stonewall Inn in 2019. (File photo by Andrew Nasonov)

President Trumpā€™s efforts at erasing trans identity intensified this week as employees at the National Park Service were instructed to remove the ā€œTā€ and ā€œQā€ from ā€œLGBTQā€ from all internal and external communications.

The change was first noticed on the website of the Stonewall National Monument; trans people of color were integral to the events at Stonewall, which is widely viewed as the kickoff of the modern LGBTQ rights movement. The Stonewall National Monument is the first U.S. national monument dedicated to LGBTQ rights and history.

Reaction to that move was swift. New York City Council member Erik Bottcher wrote, ā€œThe Trump administration has erased transgender people from the Stonewall National Monument website. We will not allow them to erase the very existence of our siblings. We are one community!!ā€

But what most didnā€™t realize is that the removal of the ā€œTā€ and ā€œQā€ (for transgender and queer) extends to all National Park Service and Interior Department communications, raising concerns that the move could jeopardize future LGBTQ monuments and project work.

The Blade reached out to the National Park Service for comment on the trans erasure and received a curt response that the agency is implementing Trumpā€™s executive order ā€œDefending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Governmentā€ as well as agency directives to end all DEI initiatives.

The question being debated internally now, according to a knowledgable source, is what to do with a massive LGBTQ Theme Study, which as of Feb. 14 was still available on the NPS website. In 2014, the Gill Foundation recognized an omission of historic LGBTQ sites in the nationā€™s records, and the organization made a grant to the National Park Service to commission a first-of-its-kind LGBTQ Theme Study, which was published in 2016. It was a landmark project that represented major progress for the LGBTQ community in having our contributions included in the broader American story, something that is becoming increasingly difficult given efforts like ā€œDonā€™t Say Gayā€ laws that ban the teaching of LGBTQ topics in schools.

A source told the Blade that National Park Service communications staff suggested that removing chapters of the 2016 Theme Study that pertain to transgender people might placate anti-trans political appointees. But one employee pushed back on that, suggesting instead that the entire Theme Study be removed. Editing the document to remove one communityā€™s contributions and perspective violates the academic intent of the project, according to the source. A final decision on how to proceed is expected soon. 

Meanwhile, a protest is planned for Friday, Feb. 14 at noon at Christopher Park in New York City (7th Ave. S. and Christopher Street). The protest is being planned by staff at the Stonewall Inn. 

ā€œThe Stonewall Inn and The Stonewall Inn Gives Back Initiative are outraged and appalled by the recent removal of the word ā€˜transgenderā€™ from the Stonewall National Monument page on the National Park Service website,ā€ the groups said in a statement. ā€œLet us be clear: Stonewall is transgender history. Marsha P. Johnson, Sylvia Rivera, and countless other trans and gender-nonconforming individuals fought bravely, and often at great personal risk, to push back against oppressive systems. Their courage, sacrifice, and leadership were central to the resistance we now celebrate as the foundation of the modern LGBTQ+ rights movement.ā€

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Victory Institute executive director speaks about movement response to Trump 2.0

Advocacy groups will lead efforts to push back against anti-LGBTQ administration

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LGBTQ Victory Institute Executive Director Elliot Imse speaks at the International LGBTQ Leaders Conference on Dec. 1, 2022. (Washington Blade photo by Michael Key)

President Donald Trumpā€™s issuance of a series of executive orders targeting transgender rights and LGBTQ-inclusive diversity programs on the first day of his second term was a clear signal of the new administrationā€™s appetite for going after queer and gender diverse people.Ā 

The Jan. 20 directives also brought into focus the extent to which organizations in the LGBTQ movement, particularly those whose work includes impact litigation, will be responsible for protecting the communities they serve from harmful and discriminatory laws and policies over the next four years.

At a critical time that is likely to test the limits of their capacity, these groups are facing challenges that could restrict their access to critical resources thanks in part to the conservative movementā€™s opposition to diversity, equity, and inclusion in both government and the private sector. 

LGBTQ organizations expected federal funding for their work would dry up when the incoming administration took over, given that Trump and his allies made no secret of their plans to aggressively reshape the government including by ridding U.S. agencies of all DEI-related programs, policies, and activities.Ā 

Trump went even further, however, issuing orders to categorically freeze the disbursement of government funds tied to preexisting grants and contracts, while threatening investigations of private companies for ā€œillegalā€ policies and practices related to DEI.

Partly in response to pressure from conservative leaders and activists, over the past couple of years companies have increasingly backed away from DEI efforts including, especially, support for LGBTQ communities and causes. 

Coupled with the loss of federal funding, a decline in corporate giving to LGBTQ organizations could have devastating impacts on the communities they serve, potentially leading to cutbacks in programs and services core to their missions or imperiling their efforts to push back against a hostile regime. 

ā€œContinuing to fund our work is obviously top of mind for everyone right now,ā€ Elliot Imse, executive director of the LGBTQ+ Victory Institute, told the Washington Blade during an interview last week.Ā Ā 

The move by many private companies away from supporting LGBTQ equality has been surprising, Imse said, but ā€œwhat we know is itā€™s a very uncertain environment for corporations right now, and they are feeling out these new realities.ā€ 

On the other hand, the moment also presents an opportunity to remind businesses that commitments to DEI are good for their bottom line while rewarding companies that resist pressure to abandon their LGBTQ customers, employees, and communities, Imse said. 

ā€œThere’s a lot of courageous corporations out there, too, right now, a lot that are continuing to step up. And we need to be grateful; we need to be making purchasing decisions as a community with those corporations in mind. Every corporation that has reaffirmed its commitment to us, we need to go out and support them.ā€ 

ā€œWhile Victory Institute ā€” like all LGBTQ+ organizations ā€” is concerned about the current fundraising environment, we have a programmatic plan in place that directly addresses the realities of what is happening across the country right now,ā€ he said, with programs to support LGBTQ elected officials serving everywhere from small municipal offices to the most powerful positions in government.Ā 

A diverse pipeline of out leaders from diverse backgrounds is the best bulwark ā€œagainst attacks on our equality and democratic backsliding,ā€ Imse said. ā€œWe have a very robust programmatic plan for 2025 ā€” and we need to execute on it at this critical moment.ā€

While the Victory Institute is currently looking for funding to support the organizationā€™s international work to compensate for the loss of federal grants, Imse said the group plans to expand U.S.-based programs, maximizing their reach at a time when this work is especially critical.Ā Ā 

ā€œWeā€™re going to be in more cities than ever before. Weā€™re going to have a larger training presence than ever before, including our LGBTQ+ Public Leadership Summits, which are specifically designed to inspire and recruit LGBTQ+ people to run for office. It is essential folks reject the demoralization of the current moment and that we have more boots on the ground to support those willing to step up and run.ā€ 

He added, ā€œwe are hopeful that we will be able to raise the money we need to carry these programs out, and we believe we can make the case to donors that these programs are an essential path forward.ā€ 

At the same time, Imse acknowledged that LGBTQ groups, including the Victory Institute, are in a difficult position at the moment and ā€œweā€™ll absolutely have to adjust if we see a downturn in fundraising throughout the year.ā€

ā€œit’s going to be an uphill battle, there’s no doubt about that. Like all other organizations, we’re going to watch the numbers and adjust as necessary,ā€ he said, adding, ā€œthe people we have at our organization are what makes our organization strong ā€” their expertise, their relationships, the networks that they’ve built.ā€ 

And while he said ā€œmaking sure that we meet the moment is something that keeps me up at night,ā€ Imse stressed that “figuring out how to balance the reality we are in versus optimism is something that is on everyone’s mind as you talk to LGBTQ+ community members, your staff, your fundersā€ who recognize that ā€œyou must have hope, because if people back away from our equality at this moment, it’ll be much worse than even the situation weā€™re in right now.ā€

There is no shortage of good reasons to hold onto hope, Imse said. ā€œOur movement has always thrived in moments of crisis. While weā€™d prefer no crisis, it refocuses us. It motivates us. And oftentimes leads to breakthroughs that we may not have had otherwise. It destroys complacency. It instills urgency.ā€

After Trump took office and the new Congress was sated with GOP majorities in both chambers, LGBTQ groups whose work includes lobbying or government relations understood their ability to influence policy at the federal level would be limited, at least until Democratic allies have the opportunity to retake control of the House in 2026.Ā 

The Victory Institute was especially well positioned to shift away from Washington, Imse said, because state legislatures, city councils, and school boards have always been the organizationā€™s ā€œbread and butterā€ and the elections for these positions ā€œtruly matterā€ even if they are less ā€œhigh profileā€ than U.S. congressional races.Ā 

ā€œWhen we’re talking about opportunities to make progress in the near future, opportunities to launch a successful offense and defense, it is in these legislative bodies,ā€ he said. ā€œAnd they arguably make more impact on individualsā€™ lives than the federal government does.ā€

Imse added this is especially true with regard to opportunities for legislative action to support LGBTQ Americans and defend their rights, which is unlikely to happen on Capitol Hill for a ā€œlong time.ā€ 

It is especially important now that LGBTQ communities and organizations support each other, he said. 

LGBTQ movement groups, particularly those with international focus, ā€œhave been phenomenal in bringing us together and trying to find out whatā€™s been done, keeping us up to date on potential litigation opportunities, as well as looking for funders that are willing to step up at this absolutely critical moment in our movementā€™s history,ā€ Imse said. 

ā€œWe also need our community to step up in terms of supporting these organizations,ā€ he said, ā€œfinancially through resources and capacity and giving their time, because that’s the only way we’re going to be able to move forward effectively.ā€

It is ā€œimportant that our community members remain active, engaged, and involved, and that our LGBTQ+ media continues to ensure our stories are being told,ā€ Imse said, adding, ā€œEspecially right now, this is an entire movement ecosystem that is working to make sure whatever backsliding is about to occur is not permanent.ā€

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