National
DOJ asks Supreme Court to hear two additional DOMA cases
Obama administration has now asked for consideration of four such cases
U.S. Supreme Court (Blade file photo by Michael Key)
The U.S. Justice Department on Tuesday filed legal briefs with the Supreme Court asking justices to take up two additional cases challenging the Defense of Marriage Act upon their return from summer recess.
The Obama administration asked the high court to hear Windsor v. United States, which was filed by the American Civil Liberties Union, and Pedersen v. Office of Personnel Management, which was filed by Gay & Lesbian Advocates & Defenders. Both cases are currently pending before the U.S. Second Circuit Court of Appeals.
News of the Justice Department filing the two separate legal briefs was first reported by Reuters. Read the petition in the Pedersen brief here and the petition in the Windsor brief here.
The Justice Department asks the Supreme Court to take up the cases as sort of a backup plan in case justices decline to hear two other DOMA cases they have been asked to review: the consolidated case of Gill v. Office of Personnel Management and Commonwealth of Massachusetts v. Department of Health & Human Services and Golinski v. Office of Personnel Management.
“The Court should hold this petition pending its consideration and disposition of the petitions in Massachusetts and Golinski,” the Pedersen petition states. “Should the Court grant review in either of those cases, it need not grant review in this case. If the Court concludes that neither Massachusetts nor Golinski provides an appropriate vehicle for resolving the question presented, it should grant this petition to ensure a timely and definitive ruling on Section 3’s constitutionality.”
The Justice Department maintains the order in which the Supreme Court should consider the cases is Massachusetts and Golinski, then Pedersen, then the Windsor case. According to the Justice Department, the question of whether the Supreme Court can take up the latter two cases rests on whether plaintiffs “have appellate standing to seek certiorari before judgment.” But the Justice Department says justices must resolve the additional question in the Windsor case of whether New York law recognized the Canadian marriage of the plaintiff, New York lesbian Edith Windsor, at the time of her spouse’s death.
Among the petition’s signers are U.S. Solicitor General Donald Verrilli and Acting Assistant Attorney General Stuart Delery, who’s gay and has been litigating against DOMA on behalf of the Obama administration in court.
Both petitions call on the Supreme Court to answer a question that was previously asked by other parties calling on the Supreme Court to review the anti-gay law: Does Section 3 of DOMA violate the Fifth Amendment guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their state?
The request from the Justice Department follows earlier requests from the Supreme Court to consider these cases from ACLU and GLAD in the wake of district court rulings in favor of plaintiffs against DOMA in the lawsuits. U.S. District Judge Barbara Jones ruled against DOMA in the Windsor case in June. U.S. District Judge Vanessa Bryant ruled against the anti-gay law in the Pedersen case in July. Following those rulings, ACLU and GLAD both asked the Supreme Court to take their respective cases in lieu of waiting for the U.S. Second Circuit Court of Appeals to make a decision.
The Justice Department had previously called on the Supreme Court to take up the consolidated Massachusetts case and the Golinski case. The filings on Tuesday mean the Justice Department now has matched all other requests from groups calling on the Supreme Court to take up different DOMA cases.
Mary Bonauto, the lead counsel for the GLAD in the DOMA cases, said the filings by the Justice Department are “procedural” because petitions requesting that the Supreme Court take up these cases were already awaiting justices.
“So now, DOJ is simply adding it’s voice, saying, ‘Yes, these cases — if some reason you don’t take up some other case — these cases are also appropriate for deciding the issue of DOMA’s constitutionality,” Bonauto said. “It is really is procedural as opposed to substantive, simply trying to essentially provide a menu of cases to the Supreme Court from which to choose.”
In February 2011, the Obama administration announced it would no longer defend DOMA against legal challenges in court and that laws related to sexual orientation should be subjected to heightened scrutiny. Previously, the Justice Department had only Golinski to draw upon because courts in the Massachusetts case ruled DOMA was unconstitutional using a rational basis standard. But after the court ruling in the Pedersen case, the Justice Department had another vehicle to express its viewpoint that heightened scrutiny should apply to laws related to sexual orientation.
“Essentially, they opened up this sample because they want a case that applies heightened scrutiny because that fits with their position and Pedersen is the only other case,” Bonauto said. “Pedersen actually does an extremely thorough job of addressing the factors at enormous length. I mean, it’s over 50 pages in the opinion. In the end, the court doesn’t apply heightened scrutiny because it doesn’t need to, but it sets forth a case for heightened scrutiny.”
The ACLU declined to comment on the Justice Department filings.
Now that the Justice Department has sent these petitions, other parties in the cases have until October 12 to respond. The Supreme Court may make its decision on whether to hear the DOMA cases in the week of September 24, but the cases may be held until a later time.
The House Republican-led Bipartisan Legal Advisory Council, under the leadership of Speaker John Boehner (R-Ohio), has taken up defense of DOMA in the administration’s stead. Legal counsel representing BLAG didn’t immediately respond to a request for comment.
Pennsylvania
Gay journalist murdered inside Philadelphia home
Josh Kruger’s death has left city ‘shocked and saddened’
An openly gay journalist was shot to death in his Point Breeze neighborhood home in the 2300 block of Watkins Street in South Philadelphia early Monday morning.
According to Officer Shawn Ritchie, a spokesperson for the Philadelphia Police Department, 39-year-old Josh Kruger was shot at about 1:30 a.m. and collapsed in the street after seeking help. Kruger was transported to Penn Presbyterian Hospital where he was pronounced dead at 2:13 a.m.
Police said that Kruger was shot seven times throughout the chest and abdomen and that no weapons were recovered nor have any arrests been made. Homicides investigators noted that there was no sign of forced entry and the motive remains unclear.
Philadelphia District Attorney Larry Krasner said in a statement:
“Josh Kruger lifted up the most vulnerable and stigmatized people in our communities — particularly unhoused people living with addiction. As an openly queer writer who wrote about his own journey surviving substance use disorder and homelessness, it was encouraging to see Josh join the Kenney administration as a spokesperson for the Office of Homeless Services.
Josh deserved to write the ending of his personal story. As with all homicides, we will be in close contact with the Philadelphia police as they work to identify the person or persons responsible so that they can be held to account in a court of law. I extend my deepest condolences to Josh’s loved ones and to all those mourning this loss.”
WHYY reported Kruger had written extensively with bylines in multiple publications, including the Philadelphia Inquirer, Philadelphia Magazine, the Philadelphia Citizen, WHYY, and Billy Penn.
CBS News reported that Kruger overcame homelessness and addiction to work for five years in city government, handling Mayor Jim Kenney’s social media and serving as the communications director for the city’s Office of Homeless Services.
He left city government in 2021 to return to journalism, according to his website.
“He was more than just a journalist,” Kendall Stephens, who was a friend and neighbor of Kruger’s, told CBS News. “He was more than just a community member. He was somebody that fought that great fight so many of us are not able to fight that fight because we’re too busy sheltered in our own homes wondering if someone is going to knock down our doors and kill us the same way they killed him. The same way they tried to kill me. And we’re tired of it.”
Kenney said in a statement that he is “shocked and saddened” by Kruger’s death.
“He cared deeply about our city and its residents, which was evident in his public service and writing. Our administration was fortunate to call him a colleague, and our prayers are with everyone who knew him.”
Shocked and saddened by Josh Kruger’s death. He cared deeply about our city and its residents, which was evident in his public service and writing.
— Mayor Jim Kenney (@PhillyMayor) October 2, 2023
Our administration was fortunate to call him a colleague, and our prayers are with everyone who knew him. https://t.co/dnRxQ0Ic3W
The District Attorney’s LGBTQ+ Advisory Committee issued the following statement:
“Many of us knew Josh Kruger as a comrade who never stopped advocating for queer Philadelphians living on the margins of society. His struggles mirrored so many of ours — from community rejection, to homelessness, to addiction, to living with HIV, to poverty — and his recovery, survival, and successes showed what’s possible when politicians and elected leaders reject bigotry and work affirmatively to uplift all people. Even while Josh worked for the mayor, he never stopped speaking out against police violence, politicized attacks on trans and queer people, or the societal discarding of homeless and addicted Philadelphians.
We are devastated that Josh’s life was ended so violently. We urge anyone who has information that could lead to an arrest and prosecution for Josh’s murder to contact the Philadelphia Police or the DA’s Office directly. LGBTQ+ Philadelphians experience violence of all kinds every day; few people used their platforms to remind powerful people in government of that reality as effectively as Josh Kruger did. Josh and the communities he advocated for every day of his life deserve nothing less than justice and accountability for this outrageous crime.”
U.S. Federal Courts
Lesbian mother from El Salvador released from ICE custody
Jessica Barahona-Martinez arrested on June 26, 2017
A federal judge last week ordered the release of a lesbian mother from El Salvador who had been in U.S. Immigration and Customs Enforcement custody since June 2017.
Jessica Patricia Barahona-Martinez and her three children entered the U.S. on May 31, 2016. A court filing notes she fled “persecution she faced in El Salvador as a lesbian, and because the government had falsely identified her as a gang member.”
Barahona-Martinez lived with her sister and other relatives in Woodbridge, Va., until ICE arrested and detained her on June 26, 2017. She was housed at two ICE detention centers in Virginia until her transfer to the South Louisiana ICE Processing Center, a privately-run facility the GEO Group, a Florida-based company, operates in Basile, La., in October 2020.
An immigration judge in November 2019 granted Barahona-Martinez asylum for the second time. The government appealed the decision and the Board of Immigration Appeals, which the Justice Department oversees, ruled in their favor.
The American Civil Liberties Union and the ACLU of Louisiana last month filed a writ for habeas corpus petition in the U.S. District Court for the Western District of Louisiana’s Lafayette Division that asked for Barahona-Martinez’s release. U.S. District Judge Terry A. Doughty on Sept. 27 ruled in her favor.
“Petitioner (Barahona-Martinez) ultimately argues that her prolonged detention violates due process; she moves that this court issues a temporary restraining order, requests release, a bond hearing, an expedited hearing and costs and attorney fees,” wrote Doughty.
“This court finds that petitioner has plausibly alleged her prolonged detention violates due process,” added Doughty.
An ACLU spokesperson on Monday told the Blade that ICE has released Barahona-Martinez and she is once again in Virginia with her children and sister.
State Department
State Department hosts intersex activists from around the world
Group met with policy makers, health officials, NGOs
The State Department last week hosted five intersex activists from around the world.
Kimberly Zieselman, a prominent intersex activist who advises Jessica Stern, the special U.S. envoy for the promotion of LGBTQ and intersex rights abroad, brought the activists to D.C.
• Morgan Carpenter, co-founder and executive director of Intersex Human Rights Australia
• Natasha Jiménez, an intersex activist from Costa Rica who is the general coordinator of Mulabi, the Latin American Space for Sexualities and Rights
• Julius Kaggwa, founder of the Support Initiative for People with Atypical Sex Development Uganda
• Magda Rakita, co-founder and executive director of Fujdacja Interakcja in Poland and co-founder of Interconnected UK
• Esan Regmi, co-founder and executive director of the Campaign for Change in Nepal.
Special U.S. Envoy for Global Youth Issues Abby Finkenauer and Assistant Health Secretary Rachel Levine are among the officials with whom the activists met.
Zieselman told the Washington Blade on Sept. 21 the activists offered State Department officials an “intersex 101” overview during a virtual briefing.
More than 60 Save the Children staffers from around the world participated in another virtual briefing. Zieselman noted the activists also met with Stern, U.N. and Organization of American States officials, funders and NGO representatives while in D.C.
“The people we met were genuinely interested,” Rakita told the Blade.
Stern in an exclusive statement to the Blade said “the visiting intersex activists clearly had an impact here at State, sharing their expertise and lived experience highlighting the urgency to end human rights abuses, including those involving harmful medical practices against intersex persons globally.” Andrew Gleason, senior director for gender equality and social justice at Save the Children US, in a LinkedIn post he wrote after attending his organization’s meeting with the activists echoed Stern.
“There are many learnings to recount from today’s discussion, but one thing is clear, this is unequivocally a child rights issue, and one that demands attention and action at the intersection of LGBTQI+ rights, reproductive rights and justice, disability justice and more,” wrote Gleason. “Gratitude to the panelists for sharing such poignant testimonies and providing insights into what organizations like ours can do to contribute to the broader intersex movement; and thank you to Kimberly for your leadership and bringing this group together.”
The activists’ trip to D.C. coincided with efforts to end so-called sex “normalization” surgeries on intersex children.
Greek lawmakers in July passed a law that bans such procedures on children under 15 unless they offer their consent or a court allows them to happen. Doctors who violate the statute face fines and prison.
Germany Iceland, Malta, Portugal and Spain have also enacted laws that seek to protect intersex youth.
A law that grants equal rights and legal recognition to intersex people in Kenya took effect in July 2022. Lawmakers in the Australian Capital Territory earlier this year passed the Variation in Sex Characteristics (Restricted Medical Treatment) Bill 2023.
Intersex Human Rights Australia notes the law implements “mechanisms to regulate non-urgent medical care to encourage child participation in medical decisions, establish groundbreaking oversight mechanisms and provide transparency on medical practices and decision making.” It further points out the statute “will criminalize some deferrable procedures that permanently alter the sex characteristics of children” and provides “funding for necessary psychosocial supports for families and children.”
“It’s amazing,” Carpenter told the Blade when discussing the law and resistance to it. “It’s not perfect. There was some big gaps, but physicians are resisting every step of the way.”
The State Department in April 2022 began to issue passports with an “X” gender marker.
Dana Zzyym, an intersex U.S. Navy veteran who identifies as non-binary, in 2015 filed a federal lawsuit against the State Department after it denied their application for a passport with an “X” gender marker. Zzyym in October 2021 received the first gender-neutral American passport.
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