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High stakes in marriage cases awaiting Supreme Court

Legal experts weigh in on what to expect next week

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Supreme Court, gay news, Washington Blade
Supreme Court, gay news, Washington Blade

The U.S. Supreme Court could decide as soon as next week whether it’ll hear cases related to DOMA and Proposition 8. (Washington Blade file photo by Michael Key)

All eyes will be on the U.S. Supreme Court next week when it could announce whether it will take up high-profile LGBT-related cases challenging the Defense of Marriage Act and California’s Proposition 8 — and the results of those decisions could have an immediate impact on the marriage rights of same-sex couples.

On Monday, justices are scheduled to hold their first conference to decide cases they will consider when they reconvene in October following their summer recess. Among the cases docketed for this meeting is federal litigation challenging Prop 8, now known as Hollingsworth v. Perry, and one of the cases challenging Section 3 of DOMA, Windsor v. United States.

Justices can decide to take up a case, decline to hear it or put off the decision on considering the lawsuit for a future conference. It takes a vote of four justices to grant a writ of certiorari (to take up a case) but the decision will be put off if any one justice wants more time to decide.

The decision on the Prop 8 case is of particular note because if the court decides against taking up the case and lets stand an appeals court decision against the same-sex marriage ban, gay couples would once again have the right to marry in the nation’s most populous state immediately following a mandate from the U.S. Ninth Circuit of Appeals.

But if the Supreme Court decides to take up the case, the ban would remain in effect until the justices make their own ruling in the lawsuit. It’s possible the court could make a decision saying lower courts erred in overturning Prop 8. For the same-sex marriage ban to come to an end at that point, another lawsuit coming up from the district courts or repeal of Prop 8 at the ballot would be necessary.

Jennifer Pizer, legal director for the Williams Institute, said while she thinks the court is likely to take up cases related to DOMA, it’s a “much harder guess” whether justices will decide to hear the Prop 8 litigation.

“There might well be four justices that disagree with what the Ninth Circuit held, but I think it would be challenging for them probably — as it is for everybody else who’s watching the court — to wonder where a fifth vote might go,” Pizer said. “So I think it’s even odds that the court will not review in Perry.”

Jon Davidson, legal director for Lambda Legal, said in the event that the Supreme Court decides not to hear the Prop 8 case, gay couples should wait for the mandate from the Ninth Circuit before marrying in California.

“My advice to people is plan a nice wedding as opposed to running that day to go get married because there’s always some risk for couples that get married and 10 years split up, one might say, ‘You didn’t really get legally married because the injunction wasn’t in place yet and Prop 8 was still the law and they shouldn’t have married us,'” Davidson said. “Although I think that argument would lose, people don’t need to take on potentially having to fight about that later. If they just wait until the mandate, there won’t be any question.”

There could be an advantage for the LGBT community if the Supreme Court takes up the lawsuit because it could produce a ruling that would affect not only California, but all states with same-sex marriage bans throughout the country. Still, this level of examination bring a new scope of review to the Prop 8 lawsuit because the Ninth Circuit was limited in the way it restricted its reasoning to California.

Pizer said the Supreme Court could rule with a larger scope when considering the constitutionality of Prop 8, but such an evaluation would be unlikely given the limited nature of the Ninth Circuit ruling.

“I think it’s extremely unlikely that there would be a ruling either calling in question all the marriage restrictions of all the states that have them, or on the flip-side, holding that marriage absolutely as a matter of federal law must be restricted just to different-sex couples,” Pizer said. “The things that could be done on the more extreme ends of something favorable or unfavorable to same-sex couples is not so likely.”

The situation is slightly different for the DOMA lawsuits because the Windsor case is the only one that has been fully briefed and docketed for the Sept. 24 conference. The court may not issue a decision on reviewing DOMA until the full range of lawsuits challenging the anti-gay law have been scheduled for consideration.

More DOMA-related cases haven’t yet been set for consideration even though the high court has been asked to consider them. They’re the consolidated case of Gill v. Office of Personnel Management and Commonwealth of Massachusetts v. Department of Health & Human Services, the only lawsuit in which an appeals court has ruled against DOMA, as well as Golinski v. Office of Personnel Management and Pedersen v. Office of Personnel Management.

Davidson said the Supreme Court could also wait to make a decision on whether to hear the Prop 8 lawsuit until making a decision on whether to hear the DOMA cases.

“Different issues in the cases, but they might say, ‘Well, let’s think about all these at the same time to think about whether we should grant review in both kinds of cases or one, and which order,” Davidson said.

As with the Prop 8 case, if the Supreme Court decided against hearing the DOMA cases, it would have significant immediate impact. The federal government would recognize the same-sex marriages of states within the jurisdiction of the First Circuit and other challenges against DOMA would continue up the pipeline.

But the court is widely expected to decide to take up the constitutionality of DOMA because unlike Prop 8, the issue is related to federal law and the U.S. Justice Department has interceded — first in July and again this month — to ask the court to take up each of the four cases pending before the court related to the law. And a ruling from the Supreme Court would almost certainly have a nationwide scope that would enable federal recognition of same-sex marriages throughout the country as opposed to a ruling that would affect only one state.

There’s another benefit to the LGBT community if the Supreme Court were to take up the cases: the application of higher standard of review for cases related to sexual orientation. The Golinski and Pedersen cases are unique among the other DOMA lawsuits because they are the only ones in which lower courts have ruled against DOMA on the basis that they don’t meet the standards of heightened scrutiny, or the assumption they’re unconstitutional. If the Supreme Court were to consider these cases along with other DOMA cases, it could set precedent for applying heightened scrutiny to other laws in the future.

A Supreme Court ruling in favor of the anti-gay side would be significantly burdensome for supporters of same-sex marriage. That would mean opponents of the law would have to fight through the legislative process to lift the ban — a daunting task especially if Republicans were to retain control of the House.

Justices also have an opportunity in taking up the DOMA cases to assert whether the House Republican-led Bipartisan Legal Advisory Group, which took up defense of DOMA after the Obama administration declined to defend the law, has standing to defend it. Some lower courts have hinted BLAG may lack standing to defend DOMA because it’s a committee within the House that hasn’t been approved by a floor vote in either chamber of Congress.

Doug NeJaime, who’s gay and a law professor at Loyola Law School, said the role of BLAG and where the committee derives its authority presents an interesting question to the Supreme Court.

“It would be interesting to see whether the justices actually ask those threshold questions about what the status and standing of BLAG actually is,” NeJaime said. “Because both sides want a substantive determination, I think that’s partly why we haven’t seen it become a huge issue, but it is an interesting question.”

It’s unclear what the schedule will be like for the cases if the Supreme Court decides to take them up. Briefings would ensue in the months that follow and oral arguments may take place in the spring for the court to make a ruling before it adjourns in June. For the DOMA lawsuit, the Supreme Court may take up the cases, but decline to take action until more appellate courts have made decisions on the pending litigation.

Pizer said the Supreme Court may seek to hear arguments on the Prop 8 cases at the same time because they’re both related to marriage.

“The DOMA cases are quite distinct from Perry, but at the same time, they concern marriage for same-sex couples, and certainly some of the arguments made in all these cases resemble, so it wouldn’t be that surprising for the justices to decide to consider a number of them at the same time,” Pizer said.

Legal experts also say the votes of each of the justices in granting a writ of certiorari shouldn’t be an indication of how they’ll ultimately rule in each of the cases.

NeJaime said observers “can’t read too much into” the certiorari votes because justices may decide to take up the cases either because they want to uphold or strike down the laws at hand.

“I think there are clearly going to be justices, for instance, on the DOMA cases that want to take it to overturn, and will overturn DOMA, and, I think, there are justices that want to take it and would uphold DOMA, so I think it’s hard to tell, although I think the DOMA cases are the stronger cases for the LGBT side,” NeJaime said.

Other LGBT cases pending before the Supreme Court are scheduled for September conference, but they aren’t as high-profile as the marriage cases. Justices will consider whether to take up the case of Diaz v. Brewer, in which Gov. Jan Brewer (R) has appealed an injunction placed by a district court prohibiting her from enforcing a law taking away domestic partner benefits from Arizona state employees. Another pending case is National Organization for Marriage v. McKee, in which the anti-gay organization is challenging Maine disclosure laws requiring it to reveal donors regarding its involvement in the 2009 marriage ballot initiative in the state.

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Florida House committee passes “Don’t Say Gay” bill

“LGBTQ people are your neighbors, family members, and friends. We are a normal, healthy part of society and we will not be erased”

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Florida State Capitol building

TALLAHASSEE – A Republican majority Florida House Education & Employment Committee passed HB 1557, the Parental Rights in Education bill, colloquially referred to as the “Don’t Say Gay” bill advancing the measure to the full House.

HB 1557 and its companion Senate bill SB 1834, would ban classroom discussions about sexual orientation and gender identity in schools, erasing LGBTQ identity, history, and culture — as well as LGBTQ students themselves.

The bill also has provisions that appear to undermine LGBTQ support in schools and include vague parental notification requirements which could effectively “out” LGBTQ-identifying students to their parents without their consent.

“The Trevor Project’s research has found that LGBTQ youth who learned about LGBTQ issues or people in classes at school had 23% lower odds of reporting a suicide attempt in the past year. This bill will erase young LGBTQ students across Florida, forcing many back into the closet by policing their identity and silencing important discussions about the issues they face,” said Sam Ames, Director of Advocacy and Government Affairs at The Trevor Project. “LGBTQ students deserve their history and experiences to be reflected in their education, just like their peers.”

In an email to the Blade, Brandon J. Wolf, the Press Secretary for Equality Florida noted; “Governor DeSantis’ march toward his own personal surveillance state continues. Today, the Don’t Say Gay bill, a piece of legislation to erase discussion of LGBTQ people from schools in Florida, passed its first committee and became another component of an agenda designed to police us in our classrooms, doctor’s offices, and workplaces. Make no mistake — LGBTQ people are your neighbors, family members, and friends. We are a normal, healthy part of society and we will not be erased.”

The Trevor Project’s 2021 National Survey on LGBTQ Youth Mental Health found that more than 42% of LGBTQ youth seriously considered attempting suicide in the past year, including more than half of transgender and nonbinary youth.

According to a recent poll conducted by Morning Consult on behalf of The Trevor Project, 85% of transgender and nonbinary youth — and two-thirds of all LGBTQ youth (66%) — say recent debates about state laws restricting the rights of transgender people have negatively impacted their mental health.

When asked about proposed legislation that would require schools to tell a student’s parent or guardian if they request to use a different name/pronoun or if they identify as LGBTQ at school, 56% of transgender and nonbinary youth said it made them feel angry, 47% felt nervous and/or scared, 45% felt stressed, and more than 1 in 3 felt sad.

If you or someone you know needs help or support, The Trevor Project’s trained crisis counselors are available 24/7 at 1-866-488-7386, via chat at TheTrevorProject.org/Get-Help, or by texting START to 678678. 

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California mom claims school manipulated child into changing gender identity

Jessica Konen gave the school permission to use the boy’s name for attendance and tried to be supportive but noted it was difficult for her

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Fox News host Laura Ingraham & Center for American Liberty CEO Harmeet Dhillon with client, Jessica Konen (Screenshot Fox News)

A Northern California mother is claiming teachers in a small school district in the state manipulated her daughter into changing her gender identity and name in a legal claim. 

The claim, filed by the ultra-conservative Center for American Liberty on behalf of the mother, alleged “extreme and outrageous conduct” by the Spreckels Union School District, leading Jessica Konen’s 11-year-old daughter to change her gender identity and drive a wedge between them.

Specifically, the claim, a precursor to a lawsuit, names two teachers – Lori Caldera and Kelly Baraki – at Buena Vista Middle who, in addition to teaching, ran the school’s Equality Club, later known as UBU (You Be You). Buena Vista is a part of the district. 

It comes after Abigail Shrier, the author of a book widely criticized as anti-trans, quoted what the two educators said last year at the California Teachers Association’s annual LGBTQ+ Issues Conference in a piece headlined “How Activist Teachers Recruit Kids.” Caldera and Baraki spoke about the difficulty of running a Gay-Straight Alliance (GSA) in a socially conservative community. 

After the article was published, the teachers were put on administrative leave, and the district hired a law firm to investigate, which is ongoing. The UBU club was suspended. 

Spreckels is a town of about 400 people in the agricultural Salinas Valley, approximately 90 miles south of San Francisco

According to the complaint, Konen’s daughter began attending Equality Club meetings after being invited by a friend when she started sixth grade at Buena Vista. After attending one session, she decided it wasn’t for her until Caldiera convinced her to come back. At the gatherings, Caldera and Baraki held LGBTQ-centered discussions and introduced students to different gender identities and sexualities. 

During her time in the club, Konen’s daughter began exploring her own gender identity and sexuality, choosing to wear more masuline clothes. At some point, she decided to change her name and pronouns, which she has since changed back to her original name and pronouns. 

Konen said she was aware her daughter was bisexual but did not know she began using a male name and gender pronouns until she was called into the school when her daughter was in seventh grade. The meeting caught both Konen and her daughter by surprise – Konen’s daughter had said she wanted to notify her mother, but she did not know the meeting was that day. 

Konen gave the school permission to use the boy’s name for attendance and tried to be supportive but noted it was difficult for her. 

However, when Shrier’s article was published and circulated around the small town, everything changed. At this time, Konen’s daughter was again using a female name and pronouns.

In the leaked recording from the LGBTQ conference, Caldera and Baraki were discussing how they kept meetings private, among other things. 

“When we were doing our virtual learning — we totally stalked what they were doing on Google, when they weren’t doing school work,” Baraki said. “One of them was googling ‘Trans Day of Visibility.’ And we’re like, ‘Check.’ We’re going to invite that kid when we get back on campus.”

However, Caldera told the San Francisco Chronicle that the quotes were either taken out of context or misrepresented. According to Caldera, the stalking comment was a joke. She also defended their work, saying students lead the conversation and they provide honest and fair answers to their questions.
In addition, a spokesperson for the California Teachers Association criticized the group bringing the lawsuit forward, according to the Associated Press: “We are concerned about a political climate right now in which outside political forces fuel chaos and misinformation and seek to divide parents, educators and school communities for their own political gain, which is evident in this complaint. The Center for American Liberty is concerned with pushing its own political agenda through litigation and has filed multiple lawsuits against various school districts and communities.”

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National

GOP majority city council to repeal LGBTQ+ law in Pennsylvania

“I don’t know of any reasons for repealing it other than a political move […] This issue should not be politicized”

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Chambersburg, Pennsylvania (Photo Credit: Borough of Chambersburg)

The council of this central Pennsylvania borough (town) will meet on Monday, January 24 for a likely vote to repeal an ordinance passed this last October that safeguards residents against discrimination based on their sexual orientation, ethnicity or gender identity.

Opposition to the ordinance is led by newly installed borough council president Allen Coffman, a Republican. In an interview with media outlet Penn Live Saturday, Coffman said, “All of us that ran in this election to be on council we think we got a mandate from the people,” he said. “People we talked to when we were campaigning did not like this ordinance at all. I don’t know what the vote will be, but I have a pretty good idea.”

The political makeup of the council changed with the November municipal election, which ushered in a 7-3 Republican majority.

The ordinance, which extends protections against discrimination to gay, transgender or genderqueer people in employment, housing and public accommodations, was passed in October by the then-Democratic majority council, Penn Live reported.

“I don’t know of any reasons for repealing it other than a political move,” said Alice Elia, a Democrat and the former Chambersburg borough council president. “This issue should not be politicized. It’s an issue of justice and having equal protection for everybody in our community. It shouldn’t be a political or a Democratic or Republican issue. This should be something we are all concerned about.”

Coffman told Penn Live that the ordinance serves no purpose and is redundant. He points out that Pennsylvania’s Human Relations Commission handles discrimination complaints from residents across the state.

“There are no penalties, no fines,” he said. “There’s nothing that the ordinance can make someone do. The most they can hope for is that the committee request the two parties to sit down with a counselor or mediator and talk about it. Quite frankly there is nothing that compels them to. There’s no teeth in this.”

Penn Live’s Ivey DeJesus noted if Chambersburg succeeds in repealing the ordinance, it would mark the first time an LGBTQ inclusive law is revoked in Pennsylvania. To date, 70 municipalities have ratified such ordinances.

The Commonwealth of Pennsylvania is one of the 27 states in the nation that have no explicit statewide laws protecting people from discrimination on the basis of sexual orientation or gender identity in employment, housing and public accommodations.

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