National
GOP att’y strongly defends DOMA in N.Y. widow’s lawsuit
Second Circuit hears arguments in Windsor case in NYC
Edith ‘Edie’ Windsor testifies in her Federal Court case against DOMA. (Washington Blade file photo by Michael Key)
NEW YORK CITY — The House Republican attorney defending the Defense of Marriage Act in court took particular issue on Thursday with an octogenarian lesbian’s case against by the law by suggesting the timing and location of her marriage makes challenge invalid.
Paul Clement, a former U.S. solicitor general under the Bush administration, claimed before a federal appeals court that Edith Windsor doesn’t have a case because she married in Canada and her spouse, Thea Spyer, died in 2009 — two years before New York legalized same-sex marriage.
“The critical question isn’t 2012, the critical question is 2009,” Clement said.
Clement added that the issue of whether the marriage is sufficient for a challenge against DOMA should be brought to certification before the New York Court of Appeals, the highest state court in New York.
James Esseks, director of the ACLU’s Lesbian Gay Bisexual and Transgender Project, told the Blade after the oral arguments that Clement was “grasping at straws” when making these claims.
“There’s clear law in New York that New York in 2004 recognized the marriages of same-sex marriage performed in Canada and in other states that allowed same-sex couples to marry,” Esseks said.
Esseks acknowledged that the high court in New York hasn’t affirmed those marriages, but said that three lower courts have recognized those marriages as legitimate as well as the governor and attorney general.
“There’s just no debate about it; It’s quite clear,” Esseks said. “I think we heard from the court today — it’s difficult to make any predictions — but based on what I heard from the court, I don’t think that that’s how the court’s going to decide this question. They’re not going to duck the constitutionality of the Defense of Marriage by saying we’re not sure whether she’s actually married or not.”
Edith Windsor (right) speaks with the ACLU’s James Esseks to reporters following oral arguments in the Second Circuit (Washington Blade photo by Chris Johnson)
A three-judge panel on the appellate court heard from three attorneys during oral arguments in the case, known as Windsor v. United States. The lawsuit was filed by the American Civil Liberties Union on behalf of Windsor, who was forced to pay $363,000 in estate taxes upon the death of her spouse because of Section 3 of DOMA, which prohibits federal recognition of same-sex marriage.
The panel consisted of Chief Judge Dennis Jacobs, who was appointed by President George H.W. Bush; Judge Chester Straub, who was appointed by former President Bill Clinton; and Judge Christopher Droney, who was appointed by President Obama.
It’s the second time a federal appellate court has considered the constitutionality of DOMA. In April, the U.S. First Circuit of Appeals heard oral arguments in the consolidated case of Gill v. Office of Personnel Management and Commonwealth of Massachusetts v. Department of Health & Human Services. On May 31, the appeals issued a decision against DOMA as result of that consideration.
Lawyers presented before the Second Circuit starkly different views on the the Defense of Marriage Act on Thursday before judges reviewing Windsor’s challenge to the anti-gay law, which was passed by Congress in 1996.
In addition to questioning whether Windsor has standing, Clement, who’s DOMA in court on behalf of the House Republican-led Bipartisan Legal Advisory Group, drew upon the cases of Baker v. Nelson, a 1972 Minnesota case seeking the legalization of same-sex marriage that the U.S. Supreme Court declined to hear for lack of substantive federal question.
Clement acknowledged the case is 40 years old and times may have changed since then, but added, “The only thing that hasn’t changed is this court’s obligation to follow Supreme Court precedent.”
Plaintiffs in the case had another view. Roberta Kaplan, partner at Paul, Weiss, Rifkind, Wharton & Garrison LLP, argued against DOMA on behalf of Windsor, saying the law be struck down because states can already decide on their own what decisions to make about who can marry within their borders.
“The problem supposedly solved by uniformity is a problem that our federalist principles have already dealt with,” Kaplan said.
Kaplan added the case against DOMA isn’t about any federal right to marry because even with the law in place, gay couples haven’t been discouraged from marrying across the country, nor have they been discouraged from adopting.
Acting U.S. Assistant Attorney General Stuart Delery, who’s gay, assisted in the litigation against by presenting arguments on behalf of the Obama administration, saying the court should strike down because of the long history of discrimination against LGBT people — including the criminalization of homosexuality and being barred from military service.
“Sexual orientation is a fundamental part of person’s identity that says nothing about a person’s ability to contribute to society,” Delery said.
Questions from judges hit on several topics, although the questioning from didn’t reveal much in terms of what how they’d rule in the case. Many inquiries were posed about the extent to which gays and lesbians enjoy political power within the U.S. government. Opponents of DOMA have argued the anti-gay law is unconstitutional because gays and lesbians lack political power, but BLAG contends the LGBT community has significant influence.
Asked by Jacobs about whether the test of political power is whether gays and lesbians have any power at all or whether power is diminished, Clement replied, “I think it’s the former, and I don’t think it’s not a overwhelmingly difficult test. … It’s a matter of whether you get the attention of lawmakers.”
Clement pointed to a friend-of-the-court brief signed by 145 House Democrats filed in the case on behalf of plaintiffs as evidence that the LGBT community has influence over the political process as he asserted the LGBT community should look to the legislative process to repeal DOMA, saying “This is an issue that could be left to the Democratic process.”
But Kaplan said the 30 marriage amendments that passed in state throughout the country are evidence that gay and lesbians are politically powerless, even though she emphasized these amendments have no bearing on the case at hand against DOMA.
The degree of scrutiny under which laws related to sexual orientation should face before the courts also came up the during the hearing. Judges asked whether they should overturn DOMA on the basis that such laws should be subjected to strict scrutiny, or more intermediate level of heightened scrutiny or be examined under a rational basis review. The level of scrutiny they apply could have implications on court cases related to sexual orientation.
In the event the court decided to rule against DOMA, Clement said the court asked the court not to apply heightened scrutiny, noting it would be the first appellate court to do so because the First Circuit Court of Appeals when struck down DOMA in May under rational basis review.
Kaplan said she was arguing for the higher level of review called strict scrutiny as opposed to the more intermediate heightened scrutiny because “being gay or lesbian is closer to being African-American than being a woman.” Laws related to gender have been subjected to heightened scrutiny, but laws related to race have been subjected to strict scrutiny.
But Delery didn’t articulate the same view, saying he was arguing against DOMA on the basis that it violated heightened scrutiny. While he acknowledged arguments could be made that DOMA fails rational basis, he wouldn’t commit to saying that should be struck down under that standard.
Another question for Delery, which came from Droney, was why the Justice Department had appealed the Windsor to the Second Circuit even though his side won at the district court level when U.S. District Judge Barbara Jones ruled against the law. Delery provided a explanation, prompting Droney to quip that the Justice Department must have a predilection for seeking appellate court rulings in all cases, eliciting laughter from those in attendance at the hearing.
Yet another question was raised by Jacobs on whether withholding benefits from gay couples with the intention of saving money for the federal government is a good enough constitutional reason to keep DOMA in place. Kaplan denied this assertion and said saving money isn’t sufficient rationale unless it’s coupled with another justification.
But Clement pounced on these remarks in the rebuttal allotted to him at the end of the oral arguments, saying preserving federal coffers are absolutely a good reason to preserve DOMA and Congress was “preserving the scope of the benefits programs the way they’ve always been.”
Clement also during his rebuttal asserted that Congress has acted in other areas besides gay and lesbian with regard to marriage. He noted lawmakers have acted to protect against fraud, and, going back to the 19th Century, require states to prohibit polygamy so territories like Utah could enter into the union.
Following the oral arguments, Windsor appeared outside the court building to speak with reporters. Windsor, who recently turned 83, said, “I look forward to the day when the federal government will recognize the marriages of all Americans, and I am hopeful that this day will come during my lifetime.”
Windsor further invoked the memory her deceased spouse — with whom she shared a life for 40 years — saying she believes she’s was present in the court in spirit and “would have been so proud to see how far we’ve come.”
Now that oral arguments are done, judges will confer to determine the steps they’ll take in the case and the process that will lead to them making a decision. There’s no set time for when they have to make a ruling; it could be a matter of days, months or a year.
The ACLU’s Esseks said he wasn’t in a position to predict in what way judges would rule as a result of what was said during the oral arguments.
“Lawyers never want to predict the outcomes,” Esseks said. “There are some arguments that you come out of and you’re like I’m willing to take a guess here. This argument didn’t give me clear sense one way or the other. I wouldn’t be surprised about a win and I wouldn’t be shocked about a loss either.”
Windsor’s attorneys and the Justice Department have asked the Supreme Court to take up the Windsor case for consideration. If the Supreme Court accepts the request, the high court would take up jurisdiction of the lawsuit and the Second Circuit proceedings would be halted.
National
Blade reporters reflect on covering Pulse massacre 10 years ago
Orlando stepped up to comfort and support its LGBTQ community
Friday marks 10 years since a gunman killed 49 people inside the Pulse nightclub in Orlando, Fla.
The massacre, which, at the time was the deadliest mass shooting in modern U.S. history, left the LGBTQ community in this country and around the world reeling. It also prompted renewed calls for gun control.
The OnePulse Foundation, which Pulse owner Barbara Poma founded after the massacre, raised upwards of $20 million for a memorial that never materialized.
The city of Orlando in 2023 purchased the Pulse property for $2 million. Crews earlier this year demolished the former nightclub. The city of Orlando has pledged $12 million for a permanent memorial that is scheduled to open in 2027.
Washington Blade Editor Kevin Naff and International News Editor Michael K. Lavers reported from Orlando in the days after the massacre. Here are their reflections a decade later.
Describe the scene when you arrived in Orlando. Where did you go first?
NAFF: Most mainstream reporters headed for the Pulse nightclub, but it was already roped off with police keeping bystanders at least a full city block away. Instead, I hurried to The Center, Orlando’s LGBTQ community center, downtown. I expected to find it locked down with tight security but instead the doors were flung open and everyone inside was busy at work. No tears, just dedicated staff and volunteers working the phones to secure visas and free plane tickets for relatives of the victims. The director gave me a tour and in the back storage room were pallets and pallets of bottled water stacked to the ceiling. When I asked what all the water was for, he said the city had issued a call for blood donations and the lines to donate were 1,500 deep in 100-degree heat. So The Center drove around to all the sites to deliver water to all those standing in line.
That scene was so inspiring and a testament to the strength and resiliency of the LGBTQ community. We’d seen tragedy before and knew how to respond.
LAVERS: I arrived in Orlando about 14 hours after the massacre took place. The city was shellshocked.
Equality Florida, the state’s LGBTQ advocacy group, and other organizations held a press conference at The Center shortly after my flight from D.C. landed. I drove there from the airport. Terry DeCarlo, who was The Center’s executive director at the time, along with then-Equality Florida Executive Director Nadine Smith and others spoke on behalf of a community that was reeling. The Center at the press conference handed out business cards that read, “You matter.” I had it in my wallet when I drove to a makeshift memorial that was a block from Pulse — the police had cordoned off the area immediately around the nightclub. A local resident who I interviewed told me that she did not know if her friends who were at Pulse when the gunman opened fire survived. Another person with whom I spoke shared a similar story.
A torrential downpour began shortly after I arrived. The storm was an apt metaphor for the raw emotion of that horrific day.
What’s your most prominent memory of covering the Pulse massacre?
NAFF: I was covering a vigil in downtown Orlando when then-Florida Gov. Rick Scott’s motorcade arrived unannounced. To that point, he had not addressed the LGBTQ angle and seemed to be downplaying the fact that this was an attack on our community. I hurried to the front row as he held an impromptu news conference. To my dismay, he took only three short questions from TV reporters then rushed away. I grabbed his communications director and insisted that Scott take a question from the LGBTQ media. She agreed and told me to wait next to the SUV. When Scott approached, I asked him, “What is your message to LGBTQ Floridians?”
To my surprise, he sputtered, stammered, and broke into tears before telling me, “This was an attack, what else can you say? This was an attack against the gays, an attack against Hispanics, an attack against our country, our nation and it’s disgusting. The biggest thing we do now is ask how to make sure this doesn’t happen again.”
It was his first public acknowledgment that the LGBTQ community was the target of the attack.
LAVERS: Two moments stand out for me.
The first moment is when then-President Barack Obama and then-Vice President Joe Biden traveled to Orlando on June 16, four days after the massacre. I was one of the reporters who the White House asked to be part of the local press pool. I was about 50 feet away from Obama and Biden when they placed bouquets with 49 flowers — one for each of the victims — at a makeshift memorial between City Hall and the Dr. Phillips Center for the Performing Arts in downtown Orlando. Obama in remarks he made to the press pool mentioned one of the gay victims who had once said, “We cannot be afraid.” The emotions of the last four days simply became too much, and I broke down. Another reporter who was part of the press pool who was standing next to me realized I had broken down. She put her hand on my back to console me.
The second moment came a few weeks later when I was in Puerto Rico to cover the community’s response to the massacre and to interview victims’ relatives. Orlando has a very large Puerto Rican community, and nearly half of those who died at Pulse were of Puerto Rican descent.
I drove to Caguas, a city that is roughly 20 miles south of San Juan, the island’s capital, on July 7, and interviewed Aida Velázquez in her small apartment. Her son, Frankie “Jimmy” de Jesús, died at Pulse. Aida talked about her son, and she showed me pictures of him. Jimmy also danced Jíbaro, a Puerto Rican folk dance. The interview took place less than a month after the massacre — Jimmy’s funeral took place in Caguas less than two weeks earlier.
I sat in my car after the interview and sobbed uncontrollably for nearly five minutes. Nothing can possibly prepare you for interviewing a mother who had just lost her child in the most horrific way possible.
How did the local community respond and what about their response gave you hope or inspiration?
NAFF: In addition to the staff at The Center working to assist victims and their families, everyday Orlando residents stepped up to help however they could. At the downtown vigils, straight mothers and fathers carried signs offering hugs to anyone who needed them. I encountered a group of young teenage males who approached a group of law enforcement officers and appeared to perform for them. When they finished, I asked what they were doing and they told me that they were straight friends who lived in Orlando and wanted to do something to help so they composed an uplifting rap song and walked around performing it for anyone who needed cheering up.
LAVERS: The way that Orlando rallied around the LGBTQ community was simply inspiring.
Imam Muhammad Musri, president of the Islamic Society of Central Florida, at a memorial service that took place at the Dr. Phillips Performing Arts Center on June 13 said his organization was “united as Americans when it comes to standing with the LGBT community and their rights to live freely and to practice their lives here.” This comment underscored the outpouring of support that Orlando showed its LGBTQ community after Pulse. It was also a call for the better angels among us to reject hate in all of its forms.
What surprised you most about the experience?
NAFF: I was most surprised — and moved — after talking to Rev. Debreita Taylor of Oasis Fellowship Ministries, an LGBTQ-affirming ministry.
“My message is love. Period. Love. Period. There’s nothing in the word of God that faith leaders can go to that teaches hate,” she told me. “Have faith and believe that evil and hate can be eradicated one person at a time. How do you treat someone? How do you embrace someone who treats you wrong? We all bleed, laugh, hope and have great victories and major defeats. And so, you know me, even if you don’t know my name — I’m you.”
LAVERS: It admittedly took me quite a while to fully process what I experienced in Orlando — I was focused on doing my job as a reporter, which was to cover the story, and, most importantly, show the human impact of what had happened. I suppose one surprising aspect of the time I spent in Orlando was that I found myself feeling more defiant against those who seek to destroy our community. They want us to live in fear, and I refuse to give them that satisfaction.
What, if anything, changed as a result of Pulse?
NAFF: In the immediate aftermath of the attack, queer spaces began rethinking their approach to security, which has served us well in the years since. Sadly, just a year later, Pulse was bumped to the No. 2 deadliest mass shooting in U.S. history when a gunman opened fire on the Route 91 Harvest music festival in Las Vegas, killing 60 people. Americans and their politicians never learn from these largely preventable tragedies. The carnage continues.
LAVERS: Gun violence remains a shameful scourge in this country. Our community remains vulnerable to violence and discrimination. President Donald Trump, Vice President JD Vance, and other politicians here in Washington, around the country, and overseas continue to use our community to advance an anti-equality agenda. The carnage continues, as my colleague correctly notes, but our community remains strong and defiant. That gives me hope.
National
Queen Jean is Tony’s first transgender winner
Designer/activist wins for work on ‘Cats: The Jellicle Ball’
It was a historic night at the 79th annual Tony Awards on Sunday as Queen Jean won the award for Best Costume Design of a Musical, making her the first out transgender person to win a Tony.
“This experience has been monumental. We are here for the legacy of queer people, trans people,” she said. “We are taking up space in ways we have to take up space. We have to shift the paradigm. So I just want to say, thank you all so much for this incredible honor. The world right now is deeply, deeply combating so many ailments, and we know as a society that when we come together, we can make real, permanent change.”
She won the award for her work on “Cats: The Jellicle Ball” and was also nominated for best costume design of a play for “Liberation.”
In addition to her stage work, Queen Jean is the founder of Black Trans Liberation, an organization that supports trans and gender-nonconforming people in New York City.
National
Madonna turns Times Square into massive dance floor
Pop icon celebrates Pride month with surprise performance
Pop icon Madonna celebrated Pride month with a pop-up performance in New York City’s Times Square on Thursday to the delight of 50,000 fans.
She performed for about 15 minutes high above street level, including several songs from her new album “Confessions II” due on July 3, along with a trio of songs from the first “Confessions on a Dance Floor.”
In addition to the brand new “Love Sensation,” she performed “I Feel So Free” and “Bring Your Love,” plus “Hung Up,” “Get Together” and “I Love New York.” She wished the crowd a happy Pride season; the event was shared with audiences through Grindr’s first-ever livestream.
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