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.”
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.
White House: Fla. ‘Don’t Say Gay’ law is ‘discrimination, plain and simple’
Statute took effect on Friday
The White House Press Secretary Karine Jean-Pierre released a statement Friday as Florida’s notorious ‘Don’t Say Gay’ law took effect, saying “[…] state officials who claim to champion liberty are limiting the freedom of their fellow Americans simply to be themselves.”
President Joe Biden also tweeted about the law prior to leaving for Camp David to spend the July 4 holiday weekend, calling the law “the latest attempt by Republicans in state houses to target LGBTQI+ students, teachers and families.”
Florida’s “Don’t Say Gay” law takes effect today – the latest attempt by Republicans in state houses to target LGBTQI+ students, teachers, and families.— President Biden (@POTUS) July 1, 2022
Legislators shouldn’t be in the business of censoring educators, and @usedgov will do all in its power to protect students.
In her statement, Jean-Pierre said:
“Today, some of Florida’s most vulnerable students and families are more fearful and less free. As the state’s shameful ‘Don’t Say Gay’ law takes effect, state officials who claim to champion liberty are limiting the freedom of their fellow Americans simply to be themselves.
“Already, there have been reports that ‘Safe Space’ stickers are being taken down from classrooms. Teachers are being instructed not to wear rainbow clothing. LGBTQI+ teachers are being told to take down family photos of their husbands and wives — cherished family photos like the ones on my own desk.
“This is not an issue of ‘parents’ rights.’ This is discrimination, plain and simple. It’s part of a disturbing and dangerous nationwide trend of right-wing politicians cynically targeting LGBTQI+ students, educators, and individuals to score political points.
“It encourages bullying and threatens students’ mental health, physical safety, and well-being. It censors dedicated teachers and educators who want to do the right thing and support their students. And it must stop.
“President Biden has been very clear that every student deserves to feel safe and welcome in the classroom.
“The Department of Education will be monitoring this law, and any student or parent who believes they are experiencing discrimination is encouraged to file a complaint with the department’s Office for Civil Rights.
“Our administration will continue to fight for dignity and opportunity for every student and family — in Florida and around the country.”
Megan Rapinoe among 17 Presidential Medal of Freedom recipients
White House ceremony to take place July 7
The White House on Friday released President Joe Biden’s selection of recipients for bestowing the nation’s highest civilian honor, the Presidential Medal of Freedom. The awards will be presented at the White House on July 7.
Included among the seventeen honorees are Megan Rapinoe, the out Olympic gold medalist and two-time Women’s World Cup champion. She also captains OL Reign in the National Women’s Soccer League. She is a prominent advocate for gender pay equality, racial justice and LGBTQ rights.
Also selected by the president for a posthumous recognition was Richard Trumka, the powerful labor leader and longtime Democratic ally of the LGBTQ community who passed away last August. Trumka had led the AFL-CIO since 2009 and who throughout his career, was an outspoken advocate for LGBTQ Americans, social and economic justice.
The Presidential Medal of Freedom is the Nation’s highest civilian honor, presented to individuals who have made exemplary contributions to the prosperity, values, or security of the U.S., world peace, or other significant societal, public or private endeavors.
The following individuals will be awarded the Presidential Medal of Freedom:
Simone Biles is the most decorated American gymnast in history, with a combined total of 32 Olympic and World Championship medals. Biles is also a prominent advocate for athletes’ mental health and safety, children in the foster care system and victims of sexual assault.
Sister Simone Campbell
Sister Simone Campbell is a member of the Sisters of Social Service and former Executive Director of NETWORK, a Catholic social justice organization. She is also a prominent advocate for economic justice, immigration reform and healthcare policy.
Dr. Julieta García is the former president of The University of Texas at Brownsville, where she was named one of Time magazine’s best college presidents. Dr. García was the first Hispanic woman to serve as a college president and dedicated her career to serving students from the Southwest Border region.
Former Congresswoman Gabby Giffords was the youngest woman ever elected to the Arizona state Senate, serving first in the Arizona legislature and later in Congress. A survivor of gun violence, she co-founded Giffords, a nonprofit organization dedicated to gun violence prevention.
Fred Gray was one of the first black members of the Alabama State legislature since Reconstruction. As an attorney, he represented Rosa Parks, the NAACP and Martin Luther King, who called him “the chief counsel for the protest movement.”
Steve Jobs (posthumous)
Steve Jobs (d. 2011) was the co-founder, chief executive and chair of Apple, Inc., CEO of Pixar and held a leading role at the Walt Disney Company. His vision, imagination and creativity led to inventions that have, and continue to, change the way the world communicates, as well as transforming the computer, music, film and wireless industries.
Father Alexander Karloutsos
Father Alexander Karloutsos is the former Vicar General of the Greek Orthodox Archdiocese of America. After over 50 years as a priest, providing counsel to several U.S. presidents, he was named by His All Holiness Ecumenical Patriarch Bartholomew as a protopresbyter of the Ecumenical Patriarchate.
Khizr Khan is a Gold Star father and founder of the Constitution Literacy and National Unity Center. He is a prominent advocate for the rule of law and religious freedom and served on the United States Commission on International Religious Freedom under President Biden.
Sandra Lindsay is a New York critical care nurse who served on the front lines of the COVID-19 pandemic response. She was the first American to receive a COVID-19 vaccine outside of clinical trials and is a prominent advocate for vaccines and mental health for health care workers.
John McCain (posthumous)
John McCain (d. 2018) was a public servant who was awarded a Purple Heart with one gold star for his service in the U.S. Navy in Vietnam. He also served the people of Arizona for decades in the U.S. House of Representatives and U.S. Senate and was the Republican nominee for president in 2008.
Diane Nash is a founding member of the Student Nonviolent Coordinating Committee who organized some of the most important civil rights campaigns of the 20th century. Nash worked closely with Martin Luther King, who described her as the “driving spirit in the nonviolent assault on segregation at lunch counters.”
Megan Rapinoe is an Olympic gold medalist and two-time Women’s World Cup champion. She also captains OL Reign in the National Women’s Soccer League. She is a prominent advocate for gender pay equality, racial justice and LGBTQI+ rights.
Alan Simpson served as a U.S. senator from Wyoming for 18 years. During his public service, he has been a prominent advocate on issues including campaign finance reform, responsible governance and marriage equality.
Richard Trumka (posthumous)
Richard Trumka (d. 2021) was president of the 12.5-million-member AFL-CIO for more than a decade, president of the United Mine Workers, and secretary-treasurer of the AFL-CIO. Throughout his career, he was an outspoken advocate for social and economic justice.
Brigadier General Wilma Vaught is one of the most decorated women in the history of the U.S. military, repeatedly breaking gender barriers as she rose through the ranks. When she retired in 1985, she was one of only seven women generals in the Armed Forces.
Denzel Washington is an actor, director, and producer who has won two Academy Awards, a Tony Award, two Golden Globes, and the 2016 Cecil B. DeMille Lifetime Achievement Award. He has also served as National Spokesman for the Boys & Girls Clubs of America for over 25 years.
Raúl Yzaguirre is a civil rights advocate who served as CEO and president of National Council of La Raza for thirty years. He also served as U.S. Ambassador to the Dominican Republic under President Barack Obama.
U.S. orders 2.5 million more monkeypox vaccine doses
CDC has reported roughly 350 cases
The U.S. Department of Health and Human Services announced Friday that it has ordered an additional 2.5 million doses of Bavarian Nordic’s JYNNEOS, an FDA-licensed vaccine indicated for prevention of smallpox and monkeypox, for use in responding to current or future monkeypox outbreaks and as part of U.S. smallpox preparedness.
Deliveries from this latest order of the Bavarian Nordic‘s Jynneos vaccine will begin arriving at the Strategic National Stockpile (SNS) later this year and will continue through early 2023 HHS said in a statement.
“We are working around-the-clock with public health officials in states and large metro areas to provide them with vaccines and treatments to respond to the current monkeypox outbreak,” said HHS Secretary Xavier Becerra. “This order of additional JYNNEOS vaccine will help us push out more vaccine quickly, knowing that we have more doses on the way in the coming months — and is only possible because of our longstanding investment in smallpox and monkeypox preparedness.”
The order announced today is in addition to the 500,000 doses of government-owned vaccine the company is producing in 2022 for use in the current response to monkeypox in the U.S and brings the total vaccine doses to be delivered in 2022 and 2023 to more than 4 million.
The company will produce these doses in liquid frozen form using vaccine already manufactured in bulk under an existing 10-year contract with the Biomedical Advanced Research and Development Authority, within the HHS Office of the Assistant Secretary for Preparedness and Response; that contract was part of ongoing national preparedness efforts against smallpox.
“The medical countermeasures available to help respond to the current outbreak are the result of years of investment and planning made possible through the ongoing work between HHS and private industry,” said Gary Disbrow, director of the Biomedical Advanced Research and Development Authority. “We are pleased that we have been able to work with our partners at Bavarian Nordic to accelerate delivery of vaccines that can help keep people safe and stem the spread of the virus.”
BARDA supported the development of JYNNEOS, which is approved by the FDA to prevent smallpox and monkeypox. The U.S. government owns enough smallpox vaccine — JYNNEOS and ACAM2000 — to vaccinate millions of Americans, if needed.
As of June 24, ASPR’s SNS held approximately 65,000 doses of JYNNEOS in immediate inventory with delivery of an additional 300,000 doses in the coming days. On June 28, HHS announced that it would immediately make available 56,000 doses and soon after would make available 240,000 additional doses. The SNS also has more than 100 million doses of ACAM2000 which was developed with SNS support and is approved by FDA for use in preventing smallpox. The Centers for Disease Control and Prevention currently has an expanded access Investigational New Drug protocol which allows use of ACAM2000 for monkeypox.
In addition, the SNS has over 1.7 million treatment courses of the smallpox antiviral drug TPOXX, which was developed with BARDA support and can be used to treat individuals with monkeypox under an appropriate regulatory mechanism. CDC currently has an expanded access Investigational New Drug protocol which allows its use for monkeypox.
As of June 29, the CDC has received reports of approximately 350 cases of monkeypox in the U.S., primarily among men who have sex with men.
To learn more about monkeypox, visit cdc.gov/monkeypox.
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