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Nadler pushes DOMA repeal, despite recent court rulings

Says legislative action needed to fully fix inequities

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Rep. Jerrold Nadler

Rep. Jerrold Nadler is calling for legislative repeal of DOMA in the wake of court rulings against the law. (Blade file photo by Michael Key)

A New York Democrat leading the charge against the Defense of Marriage Act in Congress is stressing the need for legislative action against the anti-gay law despite a string of victories in the courts.

Rep. Jerrold Nadler (D-N.Y.) told the Washington Blade on Monday that legislation to repeal DOMA โ€” the Respect for Marriage Act, which he sponsors in the U.S. House โ€” may offer married same-sex couples greater flexibility with federal benefits as opposed to a U.S. Supreme Court ruling striking down the statute.

“The recent series of affirmative rulings in federal court give us a clear indication of where DOMA is ultimately headed, but we don’t know if a Supreme Court decision would be enough to ensure federal recognition of same-sex marriages,” Nadler said. “We need to pass the Respect for Marriage Act because its certainty provision would enable legally married same-sex couples to receive federal recognition no matter which state they move.”

In addition to repealing DOMA, the Respect for Marriage Act, has a “certainty provision” that would allow married same-sex couples to retain federal benefits of marriage โ€” including certain Social Security benefits, immunity from the estate tax and the ability to jointly file income taxes โ€” even if these couples marry in one state and to move to another that doesn’t recognize same-sex marriage.

Nadler added the need to pass the Respect for Marriage Act “is one of the many reasons” why LGBT rights supporters need to work to re-elect President Obama, who’s endorsed the legislation, and put Democrats back in control of the House. The latter will be a tall order to fill because political observers expect Democrats may make some gains, but will likely fall short of the 25 seats needed for them to regain a majority.

The New York lawmaker spoke to the Washington Blade following a New York City meeting at Gay Men’s Health Crisis with LGBT advocates โ€” including Sen. Kirsten Gillibrand (D-N.Y.) and lesbian New York City Council Speaker Christine Quinn โ€” in which participants discussed ways to advance marriage equality and federal benefits for gay couples.

That meeting took place just days after the U.S. Second Circuit of Appeals became the second federal appellate court to rule against DOMAย in the case of Windsor v. United States and the first appellate court to apply heightened scrutiny in determining the law is unconstitutional. The Windsor lawsuit โ€” along with three others โ€” is pending review before the U.S. Supreme Court. Justices haven’t yet made an announcement on whether they’ll take up the lawsuits, but are expected to take up at least one of the cases to make a nationwide ruling on DOMA.

Jon Davidson, legal director at Lambda Legal, concurred that passage of the Respect for Marriage Act would afford greater certainty for married same-sex couples that wouldn’t necessarily be granted after a court ruling.

“Even if the court upholds one or more of the four holdings that Section 3 of DOMA is unconstitutional in the four DOMA cases the court already has been asked to hear, Rep. Nadler is correct that the bill would help bring certainty to many same-sex couples that it may otherwise take years to sort out,” Davidson said.

Davidson said many federal laws aside from DOMA consider a couple legally married based on the state where the couple wed, but others such as tax law generally look to the state where the couple resides.

“The Respect for Marriage Act would solve this potentially confusing situation by making clear that the federal government would treat same-sex couples who got married in a jurisdiction that allowed it to be considered married for all federal purposes,” Davidson said.

Davidson, whose organization is responsible for one of the DOMA challenges called Golinksi v. Office of Personnel Management, added the legislation is also important in case the Supreme Court reaffirms DOMA because in that event, legislative repeal of the law would be “the only recourse” for opponents of the law.

Fred Sainz, vice president of communications for the Human Rights Campaign, said a Supreme Court ruling overturning DOMA would be “historic and huge,” but Nadler is right that Congress must move forward with the Respect for Marriage Act โ€” largely because the law originated in Congress.

“The act will ensure that the federal government cannot treat same-sex couples as second-class citizens regardless of where they live in the country,” Sainz said. “It was Congress that enacted the discriminatory Defense of Marriage Act, and it is Congress that should take the step to guarantee that gay and lesbian families will no longer be denied recognition by the federal government.

Mary Bonauto, civil rights attorney for Gay & Lesbian Advocates & Defenders, which is responsible for the Gill v. Office of Personnel Management case against DOMA, said via email she appreciates Nadler’s work to repeal DOMA in Congress, but litigation can afford more immediate relief.

“If we win in court, that would return us to the ordinary rules by which the federal government respects state determinations of marital status,” Bonauto said. “I would be happy to have Congress eliminate the problems it created in 1996, but in the meantime, the courts provide the most direct route to relief.”

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Over 100 LGBTQ-themed books in a Florida school district labeled with advisory warning

They warn: โ€œthis book has been identified by some community members as unsuitable for students.โ€

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Advisory Notice (via Twitter)

A southwest Florida district put parental โ€œadvisory noticeโ€ on over 100 books, many of which are race or LGBTQ-themed.ย 

A great number of books in Collier County Public Schools, either digital or physical, now have warning labels writing โ€œAdvisory notice to parents,โ€ according to an NBC report,

The label, tweeted by nonprofit free-speech-promoting group PEN American, states, โ€œThis Advisory Notice shall serve to inform you that this book has been identified by some community members as unsuitable for students. This book will also be identified in the Destiny system with the same notation. The decision as to whether this book is suitable or unsuitable shall be the decision of the parent(s) who has the right to oversee his/her childโ€™s education consistent with state law.โ€ย 

Stephana Ferrell, co-founder of the Florida Freedom to Read Project, which means to fight book banning, told NBC that she had a call from Elizabeth Alves, the associate superintendent of teaching and learning for Collier County Public Schools. In the call, Alves told her that the district added the labels starting in February.ย 

These measures, which Alves described as a โ€œcompromise,โ€ happened after the districtโ€™s legal representative talked with the Florida Citizens Alliance, a conservative group which initiated a โ€œPorn in Schools Reportโ€ project last year. The report included a list of books that โ€œpromote gender self-identification and same-sex marriageโ€ as well as titles that include โ€œindecent and offensive material,โ€ as the group explained. 

Chad Oliver, the Collier County Public Schools spokesperson, on the other hand offered a different story. 

Oliver sent an email to NBC News and said, “Based upon advice from the General Counsel, we placed advisory notices on books about which parents and community members had expressed concern and in accordance with the recently passed Parents’ Bill of Rights Law (HB 241).” 

The law referred by Oliver is also known as the โ€œDonโ€™t Say Gayโ€ law.

According to PEN America, there are 110 labeled books in total, and the list greatly overlaps with the one Florida Citizens Alliance inquired about with Collier County Public Schools.ย 

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Rep. Sean Patrick Maloney introduces bill to make monkeypox testing free

Health insurers would be required to cover costs

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Rep. Sean Patrick Maloney has introduced legislation to make monkeypox testing free to the public. (Blade file photo by Michael Key)

Rep. Sean Patrick Maloney (D-N.Y.), amid the ongoing monkeypox affecting gay and bisexual men, has introduced legislation in the U.S. House seeking to make testing for disease free to the public.

Maloney, one of seven openly gay members of Congress and chair of the Democratic Congressional Campaign Committee, said in a statement the measure, called the No Cost for Monkeypox Testing Act, would testing amid the monkeypox outbreak would be accessible to all.

โ€œIt is critical that we eliminate cost as a barrier to testing for monkeypox to ensure we can identify cases and prevent further spread,โ€ Maloney said. โ€œThis legislation takes the lessons we learned from past public health emergencies and protects those at risk of contracting monkeypox by making tests accessible to everyone.โ€

The legislation would require private health insurers as well as Medicare and Medicaid to cover the costs of monkeypox testing at no expense to the patients, either through deductibles, co-payments, and co-insurance.

The bill introduction comes the week after the Biden administration declared the monkeypox outbreak a public health emergency and the same it has issued new guidance to enhance to the accessing of existing vaccines doses amid criticism federal officials were too slow in distributing shots.

The Washington Blade has placed a request in with the Centers for Disease Control seeking comment on the legislation. Secretary of Health & Human Services Xavier Becerra said Tuesday the federal government has the capacity to conduct an estimated 80,000 tests each week.

Maloney has been representing New York’s 18th congressional district, but after redistricting is now seeking re-election in the 17th district. Amid controversy over a potential showdown between Maloney and Rep. Mondaire Jones (D-N.Y.), who’s Black, another openly gay member of Congress and the current representative of that district, Jones has since opted to run for re-election in the New York’s 10th congressional district. Maloney is now running unopposed in the 17th.

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Biden administration shifts monkeypox vaccine approach amid shortage

Health experts sees new guidance as mixed bag

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The Biden administration has changed its guidance on monkeypox vaccines to enhance availability amid the shortage.

The Biden administration, amid criticism it was slow to act on the monkeypox outbreak and still not meeting the demand for vaccines as the number of cases continues to grow, has announced a shift in guidance for implementation of the shot in an effort to enhance availability.

As the estimated number of monkeypox cases in the United States reaches 8,900, top health officials announced the new move on Tuesday as part of a decision by Secretary of Health & Human Services Xavier Becerra to issue a determination under Section 564 of the Federal Food, Drug and Cosmetic Act to justify emergency use authorization of vaccines. The announcement follows up on the Biden administration’s announcement last week declaring the monkeypox outbreak a public health emergency.

Becerra said in a conference call with reporters the 564 determination and change in approach to vaccines would “boost and strengthen” the Biden administration’s response to monkeypox, which has overwhelmingly affected gay and bisexual men, and “safely accelerates and multiplies our supply of effective vaccines by up to fivefold.”

“Today’s action also reaffirms HHS and this administration’s commitment to using all available resources and capabilities to end the monkeypox outbreak and provide the best possible care to those suffering from the virus,” Becerra added.

The new vaccine approach, which may may be considered minor to non-medical observers, would change injections of the JYNNEOS vaccine from the subcutaneous route (delivery of the vaccine under the fat layer underneath the skin) to the intradermal route (delivery of the vaccine into the layer of skin just underneath the top layer). In theory, that would allow for greater accessibility of monkeypox vaccines as it increases the number of doses from each vial of vaccine.

The change was made amid criticism the Biden administration failed to meet the demand for vaccines during the outbreak and geographic inequity as certain metropolitan areas of the country have more access to vaccines than other places.

As The New York Times reported last week, the Biden administration has faced criticism for not moving quickly enough in acquiring and distributing vaccines, including bulk stocks already owned by the U.S. government manufactured in Denmark by Bavaria Nordic now being given to other clients.

“The government is now distributing about 1.1 million doses, less than a third of the 3.5 million that health officials now estimate are needed to fight the outbreak,” the Times reported. “It does not expect the next delivery, of half a million doses, until October. Most of the other 5.5 million doses the United States has ordered are not scheduled to be delivered until next year, according to the federal health agency.”

Biden officials, nonetheless, touted the numbers of vaccines and tests in response to monkeypox as a positive, acknowledging the 1.1 million vaccines being made available as well as delivery of more than 620,000 of those doses, deployment more than 15,000 courses of the monkeypox treatment and increasing the country’s capacity to administer tests on a weekly basis to around 80,000. Meanwhile, officials also promoted the change in approach in vaccines as means to allow greater accessibility to the shots.

Rochelle Walensky, director of the Centers for Disease Control & Prevention, promoted during the conference call the use of intradermal injections and said they’re “often used for TB skin tests and have been used for other types of vaccines.”

Although Walensky conceded some health care providers “may not be as familiar with intradermal administration” as they are with subcutaneous injection, she said CDC would make additional guidance materials available, including a clinician alert message to the Association of State & Territorial Health Officials, outreach to key clinician partners and an education resource video. The change in guidance, Walensky said, is for vaccine implementation in adults, but children โ€” where single digit monkeypox cases have been reported โ€” would continue to receive vaccination in the traditional subcutaneous approach.

But health experts aren’t responding with overwhelming praise to the decision to change the guidance on vaccine implementation from subcutaneous injections to intradermal injections, expressing concerns the new approach may be insufficient.

Jennifer Kates, director of global health & HIV policy at the Kaiser Family Foundation, was among those saying the change in guidance on vaccine approach was a mixed bag and told the Blade more data is needed to evaluate the effectiveness.

“As we saw with COVID, using these authorities in the context of public health emergencies is an important strategy,” Kates said. “In this case, this step will significantly expand access to vaccines for those most at risk. However, there remain questions about the effectiveness of this approach โ€” real world studies are needed โ€” and challenges to translating vaccines into vaccinations.”

Peter Marks, director of the Center for Biologics Evaluation & Research (CBER) at the Food & Drug Administration, was asked during the conference call with reporters to respond to concerns the change in guidance was insufficient and downplayed the novelty of implementing the vaccines through the intradermal route as “not at all new.”

“In fact, the reason why the Bavaria part of this equation comes from the fact that in Germany, this vaccine was given intradermally originally, in an effort to replicate the original version of the smallpox vaccine,” Marks said. “It’s been given to thousands of people intradermally, so this isn’t the first time it’s been done.”

Walkensky said the intradermal vaccine approach has been implemented amid policies among localities to implement a one-dose approach to the JYNNEOS vaccine through the subcutaneous route. (The D.C. government is one of the jurisdictions that had enacted a one-dose approach amid a vaccine shortage.) There is not data, Walkensky said, to support that approach and “in fact, if anything, there are data saying that that is not protective enough.”

“So by using this alternative strategy of intradermal dosing, not only do we have more doses, but we actually allow people to get two doses in a way that shows immunologic response that’s superimposable from the subcutaneous dosing,” Walkensky said. “So we have more doses, and in fact, we have the ability to doubly vaccinate people so that they get the protection that they need.”

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