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DOJ asks Supreme Court to prioritize Windsor’s DOMA challenge

Brief says Second Circuit ‘most appropriate vehicle’ for justices

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Edith Windsor, gay news, Washington Blade

The Justice Department is asking DOJ to prioritize Edith Windsor‘s challenge against DOMA (Washington Blade file photo by Michael Key)

The Obama administration is asking the U.S. Supreme Court to make the case of an 83-year-old New York lesbian who had to pay $363,000 in estate taxes its highest priority among the pending lawsuits challenging the Defense of Marriage Act.

In an 11-page supplemental brief filed on Friday, U.S. Solicitor General Donald Verrilli writes that the case of Windsor v. United States ā€” which recently led the U.S. Second Circuit Court of Appeals to conclude DOMA is unconstitutional ā€” should take precedence among other pending lawsuits challenging the anti-gay law.

Previously, the Justice Department has said the consolidated case of Gill v. Office of Personnel Management and Commonwealth of Massachusetts v. Department of Health & Human Services ā€” which was filed respectively by Gay & Lesbian Advocates & Defenders and Massachusetts Attorney General Martha Coakley ā€” should be the priority because the case once was the only one in which an appeals court ruled against DOMA.

However, that changed after the ruling by the Second Circuit, which became the first appeals courtĀ to apply heightened scrutiny ā€” or a greater assumption the law is unconstitutional ā€” in its ruling against DOMA. The application of heightened scrutiny is suggested in the Justice Department as the reason why the Windsor case should take precedence, although it’s not explicitly stated.

“AlthoughĀ Department of Health and Human ServicesĀ v.Ā Massachusetts…Ā is also a case inĀ which a court of appeals has rendered a decision, this case now provides the most appropriate vehicle for this Courtā€™s resolution of theĀ constitutionalityĀ of Section 3Ā of DOMA,” the brief states. “In particular, the court of appeals inĀ MassachusettsĀ was constrained by binding circuit precedent as to the applicable level ofĀ scrutiny … whereas theĀ court ofĀ appeals here was not so constrained, and its analysis may be beneficial to this Courtā€™s consideration of that issue.”

The plaintiff in the case, which was filed by groups including the American Civil Liberties Union, is Edith Windsor, who was forced to pay $363,000 in estate taxes in 2009 upon the death of her spouse, Thea Spyer. The two had lived as a couple for 44 years and married in Canada in 2007.

In a statement, Windsor said she’s “pleased” the Justice Department underscoring the importance of her lawsuit against DOMA.

“I am so pleased that the U.S. Solicitor General has recommended that the Supreme Court grant certiorari in my case,” Windsor said. “It has been a long journey up to this point, and I remain hopeful that I will be alive to see the day soon when justice is done for me and for all other married gay and lesbian couples.”

The Justice Department brief explains that the administration previously had concerns about the Windsor case, but each of these concerns was addressed in the Second Circuit ruling.Ā Chief among them was that no appellate court had weighed on the lawsuit, which was obviously addressed when the Second Circuit made its decision.

Additionally, Paul Clement, a private attorney who’s defending the lawsuit on behalf of House Republicans, contended the lawsuit should be brought to certification before the New York’s highest court, the New York Court of Appeals, to allow before the case could move forward because New York had yet to legalize same-sex marriage in 2009. The Justice Department points the Second Circuit dismissed this argument in its decision.

“[A]fter finding New York law sufficiently clear to resolve the issue directly rather than requiring certification to the New York CourtĀ of Appeals, the court ofĀ appeals unanimously held ā€” consistent with the ‘useful and unanimous’ rulings of NewĀ Yorkā€™s intermediate appellate courts ā€” that NewĀ York law recognized plaintiff ā€™s foreign marriage at the relevant time,” the brief states.

Finally, based on previous case law, the Justice Department disputes a notion that the previous brief asking the Supreme Court to take up the lawsuit should be abrogated in the wake of the Second Circuit.

“Although the governmentā€™s petition in this caseĀ was filed as one for certiorari before judgment, the issuance of the court of appealsā€™ intervening decision does not deprive the Court of the authority toĀ grant it,” the brief states. “IfĀ granted, the writ of certiorari would still be directed tothe court of appeals, and thisĀ Court could still exerciseĀ jurisdiction…”

If the Supreme Court grants review in the Windsor case, the Justice Department says justices should hold the petitions in the Massachusetts case “pending final resolution on the merits.” But if the court determines neither case is appropriate for review, the Justice Department says other cases ā€” Golinski v. Office of Personnel Management or Pedersen v. Office of Personnel Management ā€” should be considered for review. Federal district courts have ruled against DOMA in those lawsuits and they’re also pending before the Supreme Court, but an appeals court has yet to weigh in on either lawsuits.

Carisa Cunningham, a GLAD spokesperson, was dismissive of the Justice Department’s call to make the Windsor case a higher priority among the challenges against DOMA as opposed to the initial lawsuit her organization filed against the statute.

“DOJ has pretty consistently pointed the court away from Gill for reasons only they can tell you, so this is not surprising to us,”Ā Cunningham said.

Coakley’s office declined to comment on the brief.

[H/T] Prop 8 Trial Tracker

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National

Antony Blinken, USAID mark World AIDS Day

Officials reiterate Biden-Harris administration’s commitment to end pandemic

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(Bigstock photo)

Secretary of State Antony Blinken and the U.S. Agency for International Development on Sunday marked World AIDS Day.

Blinken in his statement echoed the Biden-Harris administration’s call “for collective action with partners around the world to sustain and accelerate the great progress we have made toward ending HIV/AIDS as a public health threat by 2030.”

“Over the past four years, the State Department has worked tirelessly to save lives through the Presidentā€™s Emergency Plan for AIDS Relief (PEPFAR),” the statement reads. “In partnership with foreign governments, PEPFAR has changed the trajectory of the HIV/AIDS pandemic and now supports more than 20 million people on lifesaving treatment across 55 countries around the world. Independent analyses have documented a direct link of this lifesaving work to economic growth across PEPFAR partner countries. Bipartisan action on a clean, five-year reauthorization of PEPFAR is essential to ending HIV/AIDS as a public health threat and to implementing the programā€™s plans to sustain success over the long term through partner country and community-led and managed programs.”

Blinken further stressed World AIDS Day “is a day to remember the more than 42 million lives lost to HIV/AIDS ā€” a stark reminder of the threat this virus continues to pose if we do not ensure that partner countries have the vision and capacity to sustain a bold response.”

“We must continue to chart a course together that will help communities stay safe and prosperous by ending HIV/AIDS as a public health threat,” he said.

USAID spokesperson Benjamin Suarato in a statement echoed Blinken.

“Each year, we observe World AIDS Day to honor people living with and affected by HIV, remember those we have lost, and recommit to ending HIV as a public health threat by 2030,” said Suarato. “For decades, USAID has worked to support those affected by HIV, as well as the health workers, scientists, researchers, advocates, and communities dedicated to the HIV response.”

Suarato noted this year’s World AIDS Day’s theme, “Collective Action: Sustain and Accelerate HIV Progress,” “underscores the long-term leadership of the United States to galvanize global solidarity and make critical investments to reduce HIV transmission, improve access to treatment, and advance transformative partnerships to sustain a locally-led HIV response.” Suarato also highlighted PEPFAR has saved “more than 25 million lives and helped more than 5.5 million babies to be born HIV-free across 55 countries.”

“We recognize that ending HIV as a public health threat requires enduring cooperation with partner country governments, civil society, faith-based, and other non-governmental organizations, researchers, and scientists,” said Suarato. “It also requires us to continue to elevate the leadership of communities and individuals living with and affected by HIV. On this World AIDS Day, USAID reaffirms our dedication to collective action.”

President Joe Biden and first lady Jill Biden on Sunday will commemorate World AIDS Day at the White House. AIDS Memorial Quilt panels will be shown on the White House’s South Lawn for the first time.

The Washington Blade will have further coverage of the White House commemoration.

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Federal Government

HIV positive patients can now receive organs from HIV positive donors

New HHS rule applies to liver and kidney transplants

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HHS Assistant Health Secretary Adm. Rachel Levine, U.S. Rep. Mark Takano (D-Calif.), and HHS Secretary Xavier Becerra (Washington Blade photo by Christopher Kane)

A new rule announced Tuesday by the U.S. Department of Health and Human Services will allow HIV positive patients to receive organs from HIV positive donors, a move that will expand the pool of available organs and reduce wait times.

ā€œThis rule removes unnecessary barriers to kidney and liver transplants, expanding the organ donor pool and improving outcomes for transplant recipients with HIV,” said HHS Secretary Xavier Becerra in a statement.

The agency noted that the final rule also aims to combat stigma and health inequities associated with HIV.

ā€œResearch shows that kidney and liver transplants between donors and recipients with HIV can be performed safely and effectively,ā€ Assistant Secretary for Health Rachel Levine added. ā€œThis policy change reflects our commitment to following the evidence and updating our approaches as we learn more. By removing research requirements where they are no longer needed, we can help more people with HIV access life-saving transplants.ā€

HHS notes that the rule applies to kidney and liver transplants, which correspond with the areas in which the evidence from biomedical research is the most “robust.”



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Federal Government

LGBTQ federal workers face tough decisions, big worries amid Trump transition

‘I plan to leave after the inauguration’

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(Washington Blade photo by Michael Key)

Donald Trump’s return to the White House promises to shake up Washington in ways not seen even during the norm-shattering Trump 1.0 years: on the table are blueprints for radically reforming the federal civil service into a more partisan institution where loyalty is prized at the expense of expertise and competence; off the table, among other things, are anti-discrimination protections that had long bolstered the rights and welfare of LGBTQ federal government employees.

Washington proudly boasts, per-capita, the highest LGBTQ population of any city in any state in America. Ninety-two percent of the city’s 678,000+ residents voted for Vice President Kamala Harris. So, according to exit polls, did 86 percent of LGBTQ voters.

Many of D.C.’s LGBTQ residents who work for the federal government find themselves, now, at an unenviable crossroads. Some stood to lose their jobs regardless of who won in November because they serve in higher-ranking “political” roles that typically turn over administration-to-administration, but more are “career” employees with experience serving with both parties in charge of the White House.

Many find themselves choosing whether to wade into a hyperlocal job market that is, at the moment, competitive for job seekers ā€” or continue, if they can, working under institutions run by Republicans who have vowed to destroy them (or at least shake them up, whatever that will mean).

The Washington Blade has spoken with LGBTQ employees in the federal government who worry about the welfare of gay, queer, and trans colleagues they plan to leave behind for jobs in the private sector. They share a deep concern, too, for the LGBTQ Americans who, they believe, will suffer harmful consequences of policy and governance under the incoming administration.

A lesbian attorney for the U.S. Department of Justice and a gay senior official for the U.S. Department of Commerce spoke anonymously with the Blade to share experiences and observations at their respective agencies.

Do you expect to be working elsewhere when Trump 2.0 begins in January

[Justice Department]: I plan to leave shortly after the inauguration.

[Commerce Department]: I hope to be working elsewhere by the next term. The job market is incredibly competitive, but thatā€™s because the Biden administration hired the best and brightest public servants that represent every community in America. Itā€™s particularly important that companies and nonprofits seek out the great early/mid-career staff from the administration. Many finished college remotely during the pandemic, to then immediately serve their country. They have exceptional work experience, but can be at a hiring disadvantage behind their classmates who immediately entered the workforce.

Would you be (or might you be) allowed to continue in your role under the next administration if you wished to do so?

[Justice]: Probably not.

Under the next administration, if you were allowed to continue in your role or serve in a different position at your agency or perhaps work elsewhere in the federal government, would you? Why or why not?

[Justice]: Noā€”risk of doxing is too high; did it once before and not interested in doing it again.

[Commerce]: I would not work in the Trump administration, even if allowed. To work for someone who believes in retribution over public service would violate the oath I took to my country and the Constitution he refuses to respect. I look forward to doing what queer people have done for all of American history: shining brightly in the face of hate and being a success in spite of every attempt to shame.

What can you tell me about the post-election turnover at your agency that youā€™ve seen so far or expect to see in the coming months, as compared to that which you might have experienced during previous transitions?

[Justice]: I expect to see many more people leave than in any previous admin change.

[Commerce]: Experienced career staff who survived the first Trump years are burned out and leaving. This is a horrible loss for the American people who are losing the dedicated subject matter experts who do the hard work of making their lives easier, safer, and healthier. So many of them work for the federal government because of how it can be used to help people in big ways. Theyā€™re horrified to think of all the people, especially minorities, women, and queer people, will, instead, be targeted. They donā€™t want to be a part of that. They canā€™t live with that.

Are any of your LGBTQ colleagues staying in their jobs? If so, what can you share about the reasons youā€™ve heard for their decision to stay?

[Justice]: Yes; many will stay because they donā€™t have the luxury of leaving without a job lined up.Ā 

What are some of your biggest concerns specific to how your agency might be run under the Trump 2.0 regime?

[Justice]: They will dismantle the civil rights division at DOJ or completely shift its focus.Ā 

[Commerce]: I’m horrified at how data may be weaponized against vulnerable people.  So much work has been done to help communities by building close-knit relationships with leaders across the countries. Will all these programs focused on supporting the most vulnerable and underserved among us be turned on them to identify easy targets to victimize? 

Broadly speaking, what concerns do you have about the rights, safety, and wellbeing of LGBTQ folks who will remain in the civil service post-January, or those who might join the federal governmentā€™s civilian workforce after Trump takes over?

[Justice]: LGBTQ+ people will be at greater risk of doxing; bathroom flexibilities will disappear; harassment will go unchecked.

[Commerce]: We are barely out of the shadow of the Lavender Scare, where thousands of queer American public servants were harassed, humiliated, and often fired in shame. It starts with removing Pride flags, then the photos of our partners on our desks, and then weā€™re escorted from the building for being security risks. LGBTQ Americans are the soldiers, and scientists, and civil servants and should never, ever have to worry if their mere existence could suddenly cost them their security clearance, their career path, or their safety.

How do you think staff turnover at your agency will impact its work under the next administration? 

[Justice]: Staff turnover will severely undermine DOJā€™s work and protecting the rule of law.Ā 

If, ultimately, a disproportionate number of LGBTQ workers leave for jobs in the private sector, are you concerned about harms that might result from the loss of voices representing the community in the federal government and/or in your agency specifically?

[Justice]: Re: loss of voices, yes. The federal government cannot function as effectively when it doesnā€™t reflect the public it serves.

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