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DOMA repeal enjoys record support at end of 112th Congress

LGBT group optimistic sponsorship will grow as more marriage-equality backers take seats

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Rep. Maxine Waters is the latest sponsor of DOMA repeal (photo public domain)

Rep. Maxine Waters is the latest sponsor of DOMA repeal (photo public domain)

Legislation that would repeal the Defense of Marriage Act is enjoying record support as the year comes to a close — and an LGBT group backing the bill is optimistic that strength will grow further as additional lawmakers who support marriage equality take their seats at the start of the next Congress.

Upon introduction in the U.S. House early last year, the bill — known as the Respect for Marriage Act — had 109 sponsors, but the total number of has now grown to 159. That’s short of the 218 needed for a majority vote needed for passage, but still a record number.

Marc Solomon, national campaign director for Freedom to Marry, said that number of sponsors was achieved after setting a goal upon the bill’s introduction of finding 50 more sponsors and undertaking a coordinated effort with additional groups to win more support.

“Freedom to Marry set out a goal of adding 50 more sponsors this Congress, and have had dozens and dozens of lobby visits with members and their staff,” Solomon said. “For lobbying members of the Congressional Black Caucus, we partnered up with the National Black Justice Coalition and the ACLU, and for GOP members, we worked with Log Cabin and our GOP lobbyist, Kathryn Lehman.”

The most recent addition to the list of co-sponsors is Rep. Maxine Waters (D-Calif.), who signed as a co-sponsor to the bill on Nov. 16 after Election Day. In a statement to the Washington Blade, Waters said she decided to co-sponsor the bill to provide benefits to married same-sex couples that currently aren’t afforded to them because of DOMA.

“I was very pleased to support the Respect for Marriage Act, critical legislation that would ensure same-sex couples are afforded the same federal benefits as other married couples within states that recognize their unions,” Waters said. “Under current law, same-sex married couples are denied important protections such as Social Security survivor benefits, immigration rights, and family and medical leave.”

Waters’ support also builds on the number of co-sponsors to the bill who are also members of the Congressional Black Caucus. Her support means nine additional caucus members have signed on this year alone, and 34 out of 42 total caucus members are sponsors of the bill.

Of the 159 sponsors to the bill, only one is a Republican. Rep. Ileana Ros-Lehtinen (R-Fla.), the only congressional Republican to support marriage equality, signed on as a co-sponsor last year.

Solomon said the bill’s strength is the largely the result of “tremendous growth” in Democratic support for the bill. Upon introduction, the bill enjoyed support from 55 percent of the House Democratic caucus, but the 112th Congress closes with 80 percent of House Democrats counted as co-sponsors.

“It demonstrates that, for Democrats, supporting the freedom to marry and repeal of DOMA has  become nearly the default position, the only acceptable position to take,” Solomon said.

Solomon said he expects the already high number of sponsors to be topped in the next Congress because of the 49 Democrats who were elected to the U.S. House for the first time on Election Day, 46 were explicit supporters of marriage equality.

In addition to newly elected openly LGB members of Congress — Sean Patrick Maloney, Kyrsten Sinema, Mark Pocan and Mark Takano — this list includes Patrick Murphy of Florida, who unseated Rep. Allen West (R-Fla.) and  Joseph Kennedy III of Massachusetts, who’ll take the seat currently occupied by gay Rep. Barney Frank (D-Mass.)

According to the Human Rights Campaign and Freedom to Marry, the newly elected House Democrats won’t don’t support marriage equality are William Enyart of Illinois, Filemon Vela of Texas and Pete Gallego of Texas.

“All together, this demonstrates tremendous momentum at the federal level for eliminating this discriminatory law that hurts loving and committed couples and their families, and more generally tremendous momentum for the cause across the board,” Solomon said.

The strong end to the Respect for Marriage Act in the 112th Congress comes at same time that the U.S. Supreme Court is set to consider on Friday taking up litigation that would overturn DOMA through the judicial process. The court is widely expected to take up at least one DOMA case and a ruling on the anti-gay law is expected by the end of June.

But passage of the legislation may still be necessary. Rep. Jerrold Nadler (D-N.Y.), chief sponsor of the Respect for Marriage Act, earlier told the Washington Blade passage of his bill is still needed it contains a “certainly clause” that would allow federal benefits to flow to married same-sex couples even if they relocate to states where it’s not recognized. It’s unclear hether a court ruling against DOMA would achieve the same goal.

Waters noted the incoming House Democratic caucus will be “majority-minority” — it’ll have a never-before-seen representation of women, ethnic minorities and LGBT members — and said that diversity makes it incumbent upon the caucus “to recognize and respect the personal dignity of all our colleagues and their families.”

“Today, with the support of President Obama, and a steady shift in public attitudes trending in support of marriage equality, I believe that it is only a matter of time before we see a complete end to DOMA – a discriminatory law that violates fundamental principles of liberty and equal protection guaranteed under the Constitution,” Waters said.

CORRECTION: An initial version of this article, citing a list provided by Freedom to Marry, incorrectly stated the position on same-sex marriage held by William Enyart, Filemon Vela, Don Payne and Bill Foster. Additionally, an initial posting gave an incorrect title for Marc Solomon. The Blade regrets the error. The updated version also removes language speculating the bill would have fewer co-sponsors upon reintroduction.

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New Supreme Court term includes critical LGBTQ case with ‘terrifying’ consequences

Business owner seeks to decline services for same-sex weddings

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The U.S. Supreme Court is to set consider the case of 303 Creative, which seeks to refuse design services for same-sex weddings. (Blade file photo by Michael Key)

The U.S. Supreme Court, after a decision overturning Roe v. Wade that still leaves many reeling, is starting a new term with justices slated to revisit the issue of LGBTQ rights.

In 303 Creative v. Elenis, the court will return to the issue of whether or not providers of custom-made goods can refuse service to LGBTQ customers on First Amendment grounds. In this case, the business owner is Lorie Smith, a website designer in Colorado who wants to opt out of providing her graphic design services for same-sex weddings despite the civil rights law in her state.

Jennifer Pizer, acting chief legal officer of Lambda Legal, said in an interview with the Blade, “it’s not too much to say an immeasurably huge amount is at stake” for LGBTQ people depending on the outcome of the case.

“This contrived idea that making custom goods, or offering a custom service, somehow tacitly conveys an endorsement of the person — if that were to be accepted, that would be a profound change in the law,” Pizer said. “And the stakes are very high because there are no practical, obvious, principled ways to limit that kind of an exception, and if the law isn’t clear in this regard, then the people who are at risk of experiencing discrimination have no security, no effective protection by having a non-discrimination laws, because at any moment, as one makes their way through the commercial marketplace, you don’t know whether a particular business person is going to refuse to serve you.”

The upcoming arguments and decision in the 303 Creative case mark a return to LGBTQ rights for the Supreme Court, which had no lawsuit to directly address the issue in its previous term, although many argued the Dobbs decision put LGBTQ rights in peril and threatened access to abortion for LGBTQ people.

And yet, the 303 Creative case is similar to other cases the Supreme Court has previously heard on the providers of services seeking the right to deny services based on First Amendment grounds, such as Masterpiece Cakeshop and Fulton v. City of Philadelphia. In both of those cases, however, the court issued narrow rulings on the facts of litigation, declining to issue sweeping rulings either upholding non-discrimination principles or First Amendment exemptions.

Pizer, who signed one of the friend-of-the-court briefs in opposition to 303 Creative, said the case is “similar in the goals” of the Masterpiece Cakeshop litigation on the basis they both seek exemptions to the same non-discrimination law that governs their business, the Colorado Anti-Discrimination Act, or CADA, and seek “to further the social and political argument that they should be free to refuse same-sex couples or LGBTQ people in particular.”

“So there’s the legal goal, and it connects to the social and political goals and in that sense, it’s the same as Masterpiece,” Pizer said. “And so there are multiple problems with it again, as a legal matter, but also as a social matter, because as with the religion argument, it flows from the idea that having something to do with us is endorsing us.”

One difference: the Masterpiece Cakeshop litigation stemmed from an act of refusal of service after owner, Jack Phillips, declined to make a custom-made wedding cake for a same-sex couple for their upcoming wedding. No act of discrimination in the past, however, is present in the 303 Creative case. The owner seeks to put on her website a disclaimer she won’t provide services for same-sex weddings, signaling an intent to discriminate against same-sex couples rather than having done so.

As such, expect issues of standing — whether or not either party is personally aggrieved and able bring to a lawsuit — to be hashed out in arguments as well as whether the litigation is ripe for review as justices consider the case. It’s not hard to see U.S. Chief Justice John Roberts, who has sought to lead the court to reach less sweeping decisions (sometimes successfully, and sometimes in the Dobbs case not successfully) to push for a decision along these lines.

Another key difference: The 303 Creative case hinges on the argument of freedom of speech as opposed to the two-fold argument of freedom of speech and freedom of religious exercise in the Masterpiece Cakeshop litigation. Although 303 Creative requested in its petition to the Supreme Court review of both issues of speech and religion, justices elected only to take up the issue of free speech in granting a writ of certiorari (or agreement to take up a case). Justices also declined to accept another question in the petition request of review of the 1990 precedent in Smith v. Employment Division, which concluded states can enforce neutral generally applicable laws on citizens with religious objections without violating the First Amendment.

Representing 303 Creative in the lawsuit is Alliance Defending Freedom, a law firm that has sought to undermine civil rights laws for LGBTQ people with litigation seeking exemptions based on the First Amendment, such as the Masterpiece Cakeshop case.

Kristen Waggoner, president of Alliance Defending Freedom, wrote in a Sept. 12 legal brief signed by her and other attorneys that a decision in favor of 303 Creative boils down to a clear-cut violation of the First Amendment.

“Colorado and the United States still contend that CADA only regulates sales transactions,” the brief says. “But their cases do not apply because they involve non-expressive activities: selling BBQ, firing employees, restricting school attendance, limiting club memberships, and providing room access. Colorado’s own cases agree that the government may not use public-accommodation laws to affect a commercial actor’s speech.”

Pizer, however, pushed back strongly on the idea a decision in favor of 303 Creative would be as focused as Alliance Defending Freedom purports it would be, arguing it could open the door to widespread discrimination against LGBTQ people.

“One way to put it is art tends to be in the eye of the beholder,” Pizer said. “Is something of a craft, or is it art? I feel like I’m channeling Lily Tomlin. Remember ‘soup and art’? We have had an understanding that whether something is beautiful or not is not the determining factor about whether something is protected as artistic expression. There’s a legal test that recognizes if this is speech, whose speech is it, whose message is it? Would anyone who was hearing the speech or seeing the message understand it to be the message of the customer or of the merchants or craftsmen or business person?”

Despite the implications in the case for LGBTQ rights, 303 Creative may have supporters among LGBTQ people who consider themselves proponents of free speech.

One joint friend-of-the-court brief before the Supreme Court, written by Dale Carpenter, a law professor at Southern Methodist University who’s written in favor of LGBTQ rights, and Eugene Volokh, a First Amendment legal scholar at the University of California, Los Angeles, argues the case is an opportunity to affirm the First Amendment applies to goods and services that are uniquely expressive.

“Distinguishing expressive from non-expressive products in some contexts might be hard, but the Tenth Circuit agreed that Smith’s product does not present a hard case,” the brief says. “Yet that court (and Colorado) declined to recognize any exemption for products constituting speech. The Tenth Circuit has effectively recognized a state interest in subjecting the creation of speech itself to antidiscrimination laws.”

Oral arguments in the case aren’t yet set, but may be announced soon. Set to defend the state of Colorado and enforcement of its non-discrimination law in the case is Colorado Solicitor General Eric Reuel Olson. Just this week, the U.S. Supreme Court announced it would grant the request to the U.S. solicitor general to present arguments before the justices on behalf of the Biden administration.

With a 6-3 conservative majority on the court that has recently scrapped the super-precedent guaranteeing the right to abortion, supporters of LGBTQ rights may think the outcome of the case is all but lost, especially amid widespread fears same-sex marriage would be next on the chopping block. After the U.S. Tenth Circuit Court of Appeals ruled against 303 Creative in the lawsuit, the simple action by the Supreme Court to grant review in the lawsuit suggests they are primed to issue a reversal and rule in favor of the company.

Pizer, acknowledging the call to action issued by LGBTQ groups in the aftermath of the Dobbs decision, conceded the current Supreme Court issuing the ruling in this case is “a terrifying prospect,” but cautioned the issue isn’t so much the makeup of the court but whether or not justices will continue down the path of abolishing case law.

“I think the question that we’re facing with respect to all of the cases or at least many of the cases that are in front of the court right now, is whether this court is going to continue on this radical sort of wrecking ball to the edifice of settled law and seemingly a goal of setting up whole new structures of what our basic legal principles are going to be. Are we going to have another term of that?” Pizer said. “And if so, that’s terrifying.”

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DOJ urged to investigate threats against providers of transition-related care

Boston-area hospital forced to evacuate in August

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A coalition of major health organizations are calling on U.S. Attorney General Merrick Garland to investigation threats against providers of gender transition-related medical care for youth, asserting ongoing hostility, including bomb threats and threats of personal violence.

The letter, dated Oct. 3, says medical providers are facing threats for providing “evidence-based health care” to youth, which has meant care for gender transitions, such as hormones, puberty blockers and gender reassignment surgery. The targets of these threats, the letter says, are children’s hospitals, academic health systems and physicians across the country.

“These coordinated attacks threaten federally protected rights to health care for patients and their families,” the letter says. “The attacks are rooted in an intentional campaign of disinformation, where a few high-profile users on social media share false and misleading information targeting individual physicians and hospitals, resulting in a rapid escalation of threats, harassment and disruption of care across multiple jurisdictions.”

The letter has an organizational signature from American Academy of Pediatrics, American Medical Association and Children’s Hospital Association, listing no names as representatives. According to the letter, the group represent 270,000 physicians and medical students and CHA represents more than 220 children’s hospitals across the country.

Major health organizations call on the U.S. Justice Department to take action weeks after Boston Children’s Hospital was forced to evacuate over a bomb threat. Authorities later arrested a woman charged with making the after she reportedly phoned in the threat and called the staff “sickos.”

The threats, the letter says, have had significant impact on providers and services to patients, including a new mother being prevented from being with her preterm infant because of a bomb threat; the need for increased security at children’s hospitals; and staffers facing “increased threats via social media – including to their personal accounts.”

A statement from organizations accompanying the letter urges social media companies — including Twitter, TikTok and Meta, which owns Facebook and Instagram — to “do more to prevent coordinated campaigns of disinformation.”

Jack Resneck, president of the American Medical Association, said in a statement accompanying the letter “individuals in all workplaces have the right to a safe environment, out of harm’s way and free of intimidation or reprisal.”

“As physicians, we condemn groups that promote hate-motivated intolerance and toxic misinformation that can lead to grave real-world violence and extremism and jeopardize patients’ health outcomes,” Resneck said.

The Washington Blade has placed a call in with the Justice Department seeking comment on the letter and the American Medical Association seeking comment on why the letter has organizational signatures as opposed to signatures from any of their representatives.

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Virginia

Youngkin makes additional appointments to Va. LGBTQ+ Advisory Board

Governor plans to revise transgender, nonbinary student guidelines

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Republican Virginia Gov. Glenn Youngkin (Washington Blade photo by Michael Key)

Republican Virginia Gov. Glenn Youngkin on Friday announced the appointment of three people to the Virginia LGBTQ+ Advisory Board.

Youngkin named Kerry Flynn, Jason Geske and Collin J. Hite to the board.

Casey Flores, the president of Log Cabin Republicans of Richmond, in July resigned from the board before his tenure was to begin. The resignation came amid growing criticism over a series of anti-LGBTQ and misogynist comments he made against Vice President Kamala Harris and U.S. Rep. Ted Lieu (D-Calif.), among others.

Youngkin last month announced he plans to revise the Virginia Department of Education’s guidelines for transgender and nonbinary students. Thousands of high school students across Virginia on Sept. 27 walked out of class in protest of the planned revision.

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