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Nev. federal court rules against same-sex marriage

Jones determines heterosexuals might not marry if gay couples can

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A district judge in Nevada upheld the state’s same-sex marriage ban

A federal court in Nevada has ruled against allowing same-sex couples to marry on the basis that they can’t procreate and gay people aren’t a politically powerless class.

In a 41-page ruling, U.S. District Judge Robert Jones, an appointee of former President George W. Bush, granted summary judgment in favor of the state of Nevada against claims its prohibition of same-sex marriage violates the Equal Protection Clause of the Fourteenth Amendment.

Among the reasons why Jones, a Mormon who attended Brigham Young University, finds gay couples lack a constitutional right to marry is a rational basis for the government to preclude couples who can’t bear children from marrying:

“Human beings are created through the conjugation of one man and one woman. The percentage of human beings conceived through non-traditional methods is minuscule and adoption, the form of child-rearing in which same-sex couples may typically participate together, is not an alternative means of creating children, but rather a social backstop for when traditional biological families fail. The perpetuation of the human race depends upon traditional procreation between men and women. The institution developed in our society, its predecessor societies, and by nearly all societies on Earth throughout history to solidify, standardize, and legalize the relationship between a man, a woman, and their offspring, is civil marriage between one man and one woman.”

Moreover, Jones determines that straight couples may be disinclined to marry if same-sex couples were allowed to enter into the same institution, which would result in additional societal problems:

“Should that institution be expanded to include same-sex couples with the state’s imprimatur, it is conceivable that a meaningful percentage of heterosexual persons would cease to value the civil institution as highly as they previously had and hence enter into it less frequently, opting for purely private ceremonies, if any, whether religious or secular, but in any case without civil sanction, because they no longer wish to be associated with the civil institution as redefined, leading to an increased percentage of out-of-wedlock children, single-parent families, difficulties in property disputes after the dissolution of what amount to common law marriages in a state where such marriages are not recognized, or other unforeseen consequences.”

The ruling was made in the case of Sevick v. Sandoval, which Lambda Legal filed on behalf of eight plaintiff couples in Nevada. The lead plaintiffs are Beverly Sevcik and Mary Baranovich of Carson City, who’ve been together for nearly 41 years. The plaintiffs contend Nevada’s law is unconstitutional because excluding of same-sex couples from marriage while relegating them to domestic partnerships violates their right to equal treatment under the U.S. Constitution.

Tara Borelli, a Lambda staff attorney, said the district court decision is “not the end of this fight” and vowed to appeal the decision to the U.S. Ninth Circuit Court of Appeals.

“This entire decision rests on the ridiculous premise that a ‘meaningful percentage of heterosexual persons’ will decide not to get married if same-sex couples can,” Borelli said. “Not only is this not true, but it is settled law that the government is not allowed to cater to private biases – which is all that imagining that  ‘some couples won’t join this club if those people are admitted’ amounts to. We are confident this ruling will be overturned on appeal to the Ninth Circuit Court of Appeals.”

The ruling was filed on Monday, but had only come to the attention to the media on Thursday because the court made no previous announcement it had issued a decision.

Notably, Jones determines that Baker v. Nelson, a 1972 case on same-sex marriage that the U.S. Supreme Court refused to hear for want of federal question, should serve as precedent, even though the case is 40 years old, because it relied on a equal protection claim.

At the same time, Jones says Perry v. Brown, a more recent case against California’s Proposition 8 in which same-sex marriage was found unconstitutional, shouldn’t have bearing on Nevada because that case involved taking away marriage rights that already existed in the Golden State as opposed to the question of whether same-sex couples have a constitutional right to marry when a domestic partnership system exists.

Doug NeJaime, who’s gay and a law professor at Loyola Law School, said the treatment of the Perry decision is the “most interesting thing” about the ruling because it shows the ramifications of the limited scope of the Ninth Circuit’s decision against Prop 8.

“The Ninth Circuit frames Perry very narrowly, partly, I think, in an attempt to convince the Supreme Court that they don’t need to get involved, and now we’re seeing the ramifications of that, which is this court within Ninth Circuit interpreting Perry so as not to apply,” he said.

It’s not the first time in recent history that a federal court has upheld a statute against same-sex marriage. In August, U.S. District Judge Alan Kay ruled Hawaii’s ban on same-sex marriage is constitutional using much of the same reasoning found in Jones’ decision.

In addition to ruling that Nevada’s law against same-sex marriage is constitutional on a rational basis standard of review, Jones also disputes the idea that laws related to sexual orientation should be subjected to heightened scrutiny, or a greater assumption they’re unconstitutional. That view has been articulated by President Obama in his decision that the Defense of Marriage Act is unconstitutional and the U.S. Second Circuit Court of Appeals in its ruling against DOMA.

For starters, Jones dismisses the idea that gays and lesbians are politically powerless — a condition necessary for a class to be considered eligible for heightened scrutiny — because of the gains made by the LGBT community in recent years:

Homosexuals serve openly in federal and state political offices. The president of the United States has announced his personal acceptance of the concept of same-sex marriage and the announcement was widely applauded in the national media. Not only has the president expressed his moral support, he has directed the attorney general not to defend against legal challenges to the Defense of Marriage Act (“DOMA”), a federal law denying recognition to same-sex marriages at the federal level. It is exceedingly rare that a president refuses in his official capacity to defend a democratically enacted federal law in court based upon his personal political disagreements. That the homosexual-rights lobby has achieved this indicates that the group has great political power.

Jones also denies that gays and lesbians are politically powerless on the basis of the victories for same-sex marriage that were seen on Election Day:

At the state level, homosexuals recently prevailed during the 2012 general elections on same-sex marriage ballot measures in the States of Maine, Maryland and Washington, and they prevailed against a fourth ballot measure that would have prohibited same sex marriage under the Minnesota Constitution. It simply cannot be seriously maintained, in light of these and other recent democratic victories, that homosexuals do not have the ability to protect themselves from discrimination through democratic processes such that extraordinary protection from majoritarian processes is appropriate.

Not mentioned in the Jones ruling is the passage of a state constitutional amendment in North Carolina just months ago that defined marriage as a union between one man and one woman.

NeJaime said the rejection of heightened scrutiny is also noteworthy, although he’s skeptical about the conclusions the court reaches in this assessment.

“I think some of those conclusions strike me as a little bit shaky — the idea that now that same-sex marriage has a few ballot victories contributes to the idea that gays and lesbians have political power, and the conclusion that the history of discrimination against gays and lesbians does not rise to the level that would lead to the heightened scrutiny findings,” NeJaime said. “I think those kinds of conclusions would be susceptible to being overruled if the Ninth Circuit were to take this case.”

The ruling comes to light on the eve before the U.S. Supreme Court is set to consider whether to take up litigation challenging DOMA and Prop 8.

Nan Hunter, a lesbian law professor at Georgetown University, said the arguments against gays and lesbians being a politically powerless class may be preview of arguments to come before the Supreme Court.

“Perhaps most interesting is the extent to which this judge’s analysis focuses on the political powerlessness question, finding that gay people are too well regarded in majoritarian legislatures to justify judicial invalidation of laws that emerge from those legislatures,” Hunter said. “I think that this aspect of Equal Protection review will be a major focus in the Supreme Court, assuming that it grants review in any of the gay-related cases, and this decision provides a good preview of what the opponents of gay marriage will argue.”

NeJaime speculated the Nevada decision may encourage justices not to take up the Prop 8 case, allowing same-sex marriage to return to California.

“I don’t necessarily think it would have a direct impact, but I think the court would know the Perry has been interpreted very narrowly by another court in the Ninth Circuit, which might bolster support for the idea that they don’t have to take Perry,” NeJaime said.

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6 Comments

6 Comments

  1. Mike Ketterman

    November 30, 2012 at 6:07 am

    This is your good Mormon, his oath to his office means nothing, only the oath to his cult does he follow. That is exactly what we would have gotten from Romney.

  2. Lanorexic

    November 30, 2012 at 8:35 am

    An unrepentant Mormon sitting on the bench in Nevada is as dangerous to a democracy as a Osama Bin Laden and RIchard Nixon combined. With his arguments he essentially contradicts himself. Gays/Lesbians aren’t powerless yet he’s denying their right marry. If that’s not powerless what is? He should be removed from the bench and shipped of to an apartheid sponsoring state in Africa. Mormons aren’t exactly mainstream and he should consider why the United States was originally populated. Persecution of gays/lesbians will end and he’ll be seen as the Church puppet that he is.

  3. David Grossman

    November 30, 2012 at 2:13 pm

    "Moreover, Jones determines that straight couples may be disinclined to marry if same-sex couples were allowed to enter into the same institution, which would result in additional societal problems."

    This is one of the most laughable (and most offensive) things I've ever read. You might as well say that same-race couples will refuse to marry if interracial couples are allowed to. This guy is an anti-gay bigot, and is an embarrassment to our legal system and our country. If possible, the citizens of Nevada should have him removed from the bench.

  4. Dave Edmondson

    November 30, 2012 at 9:01 pm

    In addition to the Princess-Clara-style rant about the supposed effect of same-sex marriage, the opinion reeks of the intellectual dishonesty that so often characterizes homophobes. The judge hand-waves away Constitutional arguments that directly refute his reasoning.

  5. Ian Leonard-Nickel

    December 1, 2012 at 12:53 am

    32-5 in favour of anti-equality advocates doesn't show the fact homosexuals are largely politically powerless? 'Hollingsworth v. Perry' findings of fact stated that no other class of citizenry has been more subjected to ballot measure (and lost nearly every time)! Not even immigrants!

  6. Dave Edmondson

    December 1, 2012 at 2:53 pm

    Let me given an example to support my comment from yesterday. The judge pretty much turns Loving v. Virginia on its head. He says that in Loving, "the elements of the disability were different as between Caucasians and non-Caucasians," whereas in reality, the Loving court explicitly refused to consider that argument and said that the anti-miscegenation statute violated equal protection "even assuming an even-handed state purpose to protect the integrity of all races."

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National

In a historic first, Colorado now has a 1st gentleman as Gov. Polis marries

The governor and his now husband decided to hold their nuptials on the 18th anniversary of their first date

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Governor Jared Polis and 1st Gentleman Marlon Reis exchange vows (Screenshot via CBS News Denver)

DENVER – Colorado’s Democratic Governor Jared Polis married his longtime partner Marlon Reis in a ceremony that marked the first same-sex marriage of a sitting Out governor in the United States.

The couple was married Wednesday in a small traditional Jewish ceremony at the University of Colorado at Boulder, where Reis had matriculated and graduated from. The governor and his now husband decided to hold their nuptials on the 18th anniversary of their first date.

“We met online and went out on a date and we went to the Boulder bookstore and then went to dinner,” Polis told KCFR-FM, Colorado Public Radio (CPR).

In addition to family and close friends in attendance, the couple’s two children participated with their 7-year-old daughter serving as the flower girl and their 9-year-old son as the ring bearer.

The governor joked that their daughter was probably more thrilled than anyone about the wedding. “She was all in on being a flower girl. She’s been prancing around. She got a great dress. She’s terrific,” he said CPR reported.

Their son was also happy, but more ambivalent about it all according to Reis. “Kids are so modern that their responses to things are sometimes funny. Our son honestly asked us, ‘Why do people get married?”

Colorado’s chief executive, sworn in as the 43rd governor of Colorado in January 2019, over the course of nearly 20 years as a political activist and following in public service as an elected official has had several ‘firsts’ to his credit.

In 2008 Polis is one of the few people to be openly Out when first elected to the U.S. House of Representatives as well as being the first gay parent to serve in the Congress. Then on November 6, 2018, he was the first openly gay governor elected in Colorado and in the United States.

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Gov. Jared Polis And First Gentleman Marlon Reis Are Newlyweds

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U.S. Catholic theologians call for LGBTQ nondiscrimination protections

Joint statement says church teachings support equality

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More than 750 of the nation’s leading Catholic theologians, church leaders, scholars, educators, and writers released a joint statement on Sept. 14 expressing strong support for nondiscrimination protections for LGBTQ people.

The six-page theological statement, “A Home for All: A Catholic Call for LGBTQ Non-Discrimination,” was scheduled to be published along with the names of its 759 signatories as a four-page advertisement on Sept. 17 in the National Catholic Reporter, a newspaper widely read by Catholic clergy and laypeople.

The statement was initiated by New Ways Ministry, a Mount Rainier, Md., based Catholic group that advocates for equality for LGBTQ people within the church and society at large.

“As Catholic theologians, scholars, church leaders, writers, and ministers, we affirm that Catholic teaching presents a positive case for ending discrimination against LGBTQ people,” the statement says. “We affirm the Second Vatican Council’s demand that ‘any kind of social or cultural discrimination…must be curbed and eradicated,’” it says.

“We affirm that Catholic teaching should not be used to further oppress LGBTQ people by denying rights rooted in their inherent human dignity and in the church’s call for social equality,” the statement adds.

The statement notes that its signers recognize that a “great debate” is currently taking place within the Catholic Church about whether same-gender relationships and transgender identities should be condoned or supported.

“That is a vital discussion for the future of Catholicism, and one to which we are whole-heartedly committed,” the statement continues. “What we are saying in this statement, however, is relatively independent of that debate, and the endorsers of this statement may hold varied, and even opposing, opinions on sexual and gender matters,” it says.

Francis DeBernardo, New Ways Ministries executive director, said his organization and the signers of the statement feel the issue of nondiscrimination for LGBTQ people can and should be supported by Catholic leaders and the church itself even if some are not yet ready to support same-sex marriage and sexual and gender identity matters.

“LGBTQ non-discrimination is being debated at all levels in our society, and the Catholic perspective on this is often misrepresented, even by some church leaders,” DeBernardo said. “Catholics who have studied and reflected deeply on this topic agree that non-discrimination is the most authentic Catholic position,” he said. 

DeBernardo said those who helped draft the statement decided it would be best to limit it to a theological appeal and argument for LGBTQ equality and non-discrimination and not to call for passage of specific legislation such as the Equality Act, the national LGBTQ civil rights bill pending in the U.S. Congress.

The Equality Act calls for amending existing federal civil rights laws to add nondiscrimination language protecting LGBTQ people in areas such as employment, housing, and public accommodations. The U.S. House approved the legislation, but the Senate has yet to act on it.

“We wanted this to be a theological statement, not a political statement,” DeBernardo said.

He said organizers of the project to prepare the statement plan to send it, among other places, to the Vatican in Rome and to the U.S. Conference of Catholic Bishops, which has expressed opposition to the Equality Act.

Among the key signers of the statement were 242 administrators, faculty, and staff from Sacred Heart University, a Catholic college in Bridgeport, Conn. New Ways Ministries says the statement was circulated by the school’s administration and eight of its top leaders, including President John Petillo, are among the signers.

Some of the prominent writers who signed the statement include Sister Helen Prejean, author of “Dead Man Walking;” Richard Rodriquez, author of “Hunger of Memory;” Gary Wills, author of “Lincoln at Gettysburg;” and Gregory Maguire, author of “Wicked.”

The full text of the statement and its list of signatories can be accessed at the New Ways Ministry website.

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Activists reflect on Black Trans Lives Matter movement resurgence

Blade speaks with Alex Santiago, Jasmyne Cannick

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An I Am Human Foundation billboard along Atlanta's Downtown Connector expressway on Feb. 22, 2021. (Washington Blade photo by Michael K. Lavers)

The world came to a standstill last year as a video surfaced online that showed then-Minneapolis police officer Derek Chauvin murdering George Floyd. The video went viral and sparked numerous protests against racism and police brutality in the U.S. and around the world as many people felt it a potent time to relay their frustrations with and to their governments.

For the LGBTQ community, these protests brought to light the need for human rights for transgender individuals as the murders of people like Tony McDade in Florida and Nina Pop in Missouri reawakened the flame within the Black Trans Lives Matter movement.

A tribute to Tony McDade in downtown Asheville, N.C., in June 2020. McDade was a Black transgender man who was shot and killed by a white police officer in Tallahassee, Fla., on May 27, 2020. (Washington Blade photo by Michael K. Lavers)

The Washington Blade more than a year later spoke with Alex Santiago, executive director of the I Am Human Foundation in Atlanta, and Jasmyne Cannick, a Democratic political strategist and journalist in Los Angeles, to reflect on last year’s Black Trans Lives Matter movement, how far it has come, and what’s in store for the future. 

Uplifting voices often silenced

Participating in the Black Lives Matter protests was an easy decision for Santiago. He is a member of the Legendary House of Garcon, a ballroom house headquartered in D.C. 

Although the house is composed mostly of LGBTQ members, Santiago still felt the need to center trans voices and experiences by visually representing them during Black Lives Matter marches. 

“[I decided that] when I go I’m going to have signs that say ‘Black Trans Lives Matter.’ After talking to a couple of the people in the house, they said it was a great idea. So, they got these t-shirts made that incorporated the trans colors [baby blue, baby pink and white],” says Santiago.

Out of the 250 people in the Legendary House of Garcon, 175 showed up to D.C. from other states to march in solidarity with Black trans people. Santiago says that from what he was told, his was the largest group of activists representing Black trans lives at protests. 

“At first I thought people were going to look at us crazy, like, ‘Why are you separating yourselves or being exclusive?’. But, we got a great response from the general population that was there that day. It was a good day,” says Santiago.

Cannick, who was in Los Angeles during the protests, lent her efforts to platforming pertinent issues. She identifies herself as an ally and a “friend” to the LGBTQ community. 

“I’m active in the LA community and everybody knows me. So, whenever something happens, someone is hurt, someone is killed or someone needs to get the word out about something that’s going on particularly as it relates to the trans community, I’m always asked to get involved, and I do,” says Cannick. 

Over the past year, she reported on multiple LGBTQ issues including the trial of Ed Buck, a Democratic political fundraiser who was convicted in the deaths of two gay Black men who he injected with methamphetamine in exchange for sex.

What happened to the BTLM movement and what needs to change?

The nature of many social movements is that as the intense emotion surrounding them fades, people’s fervor for change wanes as well. This is especially true with allies who are not directly linked to the cause.

“Fatigue and frustration at the relatively slow pace of change to a growing backlash on the right against efforts to call out systemic racism and white privilege — has led to a decline in white support for the Black Lives Matter movement since last spring, when white support for social justice was at its peak,” US News reports about the Black Lives Matter movement.

Cannick believes this is the same for the Black Trans Lives Matter movement. She says Americans allow the media to dictate how it behaves and responds to issues. Thus, when stories “fall out of our media cycles … they fall out of our memories.”

“I think that’s not going to change, and that’s a psychological thing, until we learn how to not let the media necessarily dictate our issues,” says Cannick. 

She suggests that individuals remain plugged into their communities by “doing anything to make sure they keep up with an issue” including following the “right people” on social media and setting up Google alerts for any breaking news. 

Jasmyne Cannick (Photo courtesy of Jasmyne Cannick)

Santiago also echoes Cannick’s sentiments. 

“We wait until something happens before we do something. And, I don’t want to be retroactive; I want to be proactive. I want people to see me when things are going well [and when they’re not going well],” says Santiago. 

Upon returning to his home in Atlanta after the D.C. protests, Santiago contacted a billboard installation company and paid for a billboard labelled, “Black Trans Lives Matter” to be displayed on University Avenue near downtown Atlanta. He says that the billboards got attention and helped to spread much-needed awareness. Following this success, he is now in the process of installing a new billboard labelled, “Black, Trans and Visible. My life Matters.”

“Unless you’re in people’s faces or something drastic happens, people forget. Unless you’re living it, people forget,” says Santiago.

As time progresses, both Santiago and Cannick nest hope for the Black Trans Lives Matter movement. However, this hope can only persist when crucial steps are taken to ensure Black trans individuals around the country are protected, most importantly through legislation.

The New York Times reports there are close to 1,000 elected LGBTQ officials in the U.S., with at least one in each state except Mississippi. 

“We need to have more legislation. We need more voices in power like the council Biden has right now,” says Santiago. 

“You know that [Biden] has a lot of trans people and Black trans people [involved], and a part of that’s a positive step in the right direction, but we need that times 10,” says Santiago.

He believes that political representation should extend to local governance where ordinary Black trans individuals can be trained to assume leadership roles. 

Cannick’s focus is on the Black community. 

“[Trans women] are usually murdered by Black men. If we ever expect that to change, we need to start talking about that,” says Cannick.

She’s open to having conversations that put people, including her as a cis-identifying woman, in uncomfortable and awkward spaces. 

She hosts a podcast titled “Str8 No Chaser” and recently aired an episode, “Why Are Black Men Killing Trans Women,” where she discussed with three Black trans women about the gender and sexuality dynamics within the Black community and their perils. 

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