National
Prop 8 attorneys confident court will strike down marriage ban
Olson hopes U.S. gov’t will take part in lawsuit
Ted Olson said U.S. government intervention in the Prop 8 case would have “great effect’ on its outcome (Washington Blade file photo by Michael Key)
The organizers behind the lawsuit challenging California’s Proposition 8 are excited and optimistic about the prospects for a Supreme Court ruling against the anti-gay measure as one attorney on the team said he hopes the Obama administration will assist in the effort.
Ted Olson, a co-counsel in the Prop 8 lawsuit, made the remarks during a conference call on Friday in response to a question from Politico’s Josh Gerstein. Olson said a friend-of-the-court brief from the Justice Department would have “great effect” in the effort to overturn Prop 8.
“I would hate to predict what the United States government is doing, but given the stand the president of the United States and the attorney general of the United States made with respect to marriage equality, we would certainly hope that they would participate,” Olson said. “And I’m quite confident that if they did participate, they would support our position in this case because the denial of equal rights is subject to close scrutiny by the courts and cannot withstand that scrutiny.”
Olson said if the Obama administration were to file a brief before the Supreme Court in the Prop 8 case, it would do so at about the same time it would file a brief in the DOMA case. The Justice Department has already filed briefs against DOMA in lower courts.
The Obama administration has thus far stayed out of the Prop 8 case. Asked in September by the Washington Blade whether the U.S. government would weigh in, White House Press Secretary Jay Carney had no comment and Nanda Chitre, a spokesperson for the Justice Department, said, “We are not a party to this litigation and would decline further comment.”
That might change now that the Supreme Court has taken up the case. Like other interested parties, the Justice Department will have an opportunity to file a friend-of-the-court brief in the upcoming days as the court accepts other briefs in the lawsuit.
The organization behind the lawsuit, the American Foundation for Equal Rights, held the conference call in the wake of the Supreme Court’s decision to take up the Prop 8 case as well as one of the cases against the Defense of Marriage Act known as Windsor v. United States.
Olson was confident about a positive outcome for same-sex couples, saying the denial of their marriage rights will receive significant attention simply by being before the Supreme Court.
“We have an exhaustive record on which to build this case, and it will be an education for the American people,” Olson said. “We are very confident the outcome of this case will be to support the rights of our gay and lesbian brothers and sisters.”
David Boies, co-counsel in the lawsuit, said the decision of the Supreme Court to take up the case means only a short time remains before a final resolution is reached in the Prop 8 case.
“We are now literally within months of getting a final resolution of this case that began three-and-a-half years ago,” Boies said. “I think we are encouraged and excited about the prospect that we will finally get a decision on the merits with respect to marriage equality. This is a momentous case; I think the attention that it has already received by the Supreme Court indicates their recognition of the importance of this issue.”
Human Rights Campaign President Chad Griffin, who co-founded AFER, also expressed excitement about the prospects of a victory at the Supreme Court on the conference call.
“Today is nothing short of a milestone moment, quite frankly, for equality,” Griffin said. “We are gratified that the court has taken this challenge to Prop 8. We should also mention the challenge to the ridiculously named Defense of Marriage Act. Millions of loving couples — married and unmarried — have been waiting for their day in court, and now they’re finally going to have it.”
Also taking part in the conference call were the two plaintiff couples in the case: Kris Perry and Sandy Stier, who tried to obtain a marriage license in Alameda County, as well as Jeff Zarrillo and Paul Katami, who tried to obtain a marriage license in Los Angeles.
Had the Supreme Court decided not to take up Prop 8, a U.S. Ninth Circuit Court of Appeals ruling against the measure would have been allowed to stand and same-sex marriage would have returned to California.
But plaintiffs in the case didn’t express disappointment. Asked whether she’s unhappy the Supreme Court took up the case, Perry replied, “You may find this a little surprising: the answer is ‘no’.”
“We’ve always been very patient and understanding of this process,” Perry said. “We always wanted the biggest, boldest outcome possible, and that can only happen if the Supreme Court listens to the case.”
Stier echoed those remarks, saying she feels “zero disappointment,” but instead hope that areas affected by discrimination other than in California will obtain relief as a result of the case.
Also during the conference call, Olson and Boies answered questions about the the Supreme Court’s request for additional briefings on whether opponents of Prop 8 have standing to defend the law in court. California state officials aren’t defending the law in court, and anti-gay groups have taken up defense of the anti-gay measure instead.
Olson said that question may present an opportunity for the Supreme Court to strike down Prop 8 on the grounds that anti-gay groups can’t defend the law in court as opposed to deciding the case on the merits. Such a ruling would abrogate a ruling against Prop 8 from the Ninth Circuit that allowed anti-gay groups and let stand a district court ruling against the measure.
“If the court were to decide this on standing as far as the Perry case is concerned, that would reinstate the 134-page opinion from District Judge Vaughn Walker, which decided all of the issues comprehensively in favor of the constitutional rights of marriage equality,” Olson said.
Asked by Buzzfeed’s Chris Geidner whether attorneys would actively argue that proponents of Prop 8 don’t have standing in court, Boies said that would indeed be the case.
“We will be making the standing argument,” Boies said. “We think the standing argument is strongly supported by existing Supreme Court precedent.”
The Prop 8 attorneys had previously filed a brief with the Supreme Court asking justices not to hear the case, but Olson said during the conference call his team has maintained at the same time that the lawsuit would be “the perfect vehicle” for deciding the right to marriage equality throughout the country.
“Gay and lesbians and all citizens have the right to have this issue … before the court with a fully developed record, with evidence on history, the importance of marriage, the damage done by discrimination and the fact that all Americans will benefit by the fact that people will be treated equally throughout this country to marry the person that they love,” Olson said.
In response to a question from The Huffington Post’s Sam Stein on whether opponents of Prop 8 would be better off if a ruling against DOMA came first, Olson denied sequencing would be a problem, saying, “We have never agreed with those concerns.”
“In short, the record is so complete that we have always felt that if the issue of marriage equality was going to be before the Supreme Court, the Proposition 8 Perry case should be a part of it because it has vastly more developed evidentiary record and specific thoughtful findings by a district judge who listened to all the evidence, and there was no evidence of any persuasive effect on the other side,” Olson said.
The opportunity for the court to hear the Prop 8 lawsuit means the Supreme Court may make a national ruling on same-sex marriage that affects not just California, but every state in the country with a ban on same-sex marriage.
Asked by The Advocate’s Julie Bolcer about scenarios in which a Supreme Court ruling might have an impact outside California, Boies said may justices may issue a ruling with larger reach depending on the way they examine the case.
Boies said if the Supreme Court addresses in its ruling the “fundamental merit” issue of whether discrimination against gays and lesbians is unconstitutional under the U.S. Constitution, that ruling would mean “there would be a fundamental right to marry in every state in the country because obviously the federal Constitution applies to every state in the country.”
Still, Boies said the ruling would be limited to California if justices decide the case on same narrow ground as the Ninth Circuit or simply determine that proponents of Prop 8 don’t have standing to defend the law in court. Even so, Boies said such rulings would establish precedent that would have an impact on other marriage cases throughout the country.
NOTE: An additional quote from Olson was added to this piece following its initial publication that better reflected his confidence the Supreme Court would strike down Prop 8 on its merits.
U.S. Supreme Court
Supreme Court begins fall term with major gender affirming care case on the docket
Justices rule against Biden admin over emergency abortion question
The U.S. Supreme Court’s fall term began on Monday with major cases on the docket including U.S. v Skrmetti, which could decide the fate of 24 state laws banning the use of puberty blockers and hormone treatments for transgender minors.
First, however, the justices dealt another blow to the Biden-Harris administration and reproductive rights advocates by leaving in place a lower court order that blocked efforts by the federal government to allow hospitals to terminate pregnancies in medical emergencies.
The U.S. Department of Health and Human Services had issued a guidance instructing healthcare providers to offer abortions in such circumstances, per the federal Emergency Medical Treatment and Labor Act, which kicked off litigation over whether the law overrides state abortion restrictions.
The U.S. Court of appeals for the 5th Circuit had upheld a decision blocking the federal government from enforcing the law via the HHS guidance, and the U.S. Department of Justice subsequently asked the Supreme Court to intervene.
The justices also declined to hear a free speech case in which parents challenged a DOJ memo instructing officials to look into threats against public school officials, which sparked false claims that parents were being labeled “domestic terrorists” for raising objections at school board meetings over, especially, COVID policies and curricula and educational materials addressing matters of race, sexuality, and gender.
Looking to the cases ahead, U.S. v. Skrmetti is “obviously the blockbuster case of the term,” a Supreme Court practitioner and lecturer at the Harvard law school litigation clinic told NPR.
The attorney, Deepak Gupta, said the litigation “presents fundamental questions about the scope of state power to regulate medical care for minors, and the rights of parents to make medical decisions for your children.”
The ACLU, which represents parties in the case, argues that Tennessee’s gender affirming care ban violates the Equal Protection Clause of the 14th Amendment by allowing puberty blockers and hormone treatments for cisgender patients younger than 18 while prohibiting these interventions for their transgender counterparts.
The organization notes that “leading medical experts and organizations — such as the American Medical Association, the American Psychiatric Association, and the American Academy of Pediatrics — oppose these restrictions, which have already forced thousands of families across the country to travel to maintain access to medical care or watch their child suffer without it.”
When passing their bans on gender affirming care, conservative states have cited the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization (2022), which overturned constitutional protections for abortion that were in place since Roe v. Wade was decided in 1973.
The ACLU notes “U.S. v. Skrmetti will be a major test of how far the court is willing to stretch Dobbs to allow states to ban other health care” including other types of reproductive care like IVF and birth control.
Also on the docket in the months ahead are cases that will decide core questions about the government’s ability to regulate “ghost guns,” firearms that are made with build-it-yourself kits available online, and the constitutionality of a Texas law requiring age verification to access pornography.
The latter case drew opposition from liberal and conservative groups that argue it will have a chilling effect on adults who, as NPR wrote, “would realistically fear extortion, identity theft and even tracking of their habits by the government and others.”
National
Lesbian software developer seeks to preserve lost LGBTQ history
Up until the early 2010s, if you searched “Babe Ruth” in the Baseball Hall of Fame, nothing would pop up. To find information on the greatest baseball player of all time, you would have to search “Ruth, George Herman.”
That is the way online archival systems were set up and there was a clear problem with it. Kristen Gwinn-Becker was uniquely able to solve it. “I’m a super tech geek, history geek,” she says, “I love any opportunity to create this aha moment with people through history.”
Gwinn-Becker is the founder and CEO of HistoryIT, a company that helps organizations create digital archives that are genuinely accessible. “I believe history is incredibly important, but I also think it’s in danger,” she says. “Less than 2% of our historical materials are digital and even less of that is truly accessible.”
Gwinn-Becker’s love for history is personal. As a lesbian, growing up, she sought out evidence of herself across time. “I was interested in stories, interested in people whose lives mirrored mine to help me understand who I was.”
“[My identity] influences my love of history and my strong belief in history is important,” she says.
Despite always loving history, Gwinn-Becker found herself living and working in San Francisco during the early dot com boom and bust in the ‘90s. “It was an exciting time,” she recounts, “if you were intellectually curious, you could just jump right in.”
Being there was almost happenstance, Gwinn-Becker explained: “I was 20 years old and wanted to live in San Francisco.” Quickly, she fell in love with “all of the incredible new tools.” She was working with non-profits that encouraged her to take classes and apply the new skills. “I was really into software, web, and database development.”
But history eventually pulled her back. “Tech was fun, but I didn’t want to be a developer,” she says. Something was missing. When the opportunity to get a Ph.D. in history from George Washington University presented itself, “I got to work on the Eleanor Roosevelt papers, who I was and remain quite passionate about.”
Gwinn-Becker’s research on Eleanor Roosevelt planted the seeds of digital preservation. “Eleanor Roosevelt doesn’t have a single archive. FDR has lots but the first ladies don’t,” she says. Gwinn-Becker wondered what else was missing from the archive — and what would be missing from the archive if we didn’t start preserving it now.
Those questions eventually led Gwinn-Becker to found HistoryIT in 2011. Since then, the company has created digital archives for organizations ranging from museums and universities to sororities, fraternities, and community organizations.
This process is not easy. “Digital preservation is more than scanning,” says Gwinn-Becker. “Most commercial scanners’ intent is to create a digital copy, not an exact replica.”
To digitally preserve something, Gwinn-Becker’s team must take a photo with overhead cameras. “There is an international standard,” she says, “you create an archival TIFF.”
“It’s the biggest possible file we can create now. That’s how you future-proof.”
Despite the common belief that the internet is forever, JPEGs saved to social media or websites are a poor archive. “It’s more expensive for us to do projects in the 2000 to 2016 period than to do 19th-century projects,” explains Gwinn-Becker, since finding adequate files for preservation can be tricky. “The images themselves are deteriorated because they’re compressed so much,” she says.
Her clients are finding that having a strong digital archive is useful outside of the noble goal of protecting history. “It’s a unique trove of content,” says Gwinn-Becker. One client saw a 790% increase in donations after incorporating the digital archive into fundraising efforts. “It’s important to have content quickly and easily,” says Gwinn-Becker, whose team also works with clients on digital strategy for their archive.
One of Gwinn-Becker’s favorite parts of her job is finding what she calls “hidden histories.”
“We [LGBTQ people] are represented everywhere. We’re represented in sports, in religious history, in every kind of movement, not only our movement. I’m passionate about bringing those stories out.”
Sometimes queer stories are found in unexpected places, says Gwinn-Becker. “We work with sororities and fraternities. There are a hell of a lot of our stories there.”
Part of digital preservation is also making sure that history being created in the moment is not lost to future generations. HistoryIT works with NFL teams, for example. One of their clients is the Panthers, who hired Justine Lindsay, the first transgender cheerleader in the NFL. Gwinn-Becker was excited to be able to preserve information about Lindsay in the digital record. “It’s making history in the process of preserving it,” says Gwinn-Becker.
Preserving queer history, either through “hidden histories” or LGBTQ-specific archives, is vital says Gwinn-Becker. “Think about whose history gets marginalized, whose history gets moved to the sidelines, whose history gets just erased,” she prompts. “In a time of fake news, we need to point to evidence in the past. Queer people have existed since there were humans, but their stories are hidden,” Gwinn-Becker says.
Meanwhile, Gwinn-Becker accidentally finds herself as part of queer history too. Listed as one of Inc. Magazine’s Top 250 Female Founders of 2024, she is surrounded by names like Christina Aguilera, Selena Gomez, and Natalie Portman.
One name stuck out. “Never in my life did I think I’d be on the same list – other than the obvious one – with Billie Jean King. That’s pretty exciting,” she said.
But she can’t focus on the win for too long. “When I go to sleep at night, I think ‘there’s so much history, and we have to transfer it to the digital,’” she says, “We have a very small period in which to do that in a meaningful way.”
(This story is part of the Digital Equity Local Voices Fellowship lab through News is Out. The lab initiative is made possible with support from Comcast NBCUniversal.)
National
Biden’s acknowledgment of LGBTQ History Month ‘consequential’
Equality Forum honors 31 new ‘icons’ as annual commemoration kicks off
President Joe Biden signed a letter acknowledging Equality Forum’s LGBTQ History Month launch event held on Sunday, writing that, “by celebrating stories of bravery, resilience and joy, your example inspires hope in all people seeking a life true to who they are.”
Malcolm Lazin, Equality Forum executive director, said Biden’s letter is “consequential.” He noted that one year before the White House delivered a proclamation for Black History Month, it issued a letter signed by the president.
“It’s our hope that next year, our nation’s 47th president will issue that proclamation for LGBT History Month,” Lazin said.
Equality Forum is an LGBTQ civil rights organization with an educational focus based in Philadelphia. The group’s work includes coordinating LGBTQ History Month, producing documentary films and overseeing the application for and installation of government-approved queer historic markers.
When spearheading LGBTQ History Month for the first time back in 2006, Lazin said many pushed back against the idea. Some media outlets claimed it was trying to turn straight people gay or promote pedophilia.
But Lazin said the homophobic reactions died down when people were educated on topics that typically weren’t taught in a widespread way.
“We were demonized, marginalized, and vilified,” Lazin said. “One of the certain principal ways you’re going to make headway is if you humanize who we are, and also educate people about the important contributions we make to our common society.”
Education has always been Equality Forum’s solution to societal backlash or controversy since its inception, Lazin said.
The organization got its start in 1993 under the name PrideFest Philadelphia. Lazin, who was the founder, said it was created during a time when Pride parades were the main focus of the LGBTQ community.
In an effort to shift focus onto civil rights issues, PrideFest hosted its first LGBTQ summit that eventually transformed into an event featuring national and international organizations. Lazin said it was an effort to educate people on LGBTQ history as well as inform the community on queer rights around the world.
Though that event was terminated in 2020, Lazin is still focused on educating both queer and straight people on LGBTQ civil rights. Equality Forum honors 31 “LGBTQ icons” each year for every day in October.
This initiative began when Equality Forum started coordinating LGBTQ History Month back in 2006, but Lazin didn’t notice their efforts taking off until about five years in.
“In year one, people thought, ‘Oh yeah, those are like all the important names of the gay community,’” he said. “People paid a little bit more attention the following years, and all of a sudden they’re recognizing, ‘Oh, in a certain sense I was clueless about the role models that the gay community has.’”
This year’s icons being recognized include names like singers George Michael, Luther Vandross, and Sam Smith; pioneering drag queen William Dorsey Swann; “The Bachelor” star Colton Underwood; Wisconsin Congressman Mark Pocan; and longtime Washington Blade Editor Kevin Naff.
Pocan received the International Role Model Award during Sunday’s LGBTQ History Month launch event. It’s the longest-standing LGBTQ award in the nation, and has been presented to prominent figures like former Speaker of the House Nancy Pelosi and U.S. Secretary of Transportation Pete Buttigieg.
He said accepting the award allowed him to reflect on the progress that’s been made in a relatively short time.
“I was preparing to make some remarks for the event, and I realized that I’ve been kind of in the front row of a lot of the history making in the country, because more of our history is in the last several decades,” Pocan told the Washington Blade. “There are significant moments in the past, but where the real improvements have happened have been more recent.”
In 1995, former President Bill Clinton invited Pocan, who is gay, and other LGBTQ elected officials to The White House for the first time. When they arrived and were going through security, Pocan said they noticed everyone was wearing blue gloves.
Initially assuming it was due to enhanced security following the aftermath of the Oklahoma City Bombing, Pocan said they later discovered the Secret Service agents thought they could contract AIDS from out elected officials.
He said the Secret Service issued an apology letter and the Clinton administration made it clear that wasn’t their policy. Even more memorable for Pocan was when then-Vice President Al Gore made it a point to shake everyone’s hands at the event.
Comparing that memory to Biden’s recent letter puts the advancements of LGBTQ rights into perspective for Pocan. He said that’s the reason recognizing and remembering queer history is vital.
“If you don’t know the history, it’s too easy to repeat it,” he said.
The fight to recognize the global work done toward advancing LGBTQ civil rights, however, isn’t over, Lazin said.
Many states are working to restrict LGBTQ topics from being taught in schools. Florida Gov. Ron DeSantis signed HB 1069 last year, dubbed “Don’t Say Gay” by critics, to prohibit lessons on sexual orientation and gender identity.
The New College of Florida faced backlash when photos of hundreds of library books, many containing LGBTQ topics, overflowing a dumpster were shared online. A New College spokesperson said the books were “taken after discovering that the library did not follow all of the state administrative requirements while conducting the routine disposition of materials.”
Despite what the future may hold for LGBTQ content in schools, Lazin said the resources Equality Forum promotes, including the website featuring 31 queer icons in October, are always available.
“At least on this site, students, teachers, and guidance counselors have resources,” he said. “So if you’re an English teacher and you want to be celebrating LGBT History Month, click on poets, or click on authors. You’ve got a whole rich range of people to be able to bring into your curriculum.”
The reality of what LGBTQ History Month has become today is more than the work of one organization; Lazin said it’s the combined effort of local communities that are curious about their own history.
“While we could not possibly take on doing the history of all the cities around the country or in North America or around the world, it really has helped to encourage people to appreciate that history and to make sure that it is well documented,” Lazin said.
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Delaware’s Simpler absent in LGBTQ fights
Supreme Court begins fall term with major gender affirming care case on the docket
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‘Acting their asses off’ in ‘Exception to the Rule’
Is the Washington Post editorial board asleep?
It’s time we talk about trauma
GOP candidate in Del. House race expresses LGBTQ support
Claudia Sheinbaum sworn in as Mexico’s first female president
