National
Court attorney argues House GOP can’t defend DOMA
Jackson also asserts justices lack standing to hear case
A court-appointed attorney made her debut arguments Thursday on why House Republicans are unable to participate in pending litigation challenging the Defense of Marriage Act ā while also asserting the Supreme Court lacks jurisdiction to hear the case.
In a 40-page legal brief filed on Thursday, Vicki Jackson, a Harvard law professor, lays out several reasons for why the House Bipartisan Legal Advisory Group ā as well as the Justice Department ā don’t have standing in the case.
Jackson provides four major reasons for why BLAG, a House panel that voted 3-2 along party lines to take up defense of DOMA after the Obama administration declined to defend the law, doesn’t have standing under Article III to defend DOMA.
They are 1) BLAG’s generalized claim of injury is insufficient; 2) one chamber alone lacks standing to assert an injury to Congress; 3) BLAG wasn’t authorized to represent the views of the U.S. House; and 4) legal precedent under the case of Chadha v. INS deprives BLAG of standing.
“Where one house declines to participate (as the Senate did here), Congress has not spoken, much less asserted any injury that this Court would be able to determine,” Jackson said. “It is, after all ‘a Congress’ that is ‘vested’ by the Constitution with ‘all legislative Powers herein granted.'”
But Jackson also argues that the Justice Department, which appealed the district court ruling against DOMA to the U.S. Second Circuit Court of Appeals, also doesn’t have standing in the case. Instead of appealing the case, Jackson says the Obama administration should have refunded plaintiff Edith Windsor the $363,000 she paid in estate taxes as a result of DOMA.Ā As a consequence of invalidating this appeal, Jackson determines that the Supreme Court doesn’t have jurisdiction to consider whether DOMA is constitutional on a nation-wide basis.
Jackson offers four reasons: 1) legal precedent under Chadha v. INS doesn’t support the Supreme Court’s jurisdiction; 2) the Justice Department’s effort to obtain a decision with which it agrees presents no case or controversy; 3) even if Article III were found, “prudential standing considerations” confirm the court’s lack of jurisdiction; 4) a prevailing party is barred from being able to appeal a case.
“The United States, though nominally a defendant below and a petitioner here, is in fact in agreement with both Windsor and the court below,” Jackson writes. “Its only real interest here is in obtaining a precedent from a higher court. This interest, by the party ‘attempting to invoke the federal judicial power’ … is insufficient for Article III.”
Jackson was hired by the Supreme Court on Dec. 11 to argue before the court that neither BLAG nor the Obama administration are able to participate in litigation before the Supreme Court shortly after it announced they intended to review the constitutionality of DOMA and California’s Proposition 8.
Doug NeJaime, who’s gay and a law professor at Loyola Law School, said the brief is interesting not only because of arguments made over BLAG’s lack of standing, but because Jackson asserts the Supreme Court doesn’t have jurisdiction to review the case.
“It does seem very significant that the brief argues not only that BLAG does not have standing but also, more interestingly, that the Court does not have jurisdiction because the executive branch agrees with Windsor and the decision below,” NeJaime said. “If the Court does not have jurisdiction, that would mean we would not get a ruling on the merits of Section 3 of DOMA with nationwide applicability.”
Federal Government
GLAAD catalogues LGBTQ-inclusive pages on White House and federal agency websites
Trump-Vance administration to take office Monday
GLAAD has identified and catalogued LGBTQ-inclusive content or references to HIV that appear on WhiteHouse.gov and the websites for several federal government agencies, anticipating that these pages might be deleted, archived, or otherwise changed shortly after the incoming administration takes over on Monday.
The organization found a total of 54 links on WhiteHouse.gov and provided the Washington Blade with a non-exhaustive list of the “major pages” on websites for the Departments of Defense (12), Justice (three), State (12), Education (15), Health and Human Services (10), and Labor (14), along with the U.S. Equal Employment Opportunity Commission (10).
The White House web pages compiled by GLAAD range from the transcript of a seven-minute speech delivered by President Joe Biden to mark the opening of the Stonewall National Monument Visitor Center to a readout of a roundtable with leaders in the LGBTQ and gun violence prevention movements and the White House Office of National Drug Control Policy’s 338-page FY2024 budget summary, which contains at least a dozen references to LGBTQ-focused health equity initiatives and programs administered by agencies like the Substance Abuse and Mental Health Services Administration.
Just days after Trump took office in his first term, news outlets reported that LGBTQ related content had disappeared from WhiteHouse.gov and websites for multiple federal agencies.
Chad Griffin, who was then president of the Human Rights Campaign, accused the Trump-Pence administration of “systematically scrubbing the progress made for LGBTQ people from official websites,” raising specific objection to the State Department’s removal of an official apology for the Lavender Scare by the outgoing secretary, John Kerry, in January 2017.
Acknowledging the harm caused by the department’s dismissal of at least 1,000 employees for suspected homosexuality during the 1950s and 60s “set the right tone for the State Department, he said, adding, āIt is outrageous that the new administration would attempt to erase from the record this historic apology for witch hunts that destroyed the lives of innocent Americans.”
In response to an inquiry from NBC News into why LGBTQ content was removed and whether the pages would return, a spokesperson said “As per standard practice, the secretary’s remarks have been archived.” However, NBC noted that “a search of the State Department’s website reveals not much else has changed.”
U.S. Federal Courts
Appeals court hears case challenging Florida’s trans healthcare ban
District court judge concluded the law was discriminatory, unconstitutional
Parties in Doe v. Ladapo, a case challenging Florida’s ban on healthcare for transgender youth and restrictions on the medical interventions available to trans adults, presented oral arguments on Wednesday before the U.S. Court of Appeals for the 11th Circuit in Atlanta.
The case was appealed by defendants representing the Sunshine State following a decision in June 2024 by Judge Robert Hinkle of the U.S. District Court for the Northern District of Florida, who found “the law and rules unconstitutional and unenforceable on equal protection grounds,” according to a press release from the National Center for Lesbian Rights, which is involved in the litigation on behalf of the plaintiffs.
The district court additionally found the Florida healthcare ban unconstitutional on the grounds that it was “motivated by purposeful discrimination against transgender people,” though the ban and restrictions will remain in effect pending a decision by the appellate court.
Joining NCLR in the lawsuit are attorneys from GLAD Law, the Human Rights Campaign, Southern Legal Counsel, and the law firms Lowenstein Sandler and Jenner and Block.
“As a mother who simply wants to protect and love my child for who she is, I pray that the Eleventh Circuit will affirm the district courtās thoughtful and powerful order, restoring access to critical healthcare for all transgender Floridians,” plaintiff Jane Doe said. “No one should have to go through what my family has experienced.ā
“As a transgender adult just trying to live my life and care for my family, it is so demeaning that the state of Florida thinks itās their place to dictate my healthcare decisions,” said plaintiff Lucien Hamel.
“Members of the legislature have referred to the high quality healthcare I have received, which has allowed me to live authentically as myself, as āmutilationā and āan abominationā and have called the providers of this care āevil,ā” Hamel added. “We hope the appellate court sees these rules and laws for what truly are: cruel.ā
āTransgender adults donāt need state officials looking over their shoulders, and families of transgender youth donāt need the government dictating how to raise their children,ā said Shannon Minter, legal director of NCLR. āThe district court heard the evidence and found that these restrictions are based on bias, not science. The court of appeals should affirm that judgment.ā
Noting Hinkle’s conclusion that the ban and restrictions were “motivated by animus, not science or evidence,” Simone Chris, who leads Southern Legal Counsel’s Transgender Rights Initiative, said, āThe state has loudly and proudly enacted bans on transgender people accessing healthcare, using bathrooms, transgender teachers using their pronouns and titles, and a slough of other actions making it nearly impossible for transgender individuals to live in this state.”
Lowenstein Sandler Partner Thomas Redburn said, āThe defendants have offered nothing on appeal that could serve as a valid basis for overturning that finding” by the district court.
āNot only does this dangerous law take away parentsā freedom to make responsible medical decisions for their child, it inserts the government into private health care matters that should be between adults and their providers,” said Jennifer Levi, senior director of transgender and queer rights at GLAD Law.
State Department
LGBTQ rights abroad not discussed during Marco Rubio confirmation hearing
Senate expected to confirm Fla. Republican as next secretary of state
U.S. Sen. Marco Rubio (R-Fla.) on Wednesday did not speak about LGBTQ rights abroad during his confirmation hearing to become the next secretary of state.
The Florida Republican in his opening statement to the Senate Foreign Affairs Committee noted President-elect Donald Trump “returns to office with an unmistakable mandate from the voters.”
“They want a strong America, a strong America engaged in the world, but guided by a clear objective to promote peace abroad and security and prosperity here at home,” said Rubio.
“The direction he has given for the conduct of our foreign policy is clear,” he added. “Every dollar we spend, every program we fund, and every policy we pursue must be justified with the answer to three simple questions: Does it make America safer? Does it make America stronger? Does it make America more prosperous?”
Trump nominated Rubio a week after Vice President Kamala Harris conceded she lost the presidential election.
Rubio in 2022Ā defendedĀ Florida’s āDonāt Say Gayā law that Republican Gov. Ron DeSantis signed. The Florida Republican that year also voted against the Respect for Marriage Act that passed with bipartisan support.
LGBTQ rights a cornerstone of Biden-Harris administration’s foreign policy
President Joe Biden in February 2021Ā signed a memo that committed the U.S. to promoting LGBTQ and intersex rights abroad as part of his administrationās overall foreign policy. A few months later he named Jessica Stern, the former executive director of Outright International, a global advocacy group, as special U.S. envoy for the promotion of LGBTQ and intersex rights abroad.
Ned Price, who was the State Departmentās first openly gay spokesperson, during a May 2021 interview with the Washington Blade noted the decriminalization of consensual same-sex sexual relations was one of the administrationās priorities in its efforts to promote LGBTQ rights abroad.
Trump during his first administration tapped then-U.S. Ambassador to Germany Richard Grenell, who has been tapped as special missions envoy, to lead an initiative that encouraged countries to decriminalize homosexuality. Activists with whom the Blade has previously spoken questioned whether this effort had any tangible results.
Stern in 2022 noted the Biden-Harris administration also supported marriage equality efforts in countries where activists said they were possible through legislation or the judicial process.
Brittney Griner in December 2022 returned to the U.S. after Russia released her in exchange for a convicted arms dealer. The lesbian WNBA star had been serving a nine-year prison sentence in a penal colony after a court earlier that year convicted her on the importation of illegal drugs after Russian customs officials found vape canisters containing cannabis oil in her luggage at Moscowās Sheremetyevo Airport.
The State Department in 2022 began to issue passports with an āXā gender marker.
The Biden-Harris administration in response to the signing of Ugandaās Anti-Homosexuality Act sanctioned officials and removed the country from a program that allows sub-Saharan African countries to trade duty-free the U.S. Harris during a 2023 press conference with then-Ghanaian President Nana Akufo-Addo in Accra, the Ghanaian capital, spoke about LGBTQ rights.
Chantale Wong, the U.S. director of the Asian Development Bank, in 2022 became the first openly lesbian woman ambassador. David Pressman, the outgoing U.S. ambassador to Hungary, and Scott Miller, the outgoing U.S. ambassador to Switzerland and Liechtenstein, are two of the other American ambassadors who Biden nominated that are gay.
Outgoing Secretary of State Antony Blinken in 2021 appointed former U.S. Ambassador to Malta Gina Abercrombie-Winstanley as the State Department’s first chief diversity and inclusion officer.
U.S. Sen. Jim Risch (R-Idaho), who chairs the Senate Foreign Affairs Committee, criticized the State Department’s DEI efforts during Rubio’s confirmation hearing.
“The Biden administration often undercut effective foreign policy by inserting ideological and political requirements into the fabric of personnel decisions and policy execution,” said Risch.
“Rather than making hires or promotions based on merit and effectiveness, the department created new diversity, equity, inclusion, and accessibility (DEIA) requirements that distracted from this mission, undermined morale, and created an unfair and opaque process for promotions and performance evaluations,” he added. “Fealty to progressive politics became the benchmark for success. As we look around the United States that view is diminishing very quickly amongst even large progressive cooperations.”
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