National
DOJ calls on Supreme Court to strike down DOMA
Obama administration cites ‘severe harms’ for gay couples
The Obama administration on Friday argued that the Defense of Marriage Act Ā should be struck down by the Supreme Court because it “inflicts a vast array of…severe harms” on married same-sex couples.
In a 54-page legal brief, the U.S. Justice Department lays out its case for why it believes Section 3 of DOMA is unconstitutional ā noting the harm the law causes married same-sex couples and the history of discrimination against gay and lesbian people ā while arguing that DOMA should be subjected to heightened scrutiny, or a greater assumption it’s unconstitutional.
“TheĀ lawĀ denies to tens of thousands of same-sex couples who are legally married under state law an array of important federal benefits that are available to legally marriedĀ opposite-sex couples,” the brief states. “Because this discrimination cannot be justified as substantially furthering any important governmental interest, Section 3 is unconstitutional.”
The brief is signed by Solicitor General Donald Verrilli as well as Stuart Delery, the gay principal deputy attorney general who’s litigated against DOMA in oral arguments in lower courts.Ā The lawsuit before the Supreme Court is known as Windsor v. United States, which was filed by the American Civil Liberties Union.
The brief enumerates several benefits that are withheld from married same-sex couples under DOMA, such as the denial of certain housing benefits for service members, the lack of Social Security survivor benefits and the inability of gay Americans to sponsor their foreign-born same-sex spouses for residency in the United States. It also notes plaintiff and New York widower Edith Windsor was forced to pay $363,000 in estate taxes upon the death of her spouse, Thea Spyer.
But the Justice Department also makes the case that laws related to sexual orientation should be subjected to heightened scrutiny because gay people have been subjected to a history of discrimination, citing bias in employment and immigration as well as vulnerability to hate crimes and police harassment.
Additionally, the brief contends DOMA merits heightened scrutiny because sexual orientation bears no relation on an individual’s ability to contribute to society and gays are a minority with limited political power.
“Historically, discrimination against gay and lesbian people had nothing to do with ability or performance, but rested instead on the view that they are, for example, sexual deviants,Ā mentally ill,Ā or immoral,” the brief states.Ā “Like gender,Ā race,or religion, sexual orientation bears no inherent relation to a personās ability to participate in or contribute to society.”
While asserting DOMA fails the test of heightened scrutiny, the Justice Department says it doesn’t challenge the law if a lower standard of rational basis review were applied. However, even under this standard, the brief maintains the law would fail under a more searching form of that review.
“To the extent sexual orientation may be considered to fall short in some dimension, the history of discrimination and the absence of relation to oneās capabilities associated with this particular classification would uniquely qualify it for scrutiny under an approach that calls for a measure of added focus to guard against giving effect to a desire to harm an ‘unpopular group,'” the brief states. “Section 3 would fail to satisfy any such analysis, largely for the reasons it fails heightened scrutiny.”
In addition to the merits brief, the Justice Department filed on the same day another brief addressing jurisdictional questions in the case. That brief responds to questions over whether the executive branch agrees DOMA is unconstitutional and whether the House Republican-led Bipartisan Legal Advisory Group has standing to participate. BLAG, following a party-line vote of 3-2, has taken up defense of DOMA in the administration’s stead.
In that 38-page brief, the Justice Department contends the Supreme Court has jurisdiction, but BLAG lacks standing to seek review of lower court decisions striking down DOMA.
“BLAG is an entity located within the Legislative Branch,” the brief states. “The Constitution assigns to that Branch only specifically enumerated ‘legislative powers.’ …Ā Although Congress (and the individual Houses) may create offices to assist with legislative tasks, the authority of such an office may not include the ‘discretionary power to seek judicial relief’ on behalf of the United States.”
Also on Friday, other briefs were filed by the ACLU and BLAG in response to the jurisdictional questions in the case. In its brief, BLAG argues it can participate in the lawsuit, but the Justice Department doesn’t have standing to take part.
LGBT advocates have been calling on the Obama administration to file a similar brief in the lawsuit pending before the Supreme Court challenging California’s Proposition 8. As of Thursday, the White House hasn’t said whether the administration will file a brief, although President Obama said the solicitor general is “looking” at such action. The deadline for the Obama administration to file a brief in the case is Thursday.
In the DOMA case, the next step is for the ACLU to file its brief on the merits, which is expected on Tuesday. Oral arguments in the case are set for March 27 and justices are expected to render a decision before their term ends in June.
The White House
Trump’s first week in office sees flurry of anti-LGBTQ executive actions
Issuance of two orders and rescission of seven specifically targeted the LGBTQ community
On the first day and in the first week of his second term, President Donald Trump issued two executive orders taking aim specifically at LGBTQ people while rescinding seven actions by the Biden-Harris administration that expanded rights and protections for the community.
As detailed by the Human Rights Campaign, the anti-trans order, titled āDefending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,ā would prohibit the federal government from recognizing people and populations whose birth sex does not match their gender identity, while facilitating discrimination against LGBTQ communities “in the workplace, education, housing, healthcare, and more.”
Additionally, the order directs the attorney general to allow “people to refuse to use a transgender or nonbinary personās correct pronouns, and to claim a right to use single-sex bathrooms and other spaces based on sex assigned at birth at any workplace covered by the Civil Rights Act of 1964 and federally funded spaces.”
The U.S. Departments of State and Homeland Security are further instructed to stop issuing documents like passports, visas, and Global Entry cards that conflict with the new, restrictive definition of sex that excludes consideration of trans and gender diverse identities.
The order also would prohibit federal funding, including through grants and contracts, for any content that is believed to promote “gender ideology,” while implementing restrictions on the use of federal resources to collect data on matters concerning gender identity.
There would also be consequences for particularly vulnerable populations, such as rules prohibiting trans women from accessing domestic violence shelters, forcing trans women to be housed with men in prisons and detention facilities, and prohibiting correctional facilities from providing gender affirming healthcare of any kind.
The second executive order targeting LGBTQ people would end diversity, equity, and inclusion programs across the federal government. HRC points out that “The preamble to the order includes a mention of the Project 2025 trope ‘gender ideology,’ while the language does not actually define DEI ā meaning that “confusion and differing understandings of what DEI entails are likely to extend the regulatory process and may, in the meantime, have a chilling effect on any efforts that could potentially be considered ‘DEI.'”
Of the Biden-era executive actions that were repealed, HRC called special attention to “President Bidenās directive to agencies to implement the Supreme Court ruling inĀ Bostock v. Clayton County, which found that Title VIIās prohibition of discrimination on the basis of sex includes prohibitions of discrimination on the basis of sexual orientation and gender identity.”
The organization notes that the ruling, decided in 2020, remains binding precedent.
State Department
State Department directive pauses most US foreign aid spending
PEPFAR among impacted programs
Secretary of State Marco Rubio on Friday directed State Department personnel to stop nearly all U.S. foreign aid spending for 90 days.
A copy of the directive that Politico obtained requires State Department staffers to immediately issue “stop-work orders” on nearly all “existing foreign assistance awards.”
President Donald Trump on Jan. 20 issued an executive order that paused U.S. foreign aid “for assessment of programmatic efficiencies and consistency with United States foreign policy.”
“All department and agency heads with responsibility for United States foreign development assistance programs shall immediately pause new obligations and disbursements of development assistance funds to foreign countries and implementing non-governmental organizations, international organizations, and contractors pending reviews of such programs for programmatic efficiency and consistency with United States foreign policy, to be conducted within 90 days of this order,” it reads. “The Office of Management and Budget (OMB) shall enforce this pause through its apportionment authority.”
Politico reported Rubio’s directive is more expansive than the executive order, although it does not stop military aid to Egypt and Israel, emergency food assistance and ālegitimate expenses incurred prior to the date of this.ā Ā The Presidentās Emergency Plan for AIDS Relief, known as PEPFAR, is among the programs impacted.
āThis is a matter of life or death,ā said International AIDS Society President Beatriz Grinsztejn in a press release. āPEPFAR provides lifesaving antiretrovirals for more than 20 million people ā and stopping its funding essentially stops their HIV treatment. If that happens, people are going to die and HIV will resurge.
The promotion of LGBTQ and intersex rights was a cornerstone of the Biden-Harris administration’s foreign policy.
The decriminalization of consensual same-sex sexual relations was one of the previous White House’s priorities in these efforts. The U.S. Agency for International Development in 2023 released its first-ever policy for LGBTQ- and intersex-inclusive development.
Rubio this week issued a directive that bans embassies and other U.S. diplomatic institutions from flying the Pride flag. A second directive that Rubio signed directs State Department personnel to “suspend” any passport application in which an “X” gender marker is requested.
āThis guidance applies to all applications currently in progress and any future applications,” reads the directive. “Guidance on existing passports containing an āXā sex marker will come via other channels.ā
The directive stems from a sweeping executive order ā “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government” ā that Trump signed on Monday after he took office. The president in his inaugural speech noted the federal government’s “official policy” is “there are only two genders, male and female.”
National
Historic Oscar showing for āEmilia PĆ©rezā stirs controversy
Karla SofĆa GascĆ³n is first trans nominee for Best Actress
When the Academy of Motion Picture Arts and Sciences makes the annual announcement of Oscar nominations, itās always a day of divisive opinions ā but even the most divisive Oscar controversies of the past are bound to end up feeling like a pleasant chat over brunch compared with the one that has predictably erupted over yesterdayās revelation of the Academyās slate of contenders, in which āEmilia PĆ©rezā became not only the most-nominated film of the year, but the first to score a Best Actress nod for a transgender actor.
Itās a milestone that hardly comes as a surprise. The filmās star, Karla SofĆa GascĆ³n, has been considered a front-runner in the category throughout the awards season so far, already winning the Golden Globe for Best Lead Actress (Musical of Comedy) and snagging an equivalent nomination for the upcoming SAG Awards ā whose membership also happens to represent the largest percentage of Academy voters, thereby making their choices a solid indicator of how things are going to go down on Oscar night. In any other year, apart from being noted as a historic first and inevitably ruffling a few conservative feathers, GascĆ³nās inclusion in the lineup would likely otherwise feel like business as usual.
That, however, was before the return of convicted felon Donald Trump to the White House. Days after the former reality show star signed an executive order proclaiming that the United States will henceforth legally recognize only ātwo gendersā (justified in part by the invocation of āconcrete reality,ā whatever that is), it seems that Academy voters have a dissenting opinion ā and suddenly, a simple Oscar nomination feels like an act of resistance against the government itself.
For those who have yet to see the film (which is now streaming on Netflix), āEmilia PĆ©rezā is a sprawling musical drama in which GascĆ³n portrays a powerful Mexican cartel boss who enlists an idealistic lawyer (Zoe SaldaƱa, also nominated for an Oscar, as Best Supporting Actress) to facilitate a gender transition, so that she can disappear from her brutal life of violent conflict and finally live freely as the true self she has always had to keep hidden. Itās an epic-length saga, blending multiple genres into a larger-than-life, unpredictable wild ride that both celebrates traditional cinematic conventions and shatters them.
In addition to the kudos for GascĆ³n and SaldaƱa, the film ā which, though its dialogue is mostly in Spanish, was produced in France, giving it the additional distinction of earning the highest number of nominations of any non-English-language movie in Oscar history ā also earned its place among the 10 Best Picture contenders, where it competes against more traditionally styled favorites like āConclave,ā āWicked,ā and the Chalamet-as-Dylan biopic āA Complete Unknown,ā as well as āartsierā titles like āAnoraā and āThe Brutalist.ā Additionally, filmmaker Jacques Audiard is nominated as director and co-screenwriter (with Thomas Bidegain, LĆ©a Mysius, and Nicolas Livecchi, in the Adapted Screenplay category), with two nods in the Best Song category and a host of so-called ātechnicalā awards to round out its whopping total of 13 – only one nomination fewer than the three films (All About Eve,ā āTitanic,ā and āLa La Landā) currently tied at 14.
Other films on the Oscar roster also gathered a high tally; āThe Brutalist,ā Brady Corbettās critically lauded examination of the āAmerican Dreamā through the experiences of a Holocaust survivor (Adrien Brody) on his way to becoming a celebrated architect in the mid-20th-century United States, got 10, as did John M. Chuās blockbuster adaptation of āWickedā (including one each for stars Cynthia Erivo and Ariana Grande). Among other multiple nominees are āConclave,ā āAnora,ā and āA Complete Unknown,ā along with āThe Substance,ā which earned a Best Actress nod for previous dark horse candidate Demi Moore as one of its total.
Other nominations of note: Colman Domingo, whose well-deserved Best Actor nomination for āSing Singā gives him another shot at becoming the first openly gay person to win in that category; a pair of nominations for literary adaptation āNickel Boys,ā a story of two Black American youths at an abusive reform school in 1960s Florida; a nomination for Isabella Rossellini, daughter of three-time-Oscar winner Ingrid Bergman and Italian cinema maestro Roberto Rossellini, as Best Supporting Actress for her role in āConclaveā; and the inclusion of āMemoir of a Snail,ā a uniquely poignant Australian film which features (among other non-kid-friendly things) a pair of queer characters being subjected to conversion therapy, among the nominees for Best Animated Feature.
As always, there were snubs, too: egregiously, Daniel Craig, the star of Luca Guadagninoās āQueerā who was widely seen as a front runner, was shut out for a Best Actor nomination. Guadgnino, who also directed the bisexual tennis romance āChallengersā this year, saw both of his movies come up empty-handed; also left out was a Best Actress nod for Pamela Andersonās breathtaking comeback turn in āThe Last Showgirl,ā despite promising buzz and a strong showing at previous awards ceremonies this season.
Nevertheless, while in other years these subjectively labeled hits and misses might be fodder for plenty of debate in the public forum, none of them are even a storm in a teacup compared with the uproar around āEmilia PĆ©rezā ā which thus far (at this writing, anyway) has focused on detracting from the merits of the film itself, rather than at its transgender star. We get it: āEmilia PĆ©rezā is not a film for all tastes, so itās not surprising that many film fans are appalled at the acclaim it has received.
Even so, thanks to the atmosphere of transphobic oppression that has been forced upon us by Trump and his extremist cronies, any discussion of the film and its nominations must now be considered with all oneās critical thinking skills, because any arguments, either for or against its worthiness, might merely be a smokescreen for a deeper agenda than defending a set of cinematic aesthetics.
For our part, of course, we celebrate the film for its bold inclusivity, as well as its fantastical exploration of not only gender, but justice, corruption, politics, and all the contradictory passions that make being human what it is. We also celebrate GascĆ³nās nomination and the significant historic impact it carries ā particularly coming at this precarious moment in the American story.
As for Oscar night, we have no idea what to expect, so our only prediction about the ceremony on March 2 also serves as a bit of advice, courtesy of a quote from a previous Oscar champion: āFasten your seat belts, itās going to be a bumpy night.ā
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