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DOJ calls on Supreme Court to strike down DOMA

Obama administration cites ‘severe harms’ for gay couples

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Supreme Court, gay news, Washington Blade
Supreme Court, gay news, Washington Blade

DOJ filed a brief before the Supreme Court arguing DOMA is unconstitutional. (Washington Blade file photo by Michael Key)

The Obama administration on Friday argued that the Defense of Marriage Act  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 — noting the harm the law causes married same-sex couples and the history of discrimination against gay and lesbian people — while arguing that DOMA should be subjected to heightened scrutiny, or a greater assumption it’s unconstitutional.

“The law 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 married 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. 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, mentally ill, or immoral,” the brief states. “Like gender, race,or religion, sexual orientation bears no inherent relation to a person’s 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 one’s 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.’ … 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.

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The White House

EXCLUSIVE: Jill Biden to host White House Pride celebration

Event to take place on June 26

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First lady Jill Biden (Washington Blade photo by Michael Key)

First lady Jill Biden will host the White House Pride Month celebration on June 26, according to a press release previewed by the Washington Blade.

The party on the South Lawn will also feature a performance by singer, songwriter, actress, and record producer Deborah Cox and musical selections by DJ Trifle.

This year’s event comes on Equality Day this year, which honors the anniversaries of three landmark U.S. Supreme Court decisions that expanded rights and protections for LGBTQ Americans: Lawrence v. Texas (2003), which struck down sodomy laws, United States v. Windsor (2013), which struck down the Defense of Marriage Act, and Obergefell v. Hodges (2015), which made marriage equality the law of the land.

The White House highlighted some of the “historic action” taken by President Joe Biden to “advance LGBTQ+ equality for the community,” including:

  • Signing into law the landmark Respect for Marriage Act which protects the rights of same-sex and interracial couples;
  • Appointing a historic number of LGBTQI+ and transgender appointees, including the first transgender American to be confirmed by the U.S. Senate;
  • Directing all federal agencies to strengthen civil rights protections on the basis of gender identity, resulting in agencies working to strengthen protections in housing, health care, education, employment, the criminal justice system, nutrition programs, and more;
  • Reversing the ban on open service by transgender members of the military;
  • Signing an executive order focused on LGBTQI+ children and families that directs agencies to address the dangerous and discredited practice of so-called “conversion therapy” and finalized rule-making that ends disparities that LGBTQI+ children and parents face in the child welfare and foster care system and protects against disparities in health care; and
  • President Biden continues to call on Congress to pass the Equality Act to enshrine civil rights protections for LGBTQI+ Americans in federal law.

Last year, the president and the first lady hosted the celebration, which was the largest Pride event ever held at the White House.

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National

65% of Black Americans support Black LGBTQ rights: survey

Results show 40% have LGBTQ family member

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(Logo courtesy of the NBJC)

The National Black Justice Coalition, a D.C.-based LGBTQ advocacy organization, announced on June 19 that it commissioned what it believes to be a first-of-its-kind national survey of Black people in the United States in which 65 percent said they consider themselves “supporters of Black LGBTQ+ people and rights,” with 57 percent of the supporters saying they were “churchgoers.”

In a press release describing the findings of the survey, NBJC said it commissioned the research firm HIT Strategies to conduct the survey with support from five other national LGBTQ organizations – the Human Rights Campaign, the National LGBTQ Task Force, the National Center for Lesbian Rights, Family Equality, and GLSEN.

“One of the first surveys of its kind, explicitly sampling Black people (1,300 participants) on Black LGBTQ+ people and issues – including an oversampling of Black LGBTQ+ participants to provide a more representative view of this subgroup – it investigates the sentiments, stories, perceptions, and priorities around Black values and progressive policies, to better understand how they impact Black views on Black LGBTQ+ people,” the press release says.

It says the survey found, among other things, that 73 percent of Gen Z respondents, who in 2024 are between the ages of 12 and 27, “agree that the Black community should do more to support Black LGBTQ+ people.”

According to the press release, it also found that 40 percent of Black people in the survey reported having a family member who identifies as LGBTQ+ and 80 percent reported having “some proximity to gay, lesbian, bisexual, or queer people, but only 42 percent have some proximity to transgender or gender-expansive people.”

The survey includes these additional findings:

• 86% of Black people nationally report having a feeling of shared fate and connectivity with other Black people in the U.S., but this view doesn’t fully extend to the Black LGBTQ+ community. Around half — 51% — of Black people surveyed feel a shared fate with Black LGBTQ+ people.

• 34% reported the belief that Black LGBTQ+ people “lead with their sexual orientation or gender identity.” Those participants were “significantly less likely to support the Black LGBTQ+ community and most likely to report not feeling a shared fate with Black LGBTQ+ people.”

• 92% of Black people in the survey reported “concern about youth suicide after being shown statistics about the heightened rate among Black LGBTQ+ youth.” Those expressing this concern included 83% of self-reported opponents of LGBTQ+ rights.

• “Black people’s support for LGBTQ+ rights can be sorted into three major groups: 29% Active Accomplices, 25% Passive Allies (high potential to be moved), 35% Opponents. Among Opponents, ‘competing priorities’ and ‘religious beliefs’ are the two most significant barriers to supporting Black LGBTQ+ people and issues.”

• 10% of the survey participants identified as LGBTQ. Among those who identified as LGBTQ, 38% identified as bisexual, 33% identified as lesbian or gay, 28% identified as non-binary or gender non-conforming, and 6% identified as transgender.

• Also, among those who identified as LGBTQ, 89% think the Black community should do more to support Black LGBTQ+ people, 69% think Black LGBTQ+ people have fewer rights and freedoms than other Black people, 35% think non-Black LGBTQ+ people have fewer rights and freedom than other Black people, 54% “feel their vote has a lot of power,” 51% live in urban areas, and 75% rarely or never attend church.

Additional information about the survey from NBJC can be accessed here.

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U.S. Federal Courts

Club Q shooter sentenced to life in prison for federal hate crimes

Five people killed in 2022 mass shooting in Colo.

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Assistant U.S. Attorney General Kristen Clarke of the Justice Department’s Civil Rights Division. (Justice Department YouTube screenshot)

Anderson Lee Aldrich, 24, formerly of Colorado Springs, Colo., was sentenced to 55 concurrent life sentences to run consecutive to 190 years in prison after pleading guilty to 74 hate crimes and firearms charges related to the Nov. 19, 2022, mass shooting at Club Q, an LGBTQ establishment in Colorado Springs.  

According to the plea agreement, Aldrich admitted to murdering five people, injuring 19, and attempting to murder 26 more in a willful, deliberate, malicious, and premeditated attack at Club Q. According to the plea, Aldrich entered Club Q armed with a loaded, privately manufactured assault weapon, and began firing. Aldrich continued firing until subdued by patrons of the club. As part of the plea, Aldrich admitted that this attack was in part motivated because of the actual or perceived sexual orientation and gender identity of any person.

“Fueled by hate, the defendant targeted members of the LGBTQIA+ community at a place that represented belonging, safety, and acceptance — stealing five people from their loved ones, injuring 19 others, and striking fear across the country,” said Attorney General Merrick Garland. “Today’s sentencing makes clear that the Justice Department is committed to protecting the right of every person in this country to live free from the fear that they will be targeted by hate-fueled violence or discrimination based on who they are or who they love. I am grateful to every agent, prosecutor, and staff member across the Department — from the U.S. Attorney’s Office for the District of Colorado, to the Civil Rights Division, the ATF, and FBI — for their work on this case. The Justice Department will never stop working to defend the safety and civil rights of all people in our country.”

“The 2022 mass shooting at Club Q is one of the most violent crimes against the LGBTQIA+ community in history,” said FBI Director Christopher Wray. “The FBI and our partners have worked tirelessly towards this sentencing, but the true heroes are the patrons of the club who selflessly acted to subdue the defendant. This Pride Month and every month, the FBI stands with the survivors, victims, and families of homophobic violence and hate.”

“ATF will not rest until perpetrators like this defendant are prosecuted to the fullest extent of the law,” said Steven Dettelbach, director of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). “I hope today’s life sentence brings at least some peace to the victims and survivors of this senseless, horrific tragedy. That this sentence should come during Pride month reinforces how far we have left to go before all communities, including all LGBTQIA+ communities, are safe here. It also shows how far ATF and all our partners will go to ensure hatred does not win.”

“The defendant’s mass shooting and heinous targeting of Club Q is one of the most devastating assaults on the LGBTQIA+ community in our nation’s history. This sentence cannot reclaim the lives lost or undo the harms inflicted. But we hope that it provides the survivors, the victims’ families, and their communities a small measure of justice,” said Assistant Attorney General Kristen Clarke of the Justice Department’s Civil Rights Division. “Our message today should be loud and clear. No one should have to fear for their life or their safety because of their gender identity or sexual orientation. The Justice Department will vigorously investigate and prosecute those who perpetrate hate-fueled, bias-driven attacks.”

“Hate has no place in our country and no place in Colorado” said Acting U.S. Attorney Matt Kirsch for the District of Colorado. “I hope that today’s sentence demonstrates to the victims and those connected to this horrific event that we do not tolerate these heinous acts of violence.”

The FBI Denver Field Office, Colorado Springs Police Department, and ATF investigated the case.

Assistant U.S. Attorneys Alison Connaughty and Bryan Fields for the District of Colorado and, Maura White of the Justice Department’s Civil Rights Division prosecuted the case.

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