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Windsor to Supreme Court: Strike down DOMA

Lesbian widow’s brief says anti-gay law should be subject to heightened scrutiny

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Edith Windsor, gay news, Washington Blade

Attorneys for Edith Windsor filed their against DOMA before the Supreme Court on Tuesday (Washington Blade file photo by Michael Key)

Attorneys for New York lesbian widow Edith Windsor are arguing that the Supreme Court should strike down the Defense of Marriage Act on the basis that it violates her right to equal protection under the U.S. Constitution.

In a 63-page brief filed on Tuesday, Windsor’s lawyers make their case against DOMA — saying it furthers no federal interest in procreation or dual sovereignty with the states — and argue the law should be subjected to heightened scrutiny, or a greater assumption it’s unconstitutional.

“DOMA’s discriminatory treatment of married gay couples violates Ms. Windsor’s right to the equal protections of the laws as guaranteed by the Fifth Amendment,” the brief states.

Signers of the brief include private attorney Robbie Kaplan and attorneys from the American Civil Liberties Union, who filed the lawsuit on behalf on Windsor.

The case pending before the Supreme Court is known as Windsor v. United States and challenges Section 3 of DOMA, which prohibits federal recognition of same-sex marriage. Windsor is suing the U.S. government because in 2009 under the law she had to pay $363,000 in estate taxes upon the death of her spouse, Thea Spyer. Married straight couples are exempt from the estate tax under current law.

A substantial portion of the brief is devoted to countering the arguments of the House Republican-led Bipartisan Legal Advisory Group, which filed a brief in favor of DOMA in late January. Under the direction of House Speaker John Boehner (R-Ohio), BLAG has taken up defense of DOMA following the Obama administration’s announcement in February 2011 that it would no longer defend the law.

Windsor’s attorneys, for example, say BLAG’s argument that DOMA serves a federal interest by preserving marriage as one man, one woman to encourage responsible procreation “speaks volumes” about the lack of validity of the law.

“This one difference cannot explain the federal government’s decision to impose a sweeping disability on married gay couples that excludes them from countless federal programs and protections, and that only harms their children,” the brief states. “Because this distinction is based on the one feature that distinguishes married gay couples from married straight couples, what BLAG is really arguing is that it is acceptable to discriminate against married gay couples simply because they are gay.”

The brief from Windsor’s attorneys comes on the heels of a similar brief filed against DOMA before the Supreme Court by the Justice Department, which has assisted in litigation against the law. Both briefs argue that the court should apply heightened scrutiny to its review of DOMA.

Windsor’s attorneys makes the argument that DOMA should be subjected to heightened scrutiny because, like other suspect classes, gay people have suffered a long history of discrimination, sexual orientation is a central part of a person’s identity, and gay people lack power in the political process.

The brief also states that gay people should be considered a suspect class because sexual orientation has no bearing on their ability to contribute to society.

“Despite pervasive discrimination, lesbians and gay men have served with great distinction in virtually every facet of American society, as artists, athletes, academics, soldiers, scientists, lawyers, judges, psychologists like Dr. Spyer, and computer programmers like Ms. Windsor,” the brief states.

The U.S. Second Circuit Court of Appeals applied heightened scrutiny to DOMA in its ruling against the law. It remains to be seen whether the Supreme Court will do the same, but if it did, that could have widespread implications on laws affecting gay people.

However, there’s a key difference between the arguments in the briefs with regard to how DOMA hold against an application of a lower standard of rational basis review. Windsor’s attorneys say the court should strike down DOMA even it applied this lower standard and didn’t apply heightened scrutiny. The Justice Department does not challenge the law on the basis of rational basis review, but admits DOMA would fail under a more searching form of that review.

The next step in the case is for other interested parties to file their friend-of-the-court briefs on behalf of Windsor. Those briefs are due Friday.

The House Republican-led Bipartisan Legal Advisory Group has 30 days to respond to the brief filed by Windsor’s attorneys. Oral arguments in the case are scheduled for March 27 and justices are expected to render a decision before their term ends in June.

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Mixed views among U.S. adults on trans issues: Pew

Most back non-discrimination, but divided on other issues

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A majority of U.S. adults back non-discrimination protections for transgender people, but are less supportive on other issues (Blade file photo by Michael Key)

A new survey from a leading non-partisan research center reveals Americans have mixed views on transgender issues at a time when states are moving forward with measures against transgender youth, with strong majorities favoring non-discrimination protections but weaker support for access to transition-related care among minors and participation in school sports.

The Pew Research Center issued the findings on Tuesday as part of the results of its ongoing study to better understand Americans’ views about gender identity and people who are transgender or non-binary. The findings are based on a survey of 10,188 U.S. adults from data collected as part of a larger survey conducted May 16-22.

A majority of respondents by wide margins favor non-discrimination protections for transgender people. A full 64 percent back laws or policies that would protect transgender people from discrimination in jobs, housing, and public spaces, while roughly 8-in-10 acknowledge transgender people face at least some discrimination in our society.

Additionally, nearly one half of Americans say it’s extremely important to use a transgender person’s new name after they undergo a transition, while an additional 22 percent say that is somewhat important. A smaller percentage, 34 percent, say using a transgender person’s pronouns is extremely important, and 21 percent say it is somewhat important.

But other findings were less supportive:

  • 60 percent say a person’s gender is determined by sex assigned at birth, reflecting an increase from 56 percent in 2021 and 54 percent in 2017, compared to 38 percent who say gender can be different from sex assigned at birth.
  • 54 percent say society has either gone too far or been about right in terms of acceptance, underscoring an ambivalence around transgender issues even among those who see at least some discrimination against transgender people.
  • About six-in-ten adults, or 58 precent, favor proposals that would require transgender athletes to compete on teams that match the sex they were assigned at birth as opposed to teams consistent with their gender identity, compared to 17 percent who oppose that and 24 percent neither favor nor oppose it.
  • 46 percent favor making it illegal for health care professionals to provide transition-related care, such as hormones or gender reassignment surgery, to someone younger than 18, compared to 31 percent who oppose it.
  • Americans are more evenly split when it comes to making it illegal for public school districts to teach about gender identity in elementary schools (which is favored by 41 percent, and opposed by 38 percent) and investigating parents for child abuse if they help someone younger than 18 obtain transition-related care (37 percent are in favor and 36 percent oppose it).

Young adults took the lead in terms of supporting change and acceptance. Half of adults ages 18 to 29 say someone can be a man or a woman even if that differs from the sex they were assigned at birth, compared to about four-in-10 of those ages 30 to 49 and about one-third of respondents 50 and older.

Predictably, stark differences could be found along party lines. Democrats by 59 precent say society hasn’t gone far enough in accepting people who are transgender, while 15 percent say it has gone too far and 24 percent say it’s been about right. For Republicans, 10 percent say society hasn’t gone far enough, while 66 percent say it’s gone too far and 22 percent say it’s been about right.

Read the full report here.

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Congress

House passes resolution that calls for Brittney Griner’s immediate release

Detained WNBA star’s trial to begin on July 1

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A participant in the Capital Pride parade parade in D.C. demands Brittney Griner's release. (Washington Blade photo by Michael Key)

In a resolution passed on June 24 by the U.S. House of Representatives, lawmakers called on Russia to immediately release detained WNBA star Brittney Griner. 

Griner was first arrested in Russia in the days leading up to its invasion in Ukraine. Authorities have charged her with drug trafficking after claiming that she attempted to pass through Moscow’s Sheremetyevo Airport while in possession of cannabis oil. 

The House’s resolution, introduced in May by U.S. Reps. Greg Stanton (D-Ariz.), Sheila Jackson Lee (D-Tex.) and Colin Allred (D-Texas), made multiple demands of Russia, including that the country “immediately release Brittney Griner,” provide her with consular access and humane treatment and that the U.S. “raise the case of Brittney Griner and to press for her release” in all its dealings with the Russian government.

“This legislation insists on our embassy personnel having access to Ms. Griner and restates our commitment to freeing her now,” Lee said in a statement after introducing the resolution. “We continue to pray for her family and we will continue to work together as three members of Congress, along with others, to spread the message that she is held wrongfully and must be freed now.”

The resolution also expressed support for both Griner’s family and for “all prisoners unjustly imprisoned in the Russian Federation.”

Allred, a member of the House Foreign Affairs Committee, took to Twitter following the passage of the resolution.

“I’m proud the House has spoken in passing our resolution and calling for Brittney Griner’s swift release,” Allred wrote. “Every day an American is held abroad is a lifetime, and I will keep working with @POTUS to do all we can to bring home every American detained abroad.”

Griner’s WNBA team, the Phoenix Mercury, welcomed the House’s passage of the resolution this past weekend.

“[Rep.] Stanton and many others are continuing to work with the White House, State Department and Brittney’s family to secure her safe return home,” the team wrote on Twitter.

The resolution comes after reporting revealed missteps on the part of the U.S. government in handling communication related to Griner’s detention. 

According to past reporting, the U.S. Embassy in Moscow failed to connect Griner with outside phone calls permitted by the Russian government when Griner’s wife, Cherelle Griner, attempted to call her. Cherelle Griner reportedly called 11 times on June 18 on the couple’s fourth anniversary but was unable to reach her wife due to what the State Department claimed to be a “logistical error.”

While the resolution is being heralded by its supporters, it contains no provisions intended to enforce the House’s demands for the release and humane treatment of Griner and others held by Russia. With less than one percent of criminal defendants in Russia being acquitted, it is unclear whether the resolution will do anything to persuade the country’s courts to permit Griner’s release.

Griner appeared in Russian court on Monday for a preliminary hearing prior to her trial that has now been scheduled to begin on July 1. It was also confirmed by Griner’s attorney on Monday that her detention had been extended for six months pending her trial. 

If convicted, she could face up to 10 years in prison.

“We must keep Brittney’s case on the forefront and make clear to the White House that her release should be one of the highest priorities for our government,” Cherelle Griner said in May.

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New York

Protests, revelry mark NYC Pride

Tens of thousands protested Roe ruling on Friday night

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The New York City Pride parade passes down Christopher Street in Manhattan's West Village on June 26, 2022. (Photo courtesy of Sean Robinson)

New York City Pride, one of the largest Pride celebrations in the world, rang in the weekend with equal parts celebration and protest. 

Although the annual Pride march was on Sunday, the entire weekend was filled with an outpouring of public anger in the wake of the U.S. Supreme Court’s decision to overturn Roe v. Wade. 

Protesters took to the streets of Manhattan on Friday with an estimated 17,000 people gathering to protest the ruling, which made abortion imminently illegal in roughly half of states. At least 25 people were arrested at the Friday night protests, which spread from Washington Square Park through Midtown to Bryant Park. 

In light of the Supreme Court’s landmark decision — which advocates say will harm members of the LGBTQ community — NYC Pride announced that Planned Parenthood would kick off Sunday’s Pride march as the first group to walk. In their statement, NYC Pride said that “[The Supreme Court’s] dangerous decision puts millions in harm’s way, gives government control over our individual freedom to choose, and sets a disturbing precedent that puts many other constitutional rights and freedoms in jeopardy.” 

“As millions gather for LGBTQIA+ Pride this weekend in New York City and cities across the country, our voices will be heard — for the LGBTQ people impacted and the millions with whom we stand in solidarity,” read the statement. “Pride was born of protest and will always be a space to fight injustice and discrimination. Join us as we advocate for bodily autonomy at this year’s NYC Pride March.” 

In addition to the march; NYC Pride had a full slate of Pride programming during the week leading up to it, including Pride Island at Governor’s Island, Youth Pride and a human rights conference. Queer clubs and bars throughout the city hosted various Pride-themed events throughout the weekend.

NYC Pride was not the only organization mobilizing this weekend. 

Reclaim Pride NYC hosted a “Queer Liberation March for Trans and BIPOC Freedom, Reproductive Justice, and Bodily Autonomy,” in partnership with pro-choice groups and community organizations. 

“The [Queer Liberation March] is the annual people’s protest march without corporate funding; corporate floats; politicians’ grandstanding; or police control or involvement,” said the Reclaim Pride Coalition. 

Although Pride originated from a moment of violent tension between police and LGBTQ people at the Stonewall Inn, officers on Sunday carefully patrolled the entire NYC Pride march route. When the apparent sound of gunshots nearly sparked a stampede in Washington Square Park during the parade, the New York Police Department said there were “no shots fired,” later confirming that the sounds were due to fireworks being set off at the park. 

The Washington Post noted fears of violence against the queer community circulated at Pride celebrations across the country.

Police also responded to reports of a shooting at San Francisco Pride, although no suspects or witnesses were found. In light of the epidemic of gun violence — from last month’s elementary school shooting in Uvalde, Texas, to the massacre at the Pulse nightclub in Orlando, Fla., in 2016 that left 49 people dead — a fear of active shooters and widespread public anger at the prospect of less rights characterized Pride’s usually jubilant atmosphere.

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