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House Dems to urge Supreme Court to strike down DOMA

Other briefs filed by businesses, ‘red state’ coalition, GOP

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House Minority Leader Nancy Pelosi will lead Democrats in a brief against DOMA before the Supreme Court (Washington Blade file photo by Michael Key)

House Minority Leader Nancy Pelosi will lead Democrats in a brief against DOMA before the Supreme Court. (Washington Blade file photo by Michael Key)

House Democrats are circulating a legal brief that will argue against the constitutionality of the Defense of Marriage Act before the Supreme Court, the Washington Blade has learned.

Drew Hammill, a spokesperson for House Minority Leader Nancy Pelosi (D-Calif.), said his boss will lead other Democrats in the friend-of-the-court brief before the Supreme Court, which is due on Friday. The case pending before the court is known as Windsor v. United States.

“There will be a strong expression of support from the House Democratic Caucus in support of overturning DOMA and casting DOMA into the dustbin of history,” Hammill said.

Hammill declined to provide additional details about the filing, so it’s unknown what the argument of the brief will be. It will likely counter the arguments presented by the House Republican-led Bipartisan Legal Advisory Group that the committee speaks for the House as a whole.

The individual House members who signed the brief and the total number of signatures wasn’t immediately known. But Ilan Kayatsky, a spokesperson for Rep. Jerrold Nadler (D-N.Y.), said his boss is the principal signer of the brief. Rep. Mark Takano (D-Calif), the only openly gay Asian-American in Congress, and Rep. Kyrsten Sinema (D-Ariz.), the only bisexual member, independently told the Washington Blade they would sign the brief.

It’s not surprising House Democrats are preparing a brief because they’ve participated in each of the DOMA challenges pending before appellate courts.

They filed a brief before the U.S. Second Circuit Court of Appeals when the Windsor case was before that court. House Democrats also filed a brief before the First Circuit in the combined case of Gill v. Office of Personnel Management and Massachusetts v. Department of Health & Human Services, and another before the Ninth Circuit in the case of Golinski v. United States.

House Democrats are preparing their brief amid a flurry of news regarding other briefs that have been submitted in the case against DOMA before the Supreme Court as well as Hollingsworth v. Perry, the case challenging California’s Proposition 8.

LGBT advocates are also eagerly waiting to see whether the Obama administration will take part in the lawsuit against Prop 8 before the Supreme Court. The deadline for the Justice Department to do so is Thursday.

Following the White House news briefing on Wednesday, the Blade shouted out to White House Press Secretary Jay Carney an inquiry on whether the Justice Department would file a brief. Without turning around to answer as he left the room, Carney replied, “I don’t have anything for you on that.”

A group of 278 businesses and organizations — including tech companies like Xerox and Microsoft as well as web companies like Google, Twitter and eBay — filed a friend-of-the-court brief before the Supreme Court on Wednesday arguing that DOMA is bad for business.

In the 36-page brief, the companies argue that DOMA imposes compliance burdens upon employers because they treat benefits — such as health care benefits and family leave — differently for straight married employees and gay married employees.

“Although marriages are celebrated and recognized under state law, DOMA, a federal law withholding marital benefits from some lawful marriages but not others, requires that employers treat one employee differently from another, when each is married, and each marriage is equally lawful,” the brief states. “DOMA thus impairs employer/employee relations and other business interests.”

The brief also argues that DOMA requires companies to affirm discrimination they believe is injurious to their corporate missions and is contrary to non-discrimination laws and policies.

“DOMA imposes on amici not simply the considerable burden of compliance and cost,” the brief states. “DOMA conscripts amici to become the face of its mandate that two separate castes of married persons be identified and separately treated.”

Also among the signatories is the U.S. Conference of Mayors, the official non-partisan organization of all United States cities with populations of 30,000 or more.

Philadelphia Mayor Michael Nutter, president of the U.S. Conference of Mayors and a member of the group Mayors for the Freedom to Marry, said the conference is proud to take part in the brief.

“Mayors want their citizens and businesses to prosper, and that means supporting them against discrimination – from any level of government,” Nutter said. “Married means married, and mayors and businesses agree that DOMA can’t stand.”

Another brief was filed on Wednesday by a coalition of groups representing Red States where same-sex marriage isn’t legal. The “Red State” brief, which responds to both the Prop 8 and DOMA cases, was signed by groups like Kentucky Equality Federation, Equality Virginia, the Utah Pride Center and the the Utah Pride Center and the Campaign for Southern Equality.

The 34-page brief argues that the Supreme Court should find laws related to sexual orientation should be subject to heightened scrutiny, citing laws that demean gay students in the education system as well as bans on adoption and same-sex marriage.

“The keystone of existing systems of de jure denigration of gay Americans is the denial of their right to marry,” the brief states. “It is both the crux of the matter and the root of other forms of discrimination against gay citizens. The heartbreaking message to committed, gay couples: Your love is unworthy of marriage.”

And The New York Times reported that more than two-dozen Republicans have signed onto the brief against Prop 8 being circulated by gay former Republican National Committee Chair Ken Mehlman, which received significant media attention this week. The additional reported signers include former Rep. Charles Bass of New Hampshire, who signed on as co-sponsor of DOMA repeal late last year, and Beth Myers, who was an adviser to former Republican presidential candidate Mitt Romney.

The Times initially reported that former congresswoman Marilyn Musgrave, who authored the Federal Marriage Amendment while in Congress, was another signer. But Musgrave denied to local Denver media that she signed the brief and the Times later ran a correction saying the signer was in fact B. J. Nikkel, who last year was the only Republican on the Colorado House Judiciary Committee to vote in support of civil unions and worked as district director for Musgrave.

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Federal Government

EXCLUSIVE: Robert Garcia urges US officials to protect LGBTQ people during Pride Month

Gay Calif. congressman sent letter to top authorities on June 12

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Participants of the Capital Pride Festival in D.C. on June 8, 2024. Gay U.S. Congressman Robert Garcia (D-Calif.) has urged U.S. officials to ensure LGBTQ people are safe during Pride Month. (Washington Blade photo by Emily Hanna)

U.S. Rep. Robert Garcia (D-Calif.) on June 12 sent a letter to Secretary of State Antony Blinken, Homeland Security Secretary Alejandro Mayorkas, and Federal Bureau of Investigation Director Christopher Wray to work to ensure LGBTQ people during Pride events.

“Over the last several weeks, your respective agencies and departments have issued stark warnings, and travel advisories to the public over potential threats from foreign terrorist organizations (FTO), and their supporters during this year’s Pride Month,” said Garcia in his letter. “I understand that these steps have come after deeply concerning increases in anti-LGBTQ+ rhetoric, calls for targeted violence, and foiled violent plots.”

The FBI on May 10 issued an advisory that warned of potential violence at Pride events and other LGBTQ-specific events. The State Department on May 17 — the International Day Against Homophobia, Biphobia, and Transphobia — announced a similar warning.

“Ensuring that people can peacefully and safely celebrate Pride and the diversity of the LGBTQ+ community is of utmost importance,” wrote Garcia, a gay man who represents California’s 42nd Congressional District that includes Long Beach.

June 12 also marked eight years since a gunman killed 49 people inside the Pulse nightclub in Orlando, Fla.

The massacre at the time was the deadliest mass shooting in modern U.S. history. The gunman pledged his allegiance to the Islamic State, even though there is no evidence that suggests the extremist group ordered him to carry out the massacre. 

“This week marks the eight (sp) anniversary of the horrific Pulse nightclub Orlando shooting — during which the attacker deliberately and viciously targeted the LGBTQ+ community,” wrote Garcia in his letter. “It is important to put the recent escalation of extremist anti-LGBTQ+ propaganda and messaging in the context the Pulse nightclub shooter who was influenced by these same forces of extremism.”

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U.S. Federal Courts

Title IX protections blocked in six more states

Ruling applies to Va.

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(Bigstock photo)

BY McKENNA HORSLEY | A federal judge has blocked new Title IX rules, including those aimed at protecting LGBTQ students from discrimination in K-12 schools, and sided with Republican attorneys general in several states — including Kentucky. 

Chief Judge Danny Reeves of the U.S. District Court in Eastern Kentucky on Monday issued a ruling siding with Republican Attorney General Russell Coleman and his counterparts in five other states. The ruling prevents the U.S. Department of Education from “implementing, enacting, enforcing, or taking any action to enforce the Final Rule, Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance,” which was set to begin Aug. 1. 

Kentucky Attorney General Russell Coleman (Kentucky Lantern photo by Mathew Mueller)

Coleman and the GOP attorneys general filed the lawsuit in April. At the time, they argued the Department of Education “used rulemaking power to convert a law designed to equalize opportunities for both sexes into a far broader regime of its own making” with the new Title IX regulations. 

Reeves limited the injunction to the plaintiff states of Tennessee, Kentucky, Ohio, Indiana, Virginia and West Virginia.

The Biden administration introduced the rules to “build on the legacy of Title IX by clarifying that all our nation’s students can access schools that are safe, welcoming, and respect their rights,” U.S. Secretary of Education Miguel Cardona said in a statement. The rules also would have rolled back Trump administration changes that narrowly defined sexual harassment and directed schools to conduct live hearings, allowing those who were accused of sexual harassment or assault to cross-examine their accusers.

President Joe Biden with U.S. Secretary of Education Miguel Cardona. (Official White House photo by Adam Schultz)

In their complaint, the state attorneys general said that under the Biden rule, “Men who identify as women will, among other things, have the right to compete within programs and activities that Congress made available to women so they can fairly and fully pursue academic and athletic excellence — turning Title IX’s protections on their head … And anyone who expresses disagreement with this new status quo risks Title IX discipline for prohibited harassment.” 

Established in 1972, Title IX was created to prevent “discrimination based on sex in education programs or activities that receive federal financial assistance,” according to the Department of Education.

Reeves wrote in his opinion that “the Department of Education seeks to derail deeply rooted law” created by the implementation of Title IX. 

“At bottom, the department would turn Title IX on its head by redefining ‘sex’ to include ‘gender identity.’ But ‘sex’ and ‘gender identity’ do not mean the same thing,” he wrote. “The department’s interpretation conflicts with the plain language of Title IX and therefore exceeds its authority to promulgate regulations under that statute.” 

In a press release, Coleman’s office said Monday that schools that would fail to comply with the new rules would risk losing federal funding. Citing the Department of Education, the office said Kentucky’s public and private schools received a total of $1.1 billion in federal funding last year.

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“As a parent and as attorney general, I joined this effort to protect our women and girls from harm. Today’s ruling recognized the 50-plus years of educational opportunities Title IX has created for students and athletes,” Coleman said in the press release. “We’re grateful for the court’s ruling, and we will continue to fight the Biden administration’s attempts to rip away protections to advance its political agenda.”

A spokesperson for the department said it was reviewing the ruling.

“Title IX guarantees that no person experience sex discrimination in a federally-funded educational environment,” the spokesperson added. “The department crafted the final Title IX regulations following a rigorous process to realize the Title IX statutory guarantee. The department stands by the final Title IX regulations released in April 2024, and we will continue to fight for every student.”

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McKenna Horsley

McKenna Horsley covers state politics for the Kentucky Lantern. She previously worked for newspapers in Huntington, W.Va., and Frankfort, Ky. She is from northeastern Kentucky.

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The preceding story was previously published by the Kentucky Lantern and is republished with permission.

The Kentucky Lantern is an independent, nonpartisan, free news service based in Frankfort a short walk from the Capitol, but all of Kentucky is our beat.

We focus on how decisions made in the marble halls of power ripple through the lives of Kentuckians. We bring attention to injustices and hold institutions and officials accountable. We tell the stories of Kentuckians who are making a difference and shine a light on what’s working. Our journalism is aimed at building a fairer, healthier Kentucky for all. 

Kentucky Lantern is part of States Newsroom, the nation’s largest state-focused nonprofit news organization.

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The White House

Press secretary reaffirms the administration’s commitment to advancing LGBTQ rights

Karine Jean-Pierre also highlighted mental health efforts

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White House Press Secretary Karine Jean-Pierre (Washington Blade photo by Christopher Kane)

White House Press Secretary Karine Jean-Pierre began her briefing with reporters on Monday by honoring Pride Month as a time to “reflect on the progress we have made in pursuit of equality, justice, inclusion” and “recommit ourselves to do more to support LGBTQI+ rights at home and around the world.”

She said that while the Biden-Harris administration has taken “historic action” to expand freedoms and protections for the community “since day one,” state legislatures last year filed more than 600 anti-LGBTQ bills, which disproportionately target transgender youth.

Not only are conservative state lawmakers potentially on track to surpass that number in 2024, but Republican members of Congress along with the party’s presumptive presidential nominee, Donald Trump, have pledged their support for at least a dozen anti-LGBTQ policies at the federal level.

Jean-Pierre said this administration “is going to continue to speak out and stand up against these attacks,” adding, “as President Biden says, these young [transgender and queer] people are some of the bravest people he knows, but no one should have to be brave just to be themselves.”

The press secretary concluded her opener by discussing the 988 Suicide and Crisis Lifeline, which provides a “line dedicated to serving LGBTQI+ young people that can be reached by dialing nine eight and pressing three.”

Afterwards, when fielding questions from reporters, Jean-Pierre noted how many of the challenges facing LGBTQ youth have dovetailed with the ongoing mental health crisis in America.

She also addressed a ruling on Monday that blocked the administration’s newly passed LGBTQ-inclusive Title IX rules, which clarify that discrimination on the basis of sexual orientation and gender identity is covered by the statute’s language barring sex discrimination in education programs and activities that receive federal assistance.

A Trump-appointed judge on the U.S. District Court for the Western District of Louisiana had issued an injunction against the regulations on Thursday, with a handful of Republican state attorneys general promising more legal challenges.

Declining to address specific legal questions that she noted are best directed to the Justice Department, Jean-Pierre stressed the need for students to feel safe and to be treated equally.

“That is why the protections are all about making sure students have equal rights restored,” she said.

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