National
HISTORIC: Supreme Court hears oral arguments on Prop 8
Standing issues make up considerable portion of questioning at court hearing
The U.S. Supreme Court heard oral arguments on California’s Prop 8 on Tuesday. (Washington Blade photo by Michael Key)
The atmosphere at the U.S. Supreme Court was tense on Tuesday as justices hammered attorneys with tough questions on the constitutionality of California’s Proposition 8 — with a particular emphasis on inquiries about standing.
Within moments of the opening of the oral arguments in the Prop 8 case, known as Hollingsworth v. Perry, justices interrupted both Charles Cooper, who is arguing in favor of Prop 8, and Ted Olson, who is arguing against it on behalf of two plaintiff gay couples, with questions about standing.
CHECK OUT THE AUDIO OF THE ORAL ARGUMENTS HERE!
Anti-gay groups, such as ProtectMarriage.com, are defending Prop 8 in court because California officials — Gov. Jerry Brown and Attorney General Kamala Harris — have elected not to do so. Whether these groups have standing to defend the law is a question posed by the court.
Associate Justice Sonia Sotomayor, who was appointed by President Obama, was among those asking questions about standing, saying it’s “counterintuitive” for a state to grant standing to proponents of a ballot initiative because their views are in support of the measure.
Cooper said the California Supreme Court in 2011 ruled that proponents of a ballot initiative like Prop 8 bear a responsibility to defend the measure in court should state officials decline to do so. Otherwise, public officials could effectively veto a measure by declining to defend it.
But Olson, a former U.S. solicitor general under President George W. Bush, disputed the notion that anti-gay groups have standing in the Prop 8 case because they are not elected officials.
“Because you’re not an officer of the State of California, you don’t have a fiduciary duty to the State of California, you’re not bound by the ethical standards of an officer of the State of California to represent the State of California, you could have conflicts of interest,” Olson said. “And as I said, you could be incurring enormous legal fees on behalf of the state when the state hasn’t decided to go that route.”
The issue of standing is seen as crucial because if the court determines that anti-gay groups don’t have standing to defend Prop 8, the ruling of U.S. District Judge Vaughn Walker would remain in place and marriage rights for same-sex couples would likely be restored in California.
Associate Justice Samuel Alito expressed skepticism during the oral arguments that proponents of Prop 8 lack standing to defend their ballot measure, indicating someone should be able to defend the statute if public officials decline to do so.
“In a state that has initiative, the whole process would be defeated if the only people who could defend the statute are the elected public officials,” Alito said. “The whole point … of the initiative process was to allow the people to circumvent public officials about whom they were suspicious.”
Justices known for being conservative hinted at the way they may rule in the case. Alito, appointed by former President George W. Bush, cautioned against a ruling in favor of same-sex marriage, which he said is “newer than cell phones and the Internet.”
“There isn’t a lot of data about its effect,” Alito said. “It may turn out to be a good thing. It may turn out not to be a good thing.”
Associate Justice Antonin Scalia said the legalization of same-sex marriage would necessitate the legalization of gay adoption, and sociologists have “considerable disagreements” on whether that causes harm to a child.
“I don’t think we know the answer to that question,” Scalia said.
It’s unclear what disagreements Scalia was referencing. Just last week, the American Academy of Pediatrics endorsed same-sex marriage, saying it helps children. Following Scalia’s remarks, Associate Justice Ruth Bader Ginsburg reminded Scalia that adoption isn’t at issue because California has legalized adoption rights for gay couples.
Associate Justice Anthony Kennedy, an appointee of former President Reagan who’s considered a swing vote, acknowledged that sociological information on the issue is new, but said children who are currently living with same-sex partners are suffering “legal injury” as a result of Prop 8.
“There is an immediate legal injury or legal — what could be a legal injury, and that’s the voice of these children,” Kennedy said. “There are some 40,000 children in California … that live with same-sex parents, and they want their parents to have full recognition and full status.”
Chief Justice John Roberts, another Bush appointee, made comments in an exchange with Olson suggesting he doesn’t believe gay couples have a right to marry. Many had hoped Roberts would vote to overturn Prop 8 because he sided with more liberal justices in the court decision upholding the health care reform law.
“I’m not sure that it’s right to view this as excluding a particular group,” Roberts said. “When the institution of marriage developed historically, people didn’t get around and say let’s have this institution, but let’s keep out homosexuals. The institution developed to serve purposes that, by their nature, didn’t include homosexual couples.”
When Olson pointed out that gay couples had the right to marry before Prop 8 was passed, Roberts responded by saying that it was only 140 days after the California Supreme Court ruled in favor of same-sex marriage.
Roberts then asked Olson whether it’s more reasonable to view the situation as the state court making a change to an institution that’s “been around since time immemorial.”
“The California Supreme Court, like this Supreme Court, decides what the law is,” Olson replied. “The California Supreme Court decided that the Equal Protection and Due Process Clauses of that California Constitution did not permit excluding gays and lesbians from the right to get married.”
The courtroom was crowded with observers who were both for and against Prop 8. Among those in attendance was California Lt. Gov. Gavin Newsom, who gained notoriety in 2004 when as San Francisco mayor he distributed marriage licenses to gay couples before the state court ordered him to stop.
U.S. Solicitor General Donald Verrilli argued against Prop 8 on behalf of the Obama administration, saying Prop 8 should be struck down because gay people have “suffered a history of discrimination” and the law should be subject to heightened scrutiny.
Verrilli said the Obama administration is “not taking a position” on whether same-sex marriage should be legalized throughout the country as a result of the ruling — but said the door could be open to such a ruling in future cases. Instead, Verrilli advocated the idea of a “nine-state solution.” Under that approach, states that offer domestic partnerships or civil unions, but not same-sex marriage, would have to allow gay couples to enter into the union of marriage.
The solicitor general said California’s own domestic partnership law providing gay couples legal benefits but not the distinction of marriage “undercuts” any rationale for withholding the label of marriage for gay couples.
But the idea of a nine-state solution seemed distasteful to justices. Associate Justice Stephen Breyer, an appointee of former President Bill Clinton, noted that states that provide absolutely no legal recognition to gay couples provide more harm to gay couples than the states that offer domestic partnerships.
Verrili also maintained the Obama administration isn’t taking a position on whether proponents of Prop 8 have standing to defend the law, but said the notion they lack Article III standing in court is the stronger argument.
Both the attorneys for and against Prop 8 also made their cases on the constitutionality of the measure that were along the lines of the briefs they previously submitted to the court.
Cooper maintained California voters in 2008 were essentially hitting a “pause button” by approving Prop 8 and were awaiting further information of the impact on other parts of the country where same-sex marriage is legal.
“That would hardly be irrational for that voter to say, I believe that this experiment, which is now only four years old, even in Massachusetts, the oldest state that is conducting it, to say, I think it better for California to hit the pause button and await additional information from the jurisdictions where this experiment is still maturing,” Cooper said.
Olson, on the other hand, argued Prop 8 was unconstitutional because the measure walls off from a certain group of people the right to marry.
“It’s an individual right that this court again and again and again has said: the right to get married, the right to have the relationship of marriage a personal right,” Olson said. “It’s a part of the right of privacy, association, liberty and the pursuit of happiness.”
National
Blade reporters reflect on covering Pulse massacre 10 years ago
Orlando stepped up to comfort and support its LGBTQ community
Friday marks 10 years since a gunman killed 49 people inside the Pulse nightclub in Orlando, Fla.
The massacre, which, at the time was the deadliest mass shooting in modern U.S. history, left the LGBTQ community in this country and around the world reeling. It also prompted renewed calls for gun control.
The OnePulse Foundation, which Pulse owner Barbara Poma founded after the massacre, raised upwards of $20 million for a memorial that never materialized.
The city of Orlando in 2023 purchased the Pulse property for $2 million. Crews earlier this year demolished the former nightclub. The city of Orlando has pledged $12 million for a permanent memorial that is scheduled to open in 2027.
Washington Blade Editor Kevin Naff and International News Editor Michael K. Lavers reported from Orlando in the days after the massacre. Here are their reflections a decade later.
Describe the scene when you arrived in Orlando. Where did you go first?
NAFF: Most mainstream reporters headed for the Pulse nightclub, but it was already roped off with police keeping bystanders at least a full city block away. Instead, I hurried to The Center, Orlando’s LGBTQ community center, downtown. I expected to find it locked down with tight security but instead the doors were flung open and everyone inside was busy at work. No tears, just dedicated staff and volunteers working the phones to secure visas and free plane tickets for relatives of the victims. The director gave me a tour and in the back storage room were pallets and pallets of bottled water stacked to the ceiling. When I asked what all the water was for, he said the city had issued a call for blood donations and the lines to donate were 1,500 deep in 100-degree heat. So The Center drove around to all the sites to deliver water to all those standing in line.
That scene was so inspiring and a testament to the strength and resiliency of the LGBTQ community. We’d seen tragedy before and knew how to respond.
LAVERS: I arrived in Orlando about 14 hours after the massacre took place. The city was shellshocked.
Equality Florida, the state’s LGBTQ advocacy group, and other organizations held a press conference at The Center shortly after my flight from D.C. landed. I drove there from the airport. Terry DeCarlo, who was The Center’s executive director at the time, along with then-Equality Florida Executive Director Nadine Smith and others spoke on behalf of a community that was reeling. The Center at the press conference handed out business cards that read, “You matter.” I had it in my wallet when I drove to a makeshift memorial that was a block from Pulse — the police had cordoned off the area immediately around the nightclub. A local resident who I interviewed told me that she did not know if her friends who were at Pulse when the gunman opened fire survived. Another person with whom I spoke shared a similar story.
A torrential downpour began shortly after I arrived. The storm was an apt metaphor for the raw emotion of that horrific day.
What’s your most prominent memory of covering the Pulse massacre?
NAFF: I was covering a vigil in downtown Orlando when then-Florida Gov. Rick Scott’s motorcade arrived unannounced. To that point, he had not addressed the LGBTQ angle and seemed to be downplaying the fact that this was an attack on our community. I hurried to the front row as he held an impromptu news conference. To my dismay, he took only three short questions from TV reporters then rushed away. I grabbed his communications director and insisted that Scott take a question from the LGBTQ media. She agreed and told me to wait next to the SUV. When Scott approached, I asked him, “What is your message to LGBTQ Floridians?”
To my surprise, he sputtered, stammered, and broke into tears before telling me, “This was an attack, what else can you say? This was an attack against the gays, an attack against Hispanics, an attack against our country, our nation and it’s disgusting. The biggest thing we do now is ask how to make sure this doesn’t happen again.”
It was his first public acknowledgment that the LGBTQ community was the target of the attack.
LAVERS: Two moments stand out for me.
The first moment is when then-President Barack Obama and then-Vice President Joe Biden traveled to Orlando on June 16, four days after the massacre. I was one of the reporters who the White House asked to be part of the local press pool. I was about 50 feet away from Obama and Biden when they placed bouquets with 49 flowers — one for each of the victims — at a makeshift memorial between City Hall and the Dr. Phillips Center for the Performing Arts in downtown Orlando. Obama in remarks he made to the press pool mentioned one of the gay victims who had once said, “We cannot be afraid.” The emotions of the last four days simply became too much, and I broke down. Another reporter who was part of the press pool who was standing next to me realized I had broken down. She put her hand on my back to console me.
The second moment came a few weeks later when I was in Puerto Rico to cover the community’s response to the massacre and to interview victims’ relatives. Orlando has a very large Puerto Rican community, and nearly half of those who died at Pulse were of Puerto Rican descent.
I drove to Caguas, a city that is roughly 20 miles south of San Juan, the island’s capital, on July 7, and interviewed Aida Velázquez in her small apartment. Her son, Frankie “Jimmy” de Jesús, died at Pulse. Aida talked about her son, and she showed me pictures of him. Jimmy also danced Jíbaro, a Puerto Rican folk dance. The interview took place less than a month after the massacre — Jimmy’s funeral took place in Caguas less than two weeks earlier.
I sat in my car after the interview and sobbed uncontrollably for nearly five minutes. Nothing can possibly prepare you for interviewing a mother who had just lost her child in the most horrific way possible.
How did the local community respond and what about their response gave you hope or inspiration?
NAFF: In addition to the staff at The Center working to assist victims and their families, everyday Orlando residents stepped up to help however they could. At the downtown vigils, straight mothers and fathers carried signs offering hugs to anyone who needed them. I encountered a group of young teenage males who approached a group of law enforcement officers and appeared to perform for them. When they finished, I asked what they were doing and they told me that they were straight friends who lived in Orlando and wanted to do something to help so they composed an uplifting rap song and walked around performing it for anyone who needed cheering up.
LAVERS: The way that Orlando rallied around the LGBTQ community was simply inspiring.
Imam Muhammad Musri, president of the Islamic Society of Central Florida, at a memorial service that took place at the Dr. Phillips Performing Arts Center on June 13 said his organization was “united as Americans when it comes to standing with the LGBT community and their rights to live freely and to practice their lives here.” This comment underscored the outpouring of support that Orlando showed its LGBTQ community after Pulse. It was also a call for the better angels among us to reject hate in all of its forms.
What surprised you most about the experience?
NAFF: I was most surprised — and moved — after talking to Rev. Debreita Taylor of Oasis Fellowship Ministries, an LGBTQ-affirming ministry.
“My message is love. Period. Love. Period. There’s nothing in the word of God that faith leaders can go to that teaches hate,” she told me. “Have faith and believe that evil and hate can be eradicated one person at a time. How do you treat someone? How do you embrace someone who treats you wrong? We all bleed, laugh, hope and have great victories and major defeats. And so, you know me, even if you don’t know my name — I’m you.”
LAVERS: It admittedly took me quite a while to fully process what I experienced in Orlando — I was focused on doing my job as a reporter, which was to cover the story, and, most importantly, show the human impact of what had happened. I suppose one surprising aspect of the time I spent in Orlando was that I found myself feeling more defiant against those who seek to destroy our community. They want us to live in fear, and I refuse to give them that satisfaction.
What, if anything, changed as a result of Pulse?
NAFF: In the immediate aftermath of the attack, queer spaces began rethinking their approach to security, which has served us well in the years since. Sadly, just a year later, Pulse was bumped to the No. 2 deadliest mass shooting in U.S. history when a gunman opened fire on the Route 91 Harvest music festival in Las Vegas, killing 60 people. Americans and their politicians never learn from these largely preventable tragedies. The carnage continues.
LAVERS: Gun violence remains a shameful scourge in this country. Our community remains vulnerable to violence and discrimination. President Donald Trump, Vice President JD Vance, and other politicians here in Washington, around the country, and overseas continue to use our community to advance an anti-equality agenda. The carnage continues, as my colleague correctly notes, but our community remains strong and defiant. That gives me hope.
National
Queen Jean is Tony’s first transgender winner
Designer/activist wins for work on ‘Cats: The Jellicle Ball’
It was a historic night at the 79th annual Tony Awards on Sunday as Queen Jean won the award for Best Costume Design of a Musical, making her the first out transgender person to win a Tony.
“This experience has been monumental. We are here for the legacy of queer people, trans people,” she said. “We are taking up space in ways we have to take up space. We have to shift the paradigm. So I just want to say, thank you all so much for this incredible honor. The world right now is deeply, deeply combating so many ailments, and we know as a society that when we come together, we can make real, permanent change.”
She won the award for her work on “Cats: The Jellicle Ball” and was also nominated for best costume design of a play for “Liberation.”
In addition to her stage work, Queen Jean is the founder of Black Trans Liberation, an organization that supports trans and gender-nonconforming people in New York City.
National
Madonna turns Times Square into massive dance floor
Pop icon celebrates Pride month with surprise performance
Pop icon Madonna celebrated Pride month with a pop-up performance in New York City’s Times Square on Thursday to the delight of 50,000 fans.
She performed for about 15 minutes high above street level, including several songs from her new album “Confessions II” due on July 3, along with a trio of songs from the first “Confessions on a Dance Floor.”
In addition to the brand new “Love Sensation,” she performed “I Feel So Free” and “Bring Your Love,” plus “Hung Up,” “Get Together” and “I Love New York.” She wished the crowd a happy Pride season; the event was shared with audiences through Grindr’s first-ever livestream.
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