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HISTORIC: Supreme Court hears oral arguments on Prop 8

Standing issues make up considerable portion of questioning at court hearing

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Supreme Court, gay news, Washington Blade
Supreme Court, gay marriage, marriage equality, Proposition 8, gay news, Washington Blade

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.”

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Memphis police release Tyre Nichols arrest, fatal beating video

29-year-old Black man died after traffic stop

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(Screenshot from NBC News Now)

Three videos consisting of both body cam footage and street surveillance footage were made public by the Memphis Police Department Friday evening showing the violent arrest and beating of Memphis resident 29-year-old Tyre Nichols.

Nichols died three days after he was beaten by police in a traffic stop in the Hickory Hill neighborhood around 8:22 p.m. on Jan. 7, in an altercation Memphis Police Chief C.J. Davis described, saying “in my 36 years in law enforcement, I don’t think I have witnessed the disregard for a human being displayed in this video.” 

Shelby County District Attorney Steve Mulroy announced Thursday that five now-former Memphis police officers — Tadarrius Bean, Demetrius Haley, Emmitt Martin III, Desmond Mills, Jr., and Justin Smith — were fired for misconduct, indicted by a grand jury and taken into custody.

Each is charged with second-degree murder, aggravated assault, two counts of aggravated kidnapping, two counts of official misconduct and official oppression. By Friday morning, they had posted bond.

Left: Justin Smith, top center: Emmitt Martin III, top right: Desmond Mills Jr., center left: Demetrius Haley, right bottom: Tadarrius Bean (Photos provided by Memphis Police Department)

As news of the beating and death spread beyond Tennessee, officials expressed concern that release of the footage would touch off violent protest in reaction.

The attorneys and family of Nichols asked for justice for their son, and peace in their city, at a press conference in Memphis on Friday, WREG News 3 reported.

Speakers included family members, attorneys Ben Crump, Antonio Romanucci and Van Turner, president of the Memphis branch of the NAACP.

Rodney Wells, Nichols’ stepfather, said that he initially wanted first-degree murder charges against the officers, but the family is satisfied with second-degree murder.

He pleaded for peace in Memphis Friday night.

“We want peace. We do not want any type of uproar. We do not want any type of disturbance,” Wells said. “Please, please, protest, but protest safely.”

Protests took place in Memphis after police released more than an hour of footage in the case with some major highways temporarily shut down.

Other protests were organized in New York, as well as D.C., Sacramento, Los Angeles, Atlanta, Philadelphia and Seattle, with police at the ready for potential violence.

“Tonight, I stand with the millions of Americans sending condolences and love to the family of Tyre Nichols as the navigate this unimaginably difficult tragedy,” said D.C. Mayor Muriel Bowser in a statement. “We are a nation traumatized by violence, especially violence against Black Americans. We don’t even need to see the video to feel outraged that those five former officers, sworn to protect their community and now arrested and charged with murder, killed Tyre. But tonight, many people will see the video and it will elicit strong feelings — from sadness and anger to confusion and despair. Tonight, we are a city and country united by tragedy, but we are also determined — to deliver justice for Tyre and change for our nation.”

The White House held a joint emergency call Friday with the mayors of at least 16 cities before the video’s release “to brief them on federal preparations in support of state and local leaders.”

“Participating mayors shared their perspectives on how important it is to recognize the pain felt by communities across this country, be prepared in advance with a game plan to provide adequate community support, and to reinforce the importance of peace and calm during these difficult moments,” the White House said in a statement about the call, which included cities from New York City, to Atlanta, Los Angeles, D.C., Seattle and Portland.

The Los Angeles Police Department issued a statement condemning the actions of the Memphis officers and calling for demonstrations to remain peaceful.

“The accounts of the circumstances of this heinous crime and the criminal actions of those involved are reprehensible,” the LAPD said.

“The department will do all within its power to ensure the lawful expression of the public’s anger and frustration is protected and prepared to facilitate those wishing to exercise their First Amendment rights.”

The Los Angeles County Sheriff’s Department told local media that it is preparing for the possibility of disturbances after the footage is made public. and is coordinating with other state, local and federal agencies.

“Our patrol stations and specialized units remain in a state of readiness to respond to any disturbances that might occur,” the LASD said.

“The sheriff’s department supports the First Amendment and the people’s right to protest.”

Speaking with reporters as he prepared to depart for Camp David at the White House Friday evening, President Joe Biden said that he had spoken with Nichols’ mother prior to the video footage release for about 10 or 15 minutes.

“I spoke with Tyre’s mother and expressed my condolences and told her that I was going to be making the case to the Congress to pass the George Floyd Act. We should get this under control. I can only do so much on the executive order at the federal level,” Biden said. “I was really pleased that she called for peaceful protest, no violence,” he added.

When asked about the potential for violence Biden said:

“I’m obviously very concerned about it. But I think she has made a very strong plea. She’s obviously in enormous pain. I told her I had some idea of what that loss is like and although it is impossible to believe now, a time will come when his memory brings a smile before a tear.” 

The White House released a statement from the president that said in part:

“Like so many, I was outraged and deeply pained to see the horrific video of the beating that resulted in Tyre Nichols’ death. It is yet another painful reminder of the profound fear and trauma, the pain, and the exhaustion that Black and Brown Americans experience every single day. 
 
My heart goes out to Tyre Nichols’ family and to Americans in Memphis and across the country who are grieving this tremendously painful loss. The footage that was released this evening will leave people justifiably outraged. Those who seek justice should not to resort to violence or destruction. Violence is never acceptable; it is illegal and destructive. I join Mr. Nichols’ family in calling for peaceful protest.”

California Gov. Gavin Newsom issued a statement in response to the Memphis Police Department’s body camera footage being released, showing the deadly actions that took the life of Nichols, a Sacramento native, and led to the charging of five since fired Memphis law enforcement officers.

“Jennifer and I send our deepest condolences to the family and friends of Tyre Nichols. Tyre Nichols should be alive today. The video released shows abhorrent behavior and these officers must be held accountable for their deadly actions and clear abuse of power,” said Newsom. “Today, we are a country in mourning, and must continue our work nationwide to push reforms to prevent excessive use of force and save lives.”

“Tonight, we saw ferocious violence from an out-of-control herd,” said Los Angeles Mayor Karen Bass.

Late Friday evening Vice President Kamala Harris’ office released a statement from the vice president on Nichols:

“Tyre Nichols should have made it home to his family. Yet, once again, America mourns the life of a son and father brutally cut short at the hands of those sworn to protect and serve. The footage and images released tonight will forever be seared in our memories, and they open wounds that will never fully heal.
 
The persistent issue of police misconduct and use of excessive force in America must end now. 

I join President Biden in his call for accountability and transparency. We must build trust—not fear — within our communities.”

VIDEO COURTESY OF KTLA:

TYRE NICHOLS VIDEO VIEWER DISCRETION ADVISED, GRAPHIC CONTENT AND LANGUAGE WARNING.

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FBI reports ‘explosion’ of teen boys extorted after sending explicit photos, videos

Gay adults targeted on Grindr, other dating sites

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Law enforcement officials led by the FBI and the U.S. Homeland Security Investigations division are reporting an alarming increase in incidents of mostly teenage boys being tricked into sending explicit photos and videos of themselves to online scammers who then attempt to extort money from the young victims.

Spokespersons for the FBI, the Homeland Security Investigations (HSI), which is an arm of the U.S. Department of Homeland Security, and the Office of the U.S. Attorney for the Western District of Pennsylvania, where sextortion cases increased dramatically, have told the Washington Blade they so far are unaware of gay teenage boys being targeted for what authorities are calling financial sextortion.

“We have not seen that,” said Catherine Pollicicchio, a spokesperson for the FBI Field Office in Pittsburgh, when asked by the Blade if gay teens were being targeted. “But that doesn’t mean it is not happening. We may not know about it,” she said.

“Homeland Security Investigations has not observed any sextortion investigations that refer specifically to gay teenagers,” said Jason Koontz, a spokesperson for HSI Philadelphia offices.

A spokesperson for the FBI’s headquarters in Washington couldn’t immediately be reached to confirm whether FBI officials are aware of gay teenagers or gay young adults being targeted for sextortion in other parts of the country.

The D.C.-based LGBTQ youth advocacy group SMYAL is also unaware of any gay male teenagers in the D.C. area being targeted for sextortion, according SMYAL spokesperson Hancie Stokes.

But the popular app Grindr reports on its website that adult gay men using Grindr and other gay hookup apps have been targeted for sextortion in ways similar to how the straight teenage boys have been targeted.

The scammers are persuading the gay adult men to send who they believe is someone interested in a possible sexual hookup or a relationship nude or sexually explicit photos or videos of themselves. The scammer then uses the explicit images to blackmail the victim into sending large sums of money to prevent the scammer from releasing the photos or videos to the victim’s family, friends, or employer.  

In a Scam Awareness Guide posted on its website, Grindr says that unlike potential straight targets for sextortion, some of the scammers have threatened to out gay men, including bisexual men married to women, by sending their sexually explicit photos or videos to a spouse or other family members.

In yet another means of carrying out sextortion scams, according to Grindr, some of the scammers have set up a fake profile as an underage person. After tricking the victim into sending explicit images the scammer threatens to report the victim to police for soliciting sex with a minor unless a ransom is paid.

The FBI’s national office in Washington issued a “public safety alert” about the increasing number of sextortion cases targeting teenage males in a Dec. 19 press release.

“Over the past year, law enforcement has received over 7,000 reports related to the online financial sextortion of minors, resulting in at least 3,000 victims, primarily boys, and more than a dozen suicides,” the FBI press statement says.

“The FBI has seen a horrific increase in reports of financial sextortion schemes targeting minor boys—and the fact is that the many victims who are afraid to come forward are not even included in those numbers,” said FBI Director Christopher Wray in the FBI statement. “The FBI is here for victims, but we also need parents and caregivers to work with us to prevent this crime before it happens and help children come forward if it does,” Wray said.

“Victims may feel like there is no way out – it is up to all of us to reassure them that they are not in trouble, there is hope, and they are not alone,” Wray said.

The FBI statement says sextortion schemes occur most often through sites where young people interact with each other such as social media, gaming sites, or video chat applications.

“On these platforms, online predators often use fake female accounts and target minor males between 14 and 17 years old, but the FBI has interviewed victims as young as 10 years old,” according to the statement. “Through deception, predators convince the young person to produce an explicit video or photo,” it says.

“Once predators acquire the images, they threaten to release the compromising material unless the victim sends money or gift cards,” the FBI statement continues. “In many cases, however, predators release the images even if payments are made. The shame, fear, and confusion that victims feel when they are caught in this cycle often prevents them from asking for help or reporting the abuse,” the FBI statement says.

“A large percentage of these sextortion schemes originate outside of the United States and primarily in West African countries such as Nigeria and Ivory Coast,” according to the FBI statement.

Jane Clementi, co-founder and CEO of the Tyler Clementi Foundation, which advocates for programs to prevent bullying, including cyberbullying, targeting LGBTQ youth, said she and the Clementi Foundation, which is a nationwide group, were unaware of any specific gay youth or young adults being targeted for sextortion.

“The fact that this is on the rise is very disconcerting and means it needs to have more media coverage to inform youth and their parents about the harms and how to deal with the situation,” she told the Blade in an email. “My hope would be that we can prevent this situation from happening in the first place.” 

Jane Clementi, her husband, and other family members founded the Clementi Foundation in 2010 a short time after their son Tyler Clementi, an 18-year-old freshman student at New Jersey’s Rutgers University, took his own life after being victimized by cyber bullying.

Tyler’s suicide drew international attention when news surfaced that his college roommate secretly pointed his laptop computer camera at Tyler’s bed when he learned that Tyler had a date with another young man and the two planned to engage in intimacy in the dorm room. The roommate informed others that he would be broadcasting a live video of Tyler’s intimate interaction with his date over the internet and would be rebroadcasting it later, a development Tyler became humiliated and devastated over after he learned what had happened.

Jane Clementi said that type of cyberbullying and other forms of what she called revenge porn or nonconsensual porn, in which someone uses private images shared with them in confidence while in a relationship and then shares the photos or videos publicly after the relationship ends has been an issue of concern for many years.

Although it is not the same as financial sextortion, it often has the same harmful impact on victims, those familiar with the two types of scams have said.

“The best place to start is by raising awareness of the issue and by having healthy conversations starting at the youngest of ages, as soon as youth have a device that is connected to the internet,” Clementi said. “And next, parents and youth need to talk through a plan for the inevitable situation they might encounter online, like harassment, intimidation or worse sextortion.”

Grindr says on its website that it has protocols in place to detect and remove fake accounts set up by scammers. “While we detect and block a huge amount of these accounts that you will never see as a user, some still get through,” Grindr says on its website.  

Advice from the Grindr Scam Awareness Guide on how to avoid becoming a victim of sextortion and how best to respond if one is targeted for sextortion can be accessed at grindr.com.

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LGBTQ groups commemorate 50th anniversary of Roe v. Wade

Equality Florida staffers attended vice president’s speech in Fla.

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The U.S. Supreme Court on June 24, 2022, overturned the landmark Roe v. Wade decision that had been issued on Jan. 22, 1973. LGBTQ advocacy groups this week commemorated the 50th anniversary of the landmark decision. (Washington Blade photo by Michael Key)

The U.S. Supreme Court on Jan. 22, 1973, issued its Roe v. Wade ruling that ensured the constitutional right to an abortion for all American citizens. The Supreme Court last June overruled this landmark decision.

Fifty years later, LGBTQ activists are among those who have commemorated Roe, despite the fact the Supreme Court has overturned it. The decision, which has since caused tension between liberal and conservative groups, prompted federal and state lawmakers to act upon the sudden revocation of what many consider to be a fundamental right. 

Roe’s legal premise relied heavily upon the right to privacy that the 14th Amendment provided; however, legal experts argued that it was a vague interpretation of the amendment.

Vice President Kamala Harris on Sunday delivered remarks on Roe’s anniversary in Tallahassee, Fla., saying how most “Americans relied on the rights that Roe protected.” 

“The consequences of the Supreme Court’s ruling are not only limited to those who need reproductive care,” said Harris. “Other basic healthcare is at risk.”

The overruling of Roe put into question the security of other long-held precedents, such as Obergefell v. Hodges, the 2015 case that legalized same-sex marriages, and Loving v. Virginia, the 1967 decision that legalized interracial marriages, because they rely on the same right to privacy that upheld Roe.

In that same speech, Harris announced President Joe Biden would issue a presidential memorandum to direct all government departments to ensure access to abortion pills at pharmacies.

“Members of our Cabinet and our administration are now directed, as of the president’s order, to identify barriers to access to prescription medication and to recommend actions to make sure that doctors can legally prescribe, that pharmacies can dispense, and that women can secure safe and effective medication,” Harris affirmed. 

LGBTQ organizations and other human rights groups continue to work to protect reproductive rights.

Human Rights Campaign President Kelley Robinson said she found it intolerable that “an extremist set of judges” had taken away an important right not only for women, but also nonbinary people, trans men, and the entire LGBTQ+ community.

“Because we know that reproductive rights are LGBTQ+ rights, and that so many in our community rely on access to abortion care and other reproductive health services,” said Robinson in regards to Roe’s 50th anniversary. “The ripple effects of this decision will impact the most marginalized among us the most, and we cannot stand for that.”

“Overturning Roe v. Wade was the first time in history that the Supreme Court has taken away rights, and we know that they will not stop there,” added Robinson. “This is a dangerous turning point for our country, and we have to affirmatively defend against this assault.” 

Robinson said HRC is working with coalition partners to fight the roll-back of abortion rights at the state and federal level. 

Christian Fuscarino, executive director of Garden State Equality, a statewide LGBTQ rights group in New Jersey, said his organization is “laser-focused on ensuring that people with trans and nonbinary experiences are experiencing lived equality, which includes bodily autonomy.” 

Equality Florida showed its support of Roe by standing alongside Harris during her Tallahassee speech with several other lawmakers and activists. They also denounced Republican Gov. Ron DeSantis’ antiabortion policies, as well as the Florida legislature. 

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