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Newsom: Supreme Court defeat would trigger new ballot measure

Calif.’s lieutenant guv speaks out on Prop 8, Barney Frank and more

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Calif. Lt. Gov. Gavin Newsom by Michael Key Washington Blade
Calif. Lt. Gov. Gavin Newsom by Michael Key Washington Blade

On the same day the Supreme Court hard oral arguments in a case challenging his state’s gay marriage ban, California Lt. Gov. Gavin Newsom spoke at length about Prop 8, Barney Frank and more in an interview. (Washington Blade photo by Michael Key)

California Lt. Gov. and former San Francisco Mayor Gavin Newsom says a decision by the U.S. Supreme Court to uphold Proposition 8’s ban on same-sex marriage would prompt the California Legislature to place a pro-marriage equality referendum on the ballot in 2014.

In an exclusive interview with the Washington Blade on Tuesday, after attending the Supreme Court’s oral arguments on the Prop 8 case, Newsom said he is confident the court will strike down Prop 8. He said he’s hopeful but less confident that the high court will issue a broader decision legalizing same-sex marriage in all 50 states.

But Newsom predicted that a “worst case scenario” ruling upholding Prop 8 would trigger an immediate backlash in the LGBT community in California and among the state’s pro-marriage equality lawmakers. This would lead to placing a Prop 8 repeal measure on the ballot, most likely in the 2014 election cycle, he said.

“I don’t know if I want to use the word shock because that’s a little hyperbolic,” he said in describing the reaction to a decision leaving Prop 8 in place. “But that backlash would immediately precipitate a ballot measure that most likely in this case…the legislature would put that on the ballot,” he said.

“It would require two-thirds of the legislature. There is two-thirds of the legislature now that supports marriage equality,” he said.

“So you wouldn’t even have to get the signatures,” Newsom added. “And I think that would immediately happen. And we would put on a campaign to end all campaigns. And we would win quite handily in 2014.”

Newsom told the Blade he has no regrets over his highly controversial decision in 2004 to use his authority as San Francisco mayor to direct the city to begin issuing marriage licenses to same-sex couples before any court or state governmental body gave the go-ahead for such marriages.

In February 2004 Newsom himself performed the first of the city-authorized same-sex nuptials in a City Hall ceremony that drew national and international press coverage. The couple joined in marriage in that ceremony was longtime lesbian activists Phyllis Lion and Del Martin, who were in their 80s.

“[T]hat one couple, Phyllis Lyon and Del Martin, became 4,036 additional couples from 46 states,” Newsom said, noting that other same-sex couples came to San Francisco from eight countries to get married.

“And it wasn’t just the couples,” he said. “What was so profound about that in February 2004 were the mothers and fathers and the brothers and sisters and the grandparents and grandkids that all assembled there – tens of thousands of people celebrating life, celebrating love, celebrating marriage.”

Less than a year later, however, gay marriage opponents succeeded in obtaining a court ruling barring Newsom and San Francisco authorities from performing same-sex marriages. The ruling also declared all of the same-sex marriages performed by the city as invalid.

Critics of Newsom’s decision to authorize the marriages, including then-U.S. Rep. Barney Frank (D-Mass.), who’s gay, blamed Newsom for playing into the hands of anti-gay groups seeking to ban same-sex marriage through state constitutional amendments.

Close to a dozen such amendments passed through ballot measures that year, and some political pundits said the ballot measures helped Republican George W. Bush win the 2004 presidential election by drawing conservative voters to the polls in larger than usual numbers.

Newsom and LGBT activists who supported his decision to authorize the San Francisco marriages say the action boosted efforts to challenge California’s ban on same-sex marriage in the state courts. In early 2008, the California Supreme Court ruled that same-sex couples have a right to marry under the state’s constitution, opening the way for same-sex couples to marry throughout the state.

But voters overturned the court’s decision in November 2008 when they approved Proposition 8. Subsequent court challenges to Prop 8 resulted in it coming before the U.S. Supreme Court in Tuesday’s oral arguments.

Newsom said he was troubled by the criticism he received, especially criticism form Frank, who he says he deeply respects as an LGBT rights advocate.

“So I respectfully disagree with him,” Newsom told the Blade. “And I think there’s thousands and thousands of people who came to San Francisco who would respectfully disagree with him.”

According to Newsom, his and his city’s decision to permit same-sex marriages led to marriage equality advances in subsequent years.

“I think it required shaking things up a little bit because I think just waiting around for the courts…we could take 30 years, 40 years,” he said. “And I think in many ways what we did certainly inspired the California Supreme Court.”

 

Following is a transcript of Lt. Governor Gavin Newsom’s interview with the Washington Blade:

Washington Blade: What were your thoughts on how the arguments went on Tuesday as you observed them in the Supreme Court chambers?

Gavin Newsom:  It’s a humbling experience any time you listen to oral arguments at the Supreme Court because in most every instance history is being made. And to see this arc over the last nine, 10 years and to see the progress that’s been made, public opinion shifting and knowing what’s at stake for California and Californians but also for the country in its prospects on marriage equality, it was a pretty wonderful experience.

 

Blade: Did you have a sense of which direction the justices may go?

Newsom: We all come in with our preconceived biases. I’ve long felt that the narrow decision was most likely, although I confess that I got caught up in the spirit of the times in the last two months, hoping perhaps the issue and the arguments persuade a broader, national conversation.

That clearly didn’t happen in the courtroom at least. It certainly happened in the briefs, but not in the courtroom in terms of the oral arguments. So I left with that as a caveat of disappointment but realizing an hour or so later, reflecting on it, that it went as well as I could ever have hoped a few months ago.

And I feel stronger now that the likelihood of Prop 8 being struck down has grounded itself in the oral arguments either on standing, which everyone seemed to be coveting. It was interesting, the focus on that, or on the limited, narrow question of the Ninth Circuit.

 

Blade: Are you sensing the court may rule on the narrow issue of allowing same-sex marriages in California but not in other states?

Newsom: Yeah, I think it’s more likely than not. I want to be surprised and I desperately want to be wrong because I think this is a fundamental civil right. It’s a constitutional right. And it should be afforded every American, not just Californians. And so I really do hope I’m wrong. But based on the passing reference, ironically, from [Justice Antonin] Scalia – the notion of 50 states being impacted by this decision – I walked away feeling that’s less likely. Again, I hope I’m wrong.

 

Blade: Are you basing that also on what some of the more liberal and progressive justices were saying?

Newsom: Yeah. Even [Justice Sonia] Sotomayor’s own comments – I was sort of struck by that. I hope people were playing devil’s advocate, and that’s often the case with this court. So perhaps that was a reflection of that point of view or at least that kind of Socratic engagement with the attorneys.

But you know, this idea that you can let states decide the rights of a minority is preposterous to me. I mean, it just flies in the face of our history. If you submit the rights of a minority to the whims of the majority you’ll get what we’ve historically gotten. And that’s oppression of the minority rights. And I just don’t accept it.

 

Blade: You have been involved with this from the outset or at least since 2004. Could you say a little about what you were thinking when you shook up a lot of people by having San Francisco perform same-sex marriages at that time before any court declared they were legal? Weren’t you the first to perform one of those marriages for a lesbian couple at City Hall?

Newsom: I guess I was, certainly from an elective office. So there’s no doubt about that. You know, it’s interesting. We wanted to put a human face on it, period. And you know what? Frankly, that was the one thing – if there was anything that sat with me [on Tuesday] it was how little we talked about the human element here at the [U.S. Supreme] court. And I understand that. My father is a judge. This is a courtroom. There are legal briefs. But with the exception of [Justice Anthony] Kennedy, who brought up children into the courtroom, which I thought was significant and telling. I thought it was an important take away in terms of where Kennedy may be.

You know, what we did in 2004 was I didn’t want to listen to President Bush out there on the campaign trail supporting a constitutional amendment banning same-sex marriage…

But that one couple, Phyllis Lyon and Del Martin, became 4,036 additional couples from 46 states. It was truly nationalized. It was not a local issue in San Francisco – 46 states and eight countries – and it wasn’t just the couples. What was so profound about that in February 2004 were the mothers and fathers and the brothers and sisters and grandparents and grandkids that all assembled there — tens of thousands of people celebrating life, celebrating love, celebrating marriage.

And it deepened my connection to not only the issue but to the community and my passion for equal rights. And I was struck by how many of my fellow Democrats ran, didn’t walk, from the issue in 2004, 5, 6, 7, 8. And only until recently have we seen a cascade of leadership which is fabulous, from [New York Governor Andrew] Cuomo and [Maryland Governor Martin] O’Malley to the president himself and others elected who are showing courage now. And I’m humbled by that now. But I’m frustrated a bit that it took even this long because we were having a lot of private conversations, and they weren’t disclosing publicly. There’s nothing worse than politicians saying one thing privately and doing another thing publicly.

 

Blade: Are you saying they were saying they supported marriage equality privately but not publicly?

Newsom: Yeah – in most cases. And they were just worried about their political career. I get that. But you know what? I like the politicians that are worried about the people they claim to represent more than they do their own political future. That’s sort of my argument on this assault weapons discussion right now. It kind of gets me a little angry – that people are worried more about their own elections than the faces of those kids in Newtown.

 

Blade: Then Congressman Barney Frank was among those that said your decision to perform same-sex marriages as mayor of San Francisco led to the passage of the state ballot measures banning same-sex marriage and raised the threat of a constitutional amendment to ban gay marriage passing in Congress.

Newsom: You know, I’m not going to – he’s gone out of his way to say that over and over again. And I’ll continue to go out of my way to celebrate his leadership in terms of LGBT rights. I don’t even belong in the same room as he in terms of what he’s done for the community. So I respectfully disagree with him. And I think a lot of people do. And I think there’s thousands and thousands of couples who came to San Francisco who would respectfully disagree with him.

And I think it required shaking things up a little bit because I think just waiting around for the courts – one off here, one off here – we could take 30 years, 40 years. And I think in many ways what we did certainly inspired the California Supreme Court [to declare same-sex marriages legal]. So I would hope that Congressman Frank sees that. But he’s long expressed his condemnation of what I did and continues to do so for whatever reason.

 

Blade: On the other hand, Evan Wolfson, head of the same-sex marriage advocacy group Freedom to Marry, has said pushing for marriage equality, even if it leads to setbacks, changes the hearts and minds of the public and leads to advances in the long run.

Newsom: Yeah – and I’ve talked to – and this sounds preposterous – but I’ve had the privilege of talking to people overseas that said this had an impact on their decision-making in Europe and their leadership there when they saw the human face and they saw those images. So I’m with Evan. I’ve long admired Evan. And you’re not kidding. He was out there in the early ‘90s. So he’s one of my heroes and one of the heroes of the movement. But there are many. I just left Rob Reiner. He was a huge supporter of what we did in 2004 and, of course, sponsored so much of the good work that Ted Olsen just did and is doing and Boies and Chad Griffin. It’s just incredible. Our own city attorney, Dennis Herrera, he put together a great team — Theresa Stuart. There’s so many champions and heroes in the fight. And I respect Barney Frank, but he wasn’t in the courtroom today and a lot of folks were, and they deserved to be and I respect their advocacy.

 

Blade: Now that you’re in a statewide office as lieutenant governor, do you have a sense of what kind of repercussions there might be in California and the nation as a whole if the Supreme Court rules either for or against marriage equality?  What about the people of the eastern part of California, who seem to be so different politically than the people of San Francisco or L.A.?

Newsom: You’re not kidding. I’ll be out there tomorrow. I’ll be in the Modesto Central Valley area at 1 o’clock tomorrow. The old frame of California used to be north and south. And you just hit it on the head. It’s increasingly now coastal-inland-east-west.  The politics is radically different in the central part of the state.

I think most pundits, and they may, in hindsight, dismiss this assertion. But I’ll tell you that I can point to almost every pundit in California that said I could never get elected statewide in California because of my support of same-sex marriage. And we proved them wrong. Though candidly, I didn’t know they would be wrong. I thought it was questionable as well.

In some parts of our state they’re particularly conservative. So there will be repercussions, absolutely. But you now see – and I never read the polls in 2004 because if I did I never would have done what I did because it was partly unpopular even in San Francisco.

The polls today are two to one in favor of marriage equality in California – two to one in the recent polls. So I think the repercussions will be negligible at best.

Across the country, you know this. You write about this. You guys have been at this forever. This is not even Republican-Democrat any more. It’s generational and it’s overwhelming. You cannot deny the generational component. So these guys are holding on – the opponents – they’re just holding on. I don’t want to say this is the last gasp because I think some states will hold on for a much longer time unless the courts intervene.

But this is a tsunami, a generational tsunami that 80 percent of 30-year-olds or younger [support marriage equality]. This court – I hope they – they’re human beings. I wouldn’t want to be on the wrong side of history on this. If I’m a relatively young judge like [Chief Justice John] Roberts, why do you want to be on the wrong side of history when it comes to a civil right?

 

Blade: Will you be going to the DOMA case tomorrow?

Newsom: I wish I could. I’ve got to head back to my events in the Central Valley. But I feel confident. The good news about DOMA is it kind of hits these guys on both sides of the ideological aisle. From a federal perspective, this is federalism and states’ rights on the right. And then on the left we can make similar arguments that we made today. I feel a little more confident on DOMA, though I feel equally confident in both cases. Although, again, I think it’s going to be a narrow decision on Prop 8 and then a repeal of DOMA outright.

 

Blade: If Proposition 8 were to somehow go back to the voters are you optimistic that it wouldn’t pass and marriage equality would prevail?

Newsom: To be candid with you, the backlash would exist there. I think there would be an intense response if the [Supreme Court] overturned the Ninth Circuit [U.S. Court of Appeals in California that ruled against Prop 8]. I don’t know if I want to use the word shock because that’s a little hyperbolic. But that backlash would immediately precipitate a ballot [measure] that most likely in this case – and this is one of the interesting facts of California right now – I think the legislature would put that on the ballot. It would require two-thirds of the legislature. There is two-thirds of the legislature now that supports marriage equality. So you wouldn’t even have to get signatures. And I think that would immediately happen.

And we would put on a campaign to end all campaigns. And we would win quite handily in 2014. So eventually even in the worst case scenario we would win at the ballot box, I believe. But the impact of that, I think, would be intensely felt across the country.

And I think, frankly, if I were opposed to marriage equality I’d be more worried about that because I think the backlash would inspire, with intensity, aggressive movements to overturn not just Prop 8 in California but all across the country in those 31 constitutional restricted states, etc.

 

Blade: Marriage equality advocate Robin Tyler of L.A. told us this week that she feels Prop 8 helped the LGBT cause and marriage equality because it energized and activated the LGBT community like never before and helped bring on the recent successes in passing same-sex marriage laws in several states. Do you agree with that assessment?

Newsom: I agree with that generally. I’ll never forget. I was so intimately involved in that. My image was used against our campaign or against our efforts. And whether we like it or not, it was a painful thing. The backdrop was we were celebrating Obama’s win at the same time we were lamenting Prop 8’s victory.

And people were stunned in many ways. We saw it coming in the last two weeks of the campaign when the polls started to shift. So some of us on the inside weren’t as surprised. But I think the general consensus was one of shock. And it really did galvanize people to say, you know what? If California can legally grant same-sex marriage and in California see them take it away, my gosh, we’ve got to wake up every state and get organized with great intensity. So I think she’s right.

I think you saw a lot of great work done across the country that built up the momentum in New York and Maryland and got us where we were in Maine and Washington State and, of course, all the other legislative victories on civil unions. But you’re right, it was painful. And guys like Congressman Frank could say, ‘Look, I told you so’ after the blowback with all those state constitutional amendments. But that’s the nature of the right struggle, good days and bad days.

And now we’re leaning into history in a very positive way and I hope and like to think it’s much faster than it would have been if we just sat back passively and waited our time and got permission. Some people argue we all need permission. David Boies also needed permission to do what they did. And I’m glad they didn’t wait. I’m glad they did what they did. And I’m glad we did what we did. So good people can disagree and history will judge.

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Federal Government

RFK Jr.’s HHS report pushes therapy, not medical interventions, for trans youth

‘Discredited junk science’ — GLAAD

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HHS Secretary Robert F. Kennedy Jr. (Washington Blade photo by Michael Key)

A 409-page report released Thursday by the U.S. Department of Health and Human Services challenges the ethics of medical interventions for youth experiencing gender dysphoria, the treatments that are often collectively called gender-affirming care, instead advocating for psychotherapy alone.

The document comes in response to President Donald Trump’s executive order barring the federal government from supporting gender transitions for anyone younger than 19.

“Our duty is to protect our nation’s children — not expose them to unproven and irreversible medical interventions,” National Institutes of Health Director Dr. Jay Bhattacharya said in a statement. “We must follow the gold standard of science, not activist agendas.”

While the report does not constitute clinical guidance, its findings nevertheless conflict with not just the recommendations of LGBTQ advocacy groups but also those issued by organizations with relevant expertise in science and medicine.

The American Medical Association, for instance, notes that “empirical evidence has demonstrated that trans and non-binary gender identities are normal variations of human identity and expression.”

Gender-affirming care for transgender youth under standards widely used in the U.S. includes supportive talk therapy along with — in some but not all cases — puberty blockers or hormone treatment.

“The suggestion that someone’s authentic self and who they are can be ‘changed’ is discredited junk science,” GLAAD President and CEO Sarah Kate Ellis said in a statement. “This so-called guidance is grossly misleading and in direct contrast to the recommendation of every leading health authority in the world. This report amounts to nothing more than forcing the same discredited idea of conversion therapy that ripped families apart and harmed gay, lesbian, and bisexual young people for decades.”

GLAAD further notes that the “government has not released the names of those involved in consulting or authoring this report.”

Janelle Perez, executive director of LPAC, said, “For decades, every major medical association–including the American Medical Association and the American Academy of Pediatrics–have affirmed that medical care is the only safe and effective treatment for transgender youth experiencing gender dysphoria.

“This report is simply promoting conversion therapy by a different name – and the American people know better. We know that conversion therapy isn’t actually therapy – it isolates and harms kids, scapegoats parents, and divides families through blame and rejection. These tactics have been used against gay kids for decades, and now the same people want to use them against transgender youth and their families.

“The end result here will be a devastating denial of essential health care for transgender youth, replaced by a dangerous practice that every major U.S. medical and mental health association agree promotes anxiety, depression, and increased risk of suicidal thoughts and attempts.

“Like being gay or lesbian, being transgender is not a choice, and no amount of pressure can force someone to change who they are. We also know that 98% of people who receive transition-related health care continue to receive that health care throughout their lifetime. Trans health care is health care.”

“Today’s report seeks to erase decades of research and learning, replacing it with propaganda. The claims in today’s report would rip health care away from kids and take decision-making out of the hands of parents,” said Shannon Minter, legal director of NCLR. “It promotes the same kind of conversion therapy long used to shame LGBTQ+ people into hating themselves for being unable to change something they can’t change.”

“Like being gay or lesbian, being transgender is not a choice—it’s rooted in biology and genetics,” Minter said. “No amount or talk or pressure will change that.” 

Human Rights Campaign Chief of Staff Jay Brown released a statement: “Trans people are who we are. We’re born this way. And we deserve to live our best lives and have a fair shot and equal opportunity at living a good life.

“This report misrepresents the science that has led all mainstream American medical and mental health professionals to declare healthcare for transgender youth to be best practice and instead follows a script predetermined not by experts but by Sec. Kennedy and anti-equality politicians.”




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The White House

Trump nominates Mike Waltz to become next UN ambassador

Former Fla. congressman had been national security advisor

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U.N. headquarters in New York (Washington Blade photo by Michael K. Lavers)

President Donald Trump on Thursday announced he will nominate Mike Waltz to become the next U.S. ambassador to the U.N.

Waltz, a former Florida congressman, had been the national security advisor.

Trump announced the nomination amid reports that Waltz and his deputy, Alex Wong, were going to leave the administration after Waltz in March added a journalist to a Signal chat in which he, Defense Secretary Pete Hegseth, and other officials discussed plans to attack Houthi rebels in Yemen.

“I am pleased to announce that I will be nominating Mike Waltz to be the next United States ambassador to the United Nations,” said Trump in a Truth Social post that announced Waltz’s nomination. “From his time in uniform on the battlefield, in Congress and, as my National Security Advisor, Mike Waltz has worked hard to put our nation’s Interests first. I know he will do the same in his new role.”

Trump said Secretary of State Marco Rubio will serve as interim national security advisor, “while continuing his strong leadership at the State Department.”

“Together, we will continue to fight tirelessly to make America, and the world, safe again,” said Trump.

Trump shortly after his election nominated U.S. Rep. Elise Stefanik (R-N.Y.) to become the next U.S. ambassador to the U.N. Trump in March withdrew her nomination in order to ensure Republicans maintained their narrow majority in the U.S. House of Representatives.

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U.S. Federal Courts

Second federal lawsuit filed against White House passport policy

Two of seven plaintiffs live in Md.

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Lambda Legal on April 25 filed a federal lawsuit on behalf of seven transgender and nonbinary people who are challenging the Trump-Vance administration’s passport policy.

The lawsuit, which Lambda Legal filed in U.S. District Court for the District of Maryland in Baltimore, alleges the policy that bans the State Department from issuing passports with “X” gender markers “has caused and is causing grave and immediate harm to transgender people like plaintiffs, in violation of their constitutional rights to equal protection.”

Two of the seven plaintiffs — Jill Tran and Peter Poe — live in Maryland. The State Department, Secretary of State Marco Rubio, and the federal government are defendants.

“The discriminatory passport policy exposes transgender U.S. citizens to harassment, abuse, and discrimination, in some cases endangering them abroad or preventing them from traveling, by forcing them to use identification documents that share private information against their wishes,” said Lambda Legal in a press release.

Zander Schlacter, a New York-based textile artist and designer, is the lead plaintiff.

The lawsuit notes he legally changed his name and gender in New York.

Schlacter less than a week before President Donald Trump’s inauguration “sent an expedited application to update his legal name on his passport, using form DS-5504.”

Trump once he took office signed an executive order that banned the State Department from issuing passports with “X” gender markers. The lawsuit notes Schlacter received his new passport in February.

“The passport has his correct legal name, but now has an incorrect sex marker of ‘F’ or ‘female,'” notes the lawsuit. “Mr. Schlacter also received a letter from the State Department notifying him that ‘the date of birth, place of birth, name, or sex was corrected on your passport application,’ with ‘sex’ circled in red. The stated reason was ‘to correct your information to show your biological sex at birth.'”

“I, like many transgender people, experience fear of harassment or violence when moving through public spaces, especially where a photo ID is required,” said Schlacter in the press release that announced the lawsuit. “My safety is further at risk because of my inaccurate passport. I am unwilling to subject myself and my family to the threat of harassment and discrimination at the hands of border officials or anyone who views my passport.”

Former Secretary of State Antony Blinken in June 2021 announced the State Department would begin to issue gender-neutral passports and documents for American citizens who were born overseas.

Dana Zzyym, an intersex U.S. Navy veteran who identifies as nonbinary, in 2015 filed a federal lawsuit against the State Department after it denied their application for a passport with an “X” gender marker. Zzyym in October 2021 received the first gender-neutral American passport.

Lambda Legal represented Zzyym.

The State Department policy took effect on April 11, 2022.

Trump signed his executive order shortly after he took office in January. Germany, Denmark, Finland, and the Netherlands are among the countries that have issued travel advisories for trans and nonbinary people who plan to visit the U.S.

A federal judge in Boston earlier this month issued a preliminary injunction against the executive order.  The American Civil Liberties Union filed the lawsuit on behalf of seven trans and nonbinary people.

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