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HISTORIC: Supreme Court hears arguments on DOMA

Issues of standing, discrimination against gays dominate hearing

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Supreme Court, gay news, Washington Blade
gay marriage, same sex marriage, marriage equality, Roberta Kaplan, Defense of Marriage Act, Supreme Court, gay news, Washington Blade

Attorney Roberta Kaplan said DOMA violates equal protection rights under the U.S. Constitution for not just Windsor, but all married gay couples. (Washington Blade photo by Michael Key)

Questioning at the Supreme Court during oral arguments on Wednesday was just as intense as the previous day as justices grilled attorneys on standing and federalism issues related to the Defense of Marriage Act.

The prospects of the court striking down the 1996 law seem strong as no justices expressed any particular love for DOMA, but it’s possible the court may not reach consideration of the constitutionality of the law because of standing and jurisdiction issues.

Associate Justice Ruth Bader Ginsburg, a Clinton appointee, expressed concern over DOMA because benefits ā€” including Social Security survivor benefits and access to family medical leave ā€” and withheld from married same-sex couples under the law.

Under DOMA, Ginsburg said one might ask the question “What kind of marriage is this?” and compared the law to a statute that creates “full marriage, and then this sort of skim milk marriage.”

Associate Justice Anthony Kennedy, a Reagan appointee who’s considered a swing vote in the case, made a lot of inquiries on DOMA, but at one point may have tipped his hand when he talked about the “real risk” of encroaching on state power to define marriage.

At issue in the case is Section 3 of DOMA, which prohibits federal recognition of same-sex marriage. As a result of that 1996 law, Edith Windsor had to pay $363,000 in estate taxes in 2009 upon the death of her spouse, Thea Spyer.

The courtroom was just as packed for the DOMA arguments as it was for the Prop 8 arguments. Among those in attendance were Human Rights Campaign President Chad Griffin, Senior Adviser to President Obama Valerie Jarrett and House Minority Leader Nancy Pelosi (D-Calif.).

Roberta Kaplan, a New York-based private attorney working in coordination with the American Civil Liberties Union, said DOMA violates equal protection rights under the U.S. Constitution for not just Windsor, but all married gay couples.

“Because of DOMA, many thousands of people who are legally married under the laws of nine sovereign states and the District of Columbia are being treated as unmarried by the federal government solely because they are gay,” Kaplan said.

Arguing on behalf of DOMA was Paul Clement, a former U.S. solicitor general under President George W. Bush who was hired by House Republicans to defend the law after the Obama administration declined to do so in February 2011.

Clement said DOMA helps create uniformity for the federal government as the democratic process is underway deciding the issue of marriage.

“I do think for purposes of the federalism issue, it really matters that all DOMA does is take this term where it appears in federal law and define it for purposes of federal law,” he said. “It would obviously be a radically different case if Congress had, in 1996, decided to try to stop states from defining marriage in a particular way or dictate how they would decide it in that way.”

At one point, Associate Justice Elena Kagan brought up the House report from the passage of DOMA, quoting where it said Congress approved the law to “express moral disapproval of homosexuality.”

Clement responded by saying legislators having an “improper motive” shouldn’t be enough for the Supreme Court to overturn DOMA.

“And if that’s enough to invalidate the statute, then you should invalidate the statute,” Clement said. “But that has never been your approach, especially under rational basis or even rational basis-plus, if that is what you are suggesting.”

U.S. Solicitor General Donald Verrilli, who’s taken up litigation against DOMA on behalf of the Obama administration, also argued against DOMA on the basis of equal protection.

“What Section 3 does is exclude from an array of federal benefits lawfully married couples,” Verrilli said. “That means that the spouse of a soldier killed in the line of duty cannot receive the dignity and solace of an official notification of next of kin.”

Further, he said DOMA should be subject to heightened scrutiny, or a greater assumption it’s unconstitutional, because of the “terrible discrimination” faced by gay people throughout history.

Verrilli also disputed Clement’s argument that DOMA helps ensure uniformity for the U.S. government, saying “if anything, it makes federal administration more difficult.”

Standing was so much of an issue as part of the DOMA case that justices allotted extended time and the first half of the oral arguments to consider the issue.

There are two questions: whether House Republican-led Bipartisan Legal Advisory Group has standing to defend DOMA in court, and whether the Supreme Court has jurisdiction to hear the case because the U.S. government appealed even though it got what it wanted when the district ruled against the anti-gay law.

Vicki Jackson, a Harvard law professor hired by the court to answer these questions, made her case for why BLAG doesn’t have standing and the court doesn’t have jurisdiction to decide the issue.

Jackson said the U.S. government lacks standing to appeal because it has not asked the court to overturn lower courts’ decisions, it has asked to affirm them.

“The government has not asked this court to overturn the rulings below so it doesn’t have to pay the $365,000,” Jackson said. “It has asked this court to affirm. And the case or controversy requirement that we’re talking about are nested in an adversarial system where we rely on the parties to state their injuries and make their claims for relief.”

She also expressed doubts about BLAG’s standing, saying separation of powers “will not be meaningful” if Congress stays out of defense of a statute unless it thinks the executive branch is doing its job badly.

Clement maintained BLAG has standing because the House has an interest in preserving a law if the executive branch determines it won’t defend the measure in court.

“The House’s single most important prerogative, which is to pass legislation and have that legislation, if it’s going to be repealed, only be repealed through a process where the House gets to fully participate,” Clement said.

Associate Justice Sonia Sotomayor, an Obama appointee, expressed skepticism that BLAG has standing to defend DOMA in court.

“But the appointment of BLAG is strange to me because it’s not in the statute, it’s in the House rules,” Sotomayor said.

Deputy Solicitor General Sri Srinavasan argued the court has jurisdiction to defend DOMA, pointing to court precedent created under INS v. Chadha, an immigration-related case that came before the court in 1982. Srinavasan also said the U.S. government still suffers aggreivement, which allows it to appeal the case.

Associate Justice Antonin Scalia expressed displeasure with the Justice Department’s decision to stop defending the law and creating a situation where it’s appealing a case that was decided in its favor.

“I’m wondering if we’re living in this new world where the attorney general can simply decide, yeah, it’s unconstitutional, but it’s not so unconstitutional that I’m not willing to enforce it, if we’re in this new world, I don’t want these cases like this to come before this court all the time,” Scalia said.

It’s difficult to say if the court will rule on the basis of standing because justices challenged the views on whichever attorney was speaking ā€” whether they arguing in favor of standing or not. A ruling on this basis would likely more limited on its impact on gay couples as opposed to a nationwide ruling striking down DOMA.

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Oklahoma

Medical examine releases final autopsy on Nex Benedict’s death

Okla. high school student died by suicide in February

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Nex Benedict (Family photo)

The Oklahoma Medical Examiner’s Office released the full report Wednesday on the results of its investigation into the death of Nex Benedict, a 16-year-old transgender teen whose death has become a hot button topic in ongoing national discourse over transphobic and homophobic bullying in public school settings.

Earlier this month the medical examiner’s office released the first page of the report stating that Benedictā€™s death was caused by an overdose of Benadryl and Prozac, and ruled the death a suicide.

Owasso Police Department Lt. Nick Boatman said in a statement to the media at the time of the release of the initial finding: ā€œFrom the beginning of this investigation, Owasso Police observed many indications that this death was the result of suicide. However, investigators did not wish to confirm that information without the final results being presented by the Oklahoma Medical Examiners Office.ā€

The Owasso Police Department released body cam footage from the interview conducted by the Owasso High School resource officer taken at the emergency room, investigating the attack on Benedict by three other female juveniles earlier that day in a school bathroom.

Tulsa County District Attorney Steve Kunzweiler released a statement last week that said no criminal charges will be filed in the death of the 16-year-old Owasso High School trans student.

In part the district attorney said because the finding by the Oklahoma State Medical Examiner precluded the possibility that the death was caused directly from the physical altercation at the school the day prior to the teen’s dying.

According to the district attorney, Benedict had written notes talking about suicide but did not reference the fight or incidents at school. Kunzweiler stated that the notes are personal to Benedictā€™s family and will not be released.

16-year-old trans teen Nex Benedict being recorded on Owasso Police Department body cam footage at the emergency room after he was attacked in a bathroom at Owasso High School speaking with the Owasso High School resource officer.

The report also detailed injuries sustained in the fight from the day before, including several small cuts and bruises on their face and body. Benedict also had a 4×3 inch bruise on his chest from resuscitation efforts. The medical examiner also found yellowing bruises on Benedict’s arms, legs and torso that were healing before the time of the fight. The medical examiner’s office also found evidence of self-inflicted wounds on the arm.

Several Oklahoma-based LGBTQ organizations responded to the release of the full autopsy report along with national LGBTQ advocacy groups GLAAD, the Human Rights Campaign and the Rainbow Youth Project.

ā€œAs our community continues to grieve and remember Nex, itā€™s clearer than ever that everyone from Oklahomaā€™s State Superintendent of Public Instruction Ryan Walters to Owasso High School staff members to the Owasso Police Department, Tulsa District Attorney, and unaccredited-since-2009 state medical examinerā€™s office failed to deliver justice for Nex Benedict and Nexā€™s loved ones,” said Nicole McAfree, executive director of Freedom Oklahoma.

“A harm doubled by the continued lack of respect for the tribal law enforcement who should be involved in a case that involves the death of an Indigenous person on reservation land. As we approach the end of the Oklahoma legislative session, lawmakers should take the opportunity to send a message of adamant opposition to anti-2SLGBTQ+ legislation and policies; and support for measures that enable more empathy, kindness and compassion, not less. Nex should be alive, and the very least we can do in Nexā€™s memory is demonstrate our commitment to building a better world that makes it impossible for this heartbreaking tragedy to happen again,ā€ McAfree added.

Oklahoma Pride Alliance President Kylan L. Durant said; ā€œTodayā€™s news is the latest disappointing development in Nex Benedictā€™s tragic story. The best way to honor Nexā€™s memory now is by taking tangible steps to secure meaningful policies and platforms that make life better for all LGBTQ and 2STGNC+ youth. All Oklahomans deserve to live in a world that treats us with full dignity and respect, and where we can access spaces that allow us to live as our honest, authentic selves. We will never stop advocating for equality and justice in honor of Nex and too many others who left us too soon.ā€

The Rainbow Youth Project reported an uptick in crisis calls from Oklahoma since Benedictā€™s death:

  • 1,097 calls from Oklahoma in February.
  • 824 calls from Oklahoma in March so far.
  • Note that the average for the state is 357 per month.
  • Oklahoma youth reaching out to Rainbow Youth Project reported experiencing anti-LGBTQ bullying and specifically called out Walters:
    • 82 percent reported bullying.
    • 62 percent cited anti-LGBTQ rhetoric from Walters.

More than 350 organizations signed a letter one month agoĀ calling for the Walters’ removal following his long history of leadership failures and anti-LGBTQ rhetoric.

ā€œSince Nexā€™s death, the crisis lines at the Rainbow Youth Project continue to increase in calls and outreach from young people who feel discouraged and hopeless. Itā€™s incumbent upon all of us to secure safety and well-being for young people, especially those who are most at risk of being bullied and singled out,” said Christopher Sederburg, leader of the Rainbow Youth Project’s Transgender Action Committee. “Itā€™s hard enough to be a young person in the world today without worrying about doing something as simple as attending school safely. Nexā€™s death is a tremendous loss and we must do everything in our power to prevent similar tragedies from taking place in the future. Oklahoma State Superintendent Ryan Walters and the Oklahoma Department of Education must enact change and do right by all students.ā€

GLAAD President Sarah Kate Ellis in a statement released after the report was made public said:

“This report cannot be seen as a conclusion of the investigation into the death of a teenager who should still be here today. Oklahoma’s supposed leaders must still provide answers to the public about the state-sponsored bullying by legislation, the inadequate response to violence in a school bathroom, and all the failures to keep Nex safe that continue to endanger LGBTQ and 2STGNC+ people in Oklahoma. GLAAD continues to call for an independent investigation to resolve the systemic failures that led to Nexā€™s death. Our hearts remain with Nexā€™s family, with Oklahomaā€™s incredible 2STGNC+ and equality advocates and all LGBTQ youth who deserve to grow up in peace and safety.ā€

Kelley Robinson, president of the Human Rights Campaign, released the following statement: 

ā€œThe full report does little to fill in the gaps in information about that day or the more than a year of bullying and harassment that led up to it. It does not answer the questions of so many in Oklahoma and across the country. We continue to support the calls from Nexā€™s family for an independent investigation.

Young people in Oklahoma and across the country deserve to be safe and respected in school. This includes young people who may dress differently, speak differently, or identify differently from you. Whatā€™s clear from Nexā€™s death, and from what weā€™ve heard from so many students and parents in Owasso and across the state, is that this is not the case. Instead, we have seen the very adults who should be working to protect Oklahomaā€™s kids actively foster the hostile environment that makes students unsafe.

The release of todayā€™s report does not change the fact that LGTBQ+ students in Oklahoma are not safe at school. And it does not change our continued calls for justice and accountability.  We reiterate our call for a full and complete investigation into the district, state Supt. Ryan Walters, the Oklahoma State Department of Education and into their response after Nex was attacked.ā€

On March 1, the U.S. Department of Education informed Robinson that the department will open an investigation in response to HRCā€™s letter regarding Owasso Public Schools and its failure to respond appropriately to sex-based harassment that may have contributed to the tragic death of Benedict.

This investigation was triggered by a formal complaint made last week by Robinson, who wrote to U.S. Secretary of Education Miguel Cardona and asked his department to use the enforcement mechanisms at its disposal to prevent similar tragedies from taking place in the future and to help hold accountable those responsible for Benedictā€™s tragic death.

Rainbow Youth Project USA Executive Director Lance Preston echoed his fellow non-profit CEOs at GLAAD and HRC, telling the Washington Blade:

“In a unified effort with Human Rights Campaign and GLAAD, Rainbow Youth Project USA is calling for an independent autopsy to ensure a thorough investigation into the circumstances surrounding the youth’s death. 

Rainbow Youth Project USA, demands that educational institutions in Oklahoma and across the country take immediate action to address the pervasive issue of bullying and harassment faced by LGBTQ+ students. 

Statistics reveal that 58 percent of LGBTQ+ youth in Oklahoma feel unsafe at school, painting a grim picture of the challenges these individuals face on a daily basis. “Schools must be safe and inclusive environments for all students, regardless of their sexual orientation or gender identity. It is unacceptable that a significant number of LGBTQ+ students are experiencing bullying and harassment.”

Rainbow Youth Project USA, based on recent data, received 1,097 crisis calls from Oklahoma in February alone. Nearly 86 percent of these callers reported instances of being bullied within the state’s schools, highlighting the urgent need for improved support and protection for LGBTQ youth. 

In a conversation with the Blade on Wednesday, investigative journalist T.J. Payne reflected on the report:

“I canā€™t help but feel a sickness around all of it. As a trans person, reading a trans childā€™s autopsy is really fucked. Referring to their various insides as normal, intact, not usual. If only we described trans people the same way externally. Just like everybody else in the world trying to survive.”

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Federal Government

National Security Council meets with Ugandan LGBTQ activist

Frank Mugisha met with the NSC on Monday

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Frank Mugisha, Gay News, Washington Blade
Sexual Minorities Uganda Executive Director Frank Mugisha (Washington Blade photo by Michael K. Lavers)

The U.S. National Security Council met with Ugandan LGBTQ rights activist Frank Mugisha on Monday, according to a spokesperson who reaffirmed America’s opposition to civil rights abuses against LGBTQ people in the East African country.

Last year, Uganda passed the Anti-Homosexuality Act, a law that criminalizes, with prison sentences, identifying as gay or lesbian and imposes the death penalty for “aggravated homosexuality.”

The Biden-Harris administration has repeatedly denounced the legislation and called for its repeal.

“There have been increased reports of evictions, vigilante attacks, and police harassment, abuse, and detainment of individuals who are or are perceived to be LGBTQI+, including reports of the Ugandan police subjecting individuals to forced anal examinations ā€“ an abusive, degrading practice that serves no investigative or public health purpose,” the White House wrote in a December 2023 fact sheet.

In a post on X about the meeting with Mugisha, Adrienne Watson, special assistant to the president and National Security Council senior director for press and spokesperson, wrote that the “United States continues to have zero tolerance for any form of discrimination or harmful activities.”

Mugisha, who is gay, is one of the most prominent LGBTQ advocates in Uganda, winning the Robert F. Kennedy Human Rights Award and Thorolf Rafto Memorial Prize for his work in 2011. He was nominated for a Nobel Peace Prize in 2014.

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District of Columbia

D.C. events to commemorate International Transgender Day of Visibility

Monica Beverly-Hillz to attend Blossom Gala at Hook Hall

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(Washington Blade file photo by Michael K. Lavers)

Trans USA National Pageantry and the National Center for Transgender Equality will hold a series of events in D.C. on Sunday in commemoration of the International Transgender Day of Visibility.

The TRANSform the Vote rally will take place on the National Mall.

Organized by the Queer Equity Institute and NCTE, the event aims to celebrate trans liberation, combat violence and promote civic engagement. Elected officials, activists and artists are expected to participate. 

Queer Equity Institute Executive Director Leigh Finke and NCTE Executive Director Rodrigo Heng-Lehtinen discussed the rally and how it will empower the trans community and promote advocacy.

ā€œFrom restricting access to medically necessary healthcare to denying trans students the opportunity to participate in sports, we have seen nationwide efforts to exclude trans people from society,ā€ said Heng-Lehtinen. ā€œTRANSform the Vote presents a historical moment for us to empower our community ā€” casting our votes and participating in democracy is just one of many ways our community can advocate for the issues that matter to us.ā€

Finke, Minnesotaā€™s first openly trans lawmaker who wrote the stateā€™s groundbreaking trans refuge bill, echoed Heng-Lehtinen.

“Over the past few years, weā€™ve watched again and again as ‘jokes’ became hate speech, hate speech became bills, bills became laws; and all the jokes, hate speech and laws created an environment where transgender people are assaulted, beaten and murdered,” said Finke. “Some of the most important tools we have to fight back against these attacks is to change the culture through voting, running for office and creating art and music that shift society. This rally is meant to highlight and encourage folks to use those tools in their communities.”

Confirmed speakers and participants aside from Finke and Heng-Lehtinen include:

  • Minnesota state Rep. Alicia ā€œLiishā€ Kozlowski, who is one of the countryā€™s foremost activists for Indigenous trans and two-spirit people.
  • Minneapolis City Council President Andrea Jenkins.
  • Angelica Ross, a Buddhist artist and human rights activist.
  • Visual artist Cassils

The first annual Blossom Gala will take place at Hook Hall (3400 Georgia Ave., N.W.) and will feature keynote speakers, a Q&A panel discussion featuring national leaders in the trans rights movement and drag performances. Cherry Bomb, which will cap off the event, is an all-trans drag showcase.

Mr. Trans USA 2020 Eddie Broadway; Miss Trans USA 2020 Bianca Nicole and Candi Stratton, a world-renowned Cher illusionist, are among those who are expected to perform. Other participants will include Miss Trans USA 2023 Anya Marino, Mr. Trans USA 2023 Trey C. Michaels and NCTE National Organizer Sybastian Smith.  

Monica Beverly-Hillz from “RuPaul’s Drag Race” will also participate.

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