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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 — including Social Security survivor benefits and access to family medical leave — 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 — 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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1 Comment

1 Comment

  1. Robben Wainer

    March 30, 2013 at 12:41 am

    DOMA is fightng for a form of oppression. It is irrational and unfair not to include gay married couples in a state that is gaurded by equality. To not be granted benefits as a result of a life long commitment not being the right kind, is biased and causes the suffrage of innocent citizens.

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Minnesota

Minnesota middle school principal ousted for displaying Pride flag

Critics ramped up attacks on the career educator- some compared her to the Devil after publicly associating with LGBTQ+ people and students

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Screenshot via Marshall Public Schools, YouTube Channel

MARSHALL, Mn. — A former middle school principal in Minnesota who lost her job after displaying a Pride flag alleges in a federal lawsuit that the school system retaliated against her for supporting LGBTQ+ students.

Mary Kay Thomas filed the complaint against Marshall Public Schools in the U.S. District Court of Minnesota Tuesday after anti-LGBTQ+ middle school staff, parents, students and local clergy began efforts to remove the Pride flag that she put up in her middle school’s cafeteria in 2020 as a part of an inclusiveness effort.

According to the lawsuit, Thomas has been a teacher and principal for more than three decades with a long track record of success. She held the principal position at Marshall Middle School for 15 years, receiving contract renewals, pay raises and praise for her performance.

“But when Thomas decided to display an LGBTQ Pride Flag in the school cafeteria in early 2020, everything changed,” reads the complaint. 

Thomas refused to take down the Pride flag as critics ramped up attacks on the career educator. The lawsuit alleges that some even compared her to the Devil after publicly associating with LGBTQ+ people and students. 

“Sadly, the Marshall School District has sided with these critics,” her lawyers wrote. 

What followed was an “escalating series of adverse actions” taken by the Marshall School District, said the lawsuit. She claims that the school targeted her by threatening her employment, conducting a “bad-faith” investigation, putting her on indefinite involuntary leave, suspending her without pay and putting a notice of deficiency in her personnel file. 

The complaint says that the deficiencies were “false, distorted, and/or related to Thomas’s association with members of the LGBTQ community.”

Thomas also claims that the District attempted to get her to quit by removing her as principal and assigning her to a “demeaning ‘special projects’ position.”

At one point, Marshall Public Schools Superintendent Jeremy Williams, who is named as a defendant in the case, told Thomas he could “make this all go away” if she stepped down, according to the complaint. 

The school removed the Pride flag in August 2021 after settling a lawsuit brought by residents who opposed it. 

The Blade reached out to Williams for comment but did not receive a response. However, according to the Marshall Independent, Williams did release a statement on the matter. 

“Marshall Public Schools is committed to the education of every child and has strong policies and practices in place against discrimination, against both students and staff members. The school district is committed to creating a respectful, inclusive, and safe learning and working environment for students, staff and our families,” Williams said. “While the school cannot comment about the specific allegations made in the complaint, the school district strongly denies any allegation of discriminatory conduct. The school will vigorously defend itself against these allegations.”

In addition, Thomas alleges that she resisted unwanted sexual advancements from school board member Bill Swope. She claims she told Williams about the sexual harassment.

As of Thursday, the school has not filed a response, and no hearing has been scheduled yet. 

Thomas is seeking a jury trial, damages and reinstatement as principal of Marshall Middle School.

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National

Matthew Shepard honored at National Cathedral

Daylong services held to mark his 45th birthday

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Matthew Shepard, gay news, Washington Blade
Matthew Shepard Thanksgiving and Celebration at the National Cathedral in 2018. (Blade file photo by Michael Key)

The parents of gay University of Wyoming student Matthew Shepard, who was murdered in a 1998 hate crime that drew international attention to anti-LGBTQ violence, were among those attending a day of religious services commemorating Shepard’s 45th birthday on Wednesday at the Washington National Cathedral.

The services, which the Cathedral organized in partnership with the Matthew Shepard Foundation, included tributes to Shepard at the Cathedral’s St. Joseph’s Chapel, where his remains were interred in a ceremony in 2018.  

“Matthew Shepard’s death is an enduring tragedy affecting all people and should serve as an ongoing call to the nation to reject anti-LGBTQ bigotry and instead embrace each of our neighbors for who they are,” the Very Rev. Randolph Marshall Hollerith, Dean of Washington National Cathedral, said at the time of Shepard’s interment.

“In the years since Matthew’s death, the Shepard family has shown extraordinary courage and grace in keeping his spirit and memory alive, and the Cathedral is honored and humbled to serve as his final resting place,” Hollerith said.

The first of the Cathedral’s Dec. 1 services for Shepard began at 7 a.m. with prayers, scripture readings, and music led by the Cathedral’s Rev. Canon Rosemarie Logan Duncan. The service was live streamed on YouTube.

An online, all-day service was also held from 8 a.m. to 5 p.m. that Cathedral officials said was intended to “connect people around the world to honor Shepard and the LGBTQ community and pray for a more just world.”

The Shepard services concluded with a 5:30 p.m. in-person remembrance of Shepard in the Cathedral’s Nave, its main worship space. Among those attending were Shepard’s parents, Dennis and Judy Shepard, who have said they created the Matthew Shepard Foundation to continue their son’s support for equality for all.

A statement released by the Cathedral says a bronze plaque honoring Matthew Shepard was installed in St. Joseph’s Chapel to mark his final resting place at the time Shepard was interred there in 2018. 
Following the Cathedral’s Dec. 1 services for Shepard, the Adams Morgan gay bar Pitchers hosted a reception for Dennis and Judy Shepard, according to Pitchers’ owner David Perruzza.

One of the two men charged with Shepard’s murder, Russell Henderson, pleaded guilty to the charge after prosecutors agreed not to seek the death penalty for him. The second of the two men charged, Aaron McKinney, was convicted of the murder following a lengthy jury trial.

Prosecutors said McKinney repeatedly and fatally struck Shepard in the head with the barrel of a handgun after he and Henderson tied Shepard to a wooden fence in a remote field outside Laramie, Wy., on Oct. 6, 1998. Police and prosecutors presented evidence at McKinney’s trial that McKinney and Henderson met Shepard at a bar in Laramie on that day and lured him into their car, where they drove him to the field where authorities said McKinney fatally assaulted him.

Shepard died six days later at a hospital in Ft. Collins, Colo., where he was taken after being found unconscious while still tied to the fence.

In a dramatic courtroom scene following the jury’s guilty verdict for McKinney, Dennis Shepard urged the judge to spare McKinney’s life by not handing down a death sentence. He said that out of compassion and in honor of his son’s life, McKinney should be allowed to live. The judge sentenced McKinney to two consecutive terms of life in prison without the possibility of parole, the same sentence given to Henderson.

(VIDEO COURTESY OF THE WASHINGTON NATIONAL CATHEDRAL VIA YOUTUBE)
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‘Very familiar’: Mark Glaze’s story brings into focus mental health for gay men

Experts see common story as LGBTQ people enter middle age

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Mark Glaze's death by suicide is bringing into focus mental health issues faced by gay men.

The death by suicide at age 51 of Mark Glaze, a gun reform advocate who was close to many in D.C.’s LGBTQ community, is striking a chord with observers who see his struggles with mental health and alcoholism as reflective of issues facing many gay men as they enter middle age.

Glaze’s story resonates even though much of the attention on mental health issues in the LGBTQ community is devoted to LGBTQ youth going through the coming out process and transgender people who face disproportionate violence and discrimination within the LGBTQ community in addition to a growing focus on LGBTQ seniors entering later stages of life.

Randy Pumphrey, senior director of behavioral health for the D.C.-based Whitman-Walker Health, said Glaze’s story was “very familiar” as a tale of mental health issues facing gay men in the middle stage of life.

“You’re talking about a gay-identified man who is in his 50s, somebody who has struggled with alcohol misuse — or maybe abuse or dependence— and also depression,” Pumphrey said. “I think that there has always been a higher incidence of suicide for men in general in their middle age 50 and above, but this increases when you’re talking about gay men, and also if you’re talking about gay men who suffer with mental health issues, or substance use disorder issues.”

Several sources close to Glaze said his death did not come as a surprise. His family has been open about his death by suicide last month while he was in jail after allegedly fleeing the scene of a car accident in Pennsylvania and a long history of depression and alcoholism.

Pumphrey said Glaze’s situation coping with mental health issues as well as the consequences for his role in the accident, were reflective of someone who might “begin to perceive that this is an issue that they can’t get away from, or the consequences they can’t get away from exposure and that can lead somebody to a fatal outcome.”

“My experience is that there have been gay men that I have worked with over the years — particularly in their 50s and early 60s — it’s taken them a long time to recognize the severity of the problem, whether it’s their depression or their substance abuse, and then they find themselves in a very precarious situation because of shame, and so they may not necessarily seek help even though they need help.”

A 2017 study in the American Journal of Men’s Health found the prevalence of depression among gay men is three times higher than the general adult population, which means they are a subgroup at high risk for suicide.

The study found “scant research exists about gay men’s health beyond sexual health issues,” most often with HIV, which means issues related to depression and suicidality “are poorly understood.”

“Gay men’s health has often been defined by sexual practices, and poorly understood are the intersections of gay men’s physical and mental health with social determinants of health including ethnicity, locale, education level and socioeconomic status,” the study says.

The study acknowledged being male itself is one factor incorporated in addressing mental health issues in this subgroup because “regardless of sexual orientation, men can be reluctant to seek help for mental health problems.” Another study quoted in the report found 23 percent, less than one quarter of gay men, who attempted suicide sought mental health or medical treatment.

In addition to mental health issues facing gay men in Glaze’s age group, others saw his situation as a common story in the culture of Washington, which is notorious for celebrating and prioritizing success with little tolerance for personal setbacks.

In the case of Glaze, who had sparred on Fox News with Tucker Carlson as executive director of Everytown for Gun Safety, the threat of exposure and threat to his career may have seemed overwhelmingly daunting.

Steven Fisher, who knew Glaze since the 1990s and worked with him at the D.C.-based Raben Group, said one factor that contributed to Glaze’s condition was “he could only see upward in terms of his career trajectory.”

“We saw that in him and it had me very concerned because I felt like he might end up in a place that wasn’t good once he left Everytown, and that’s tragically and sadly what happened,” Fisher said. “I think he just had trouble adjusting to what is usually a roller coaster ride, I think, in people’s careers, especially in the D.C. world.”

Along with Glaze, Fisher has worked on gun issues for Everytown, which has been a client of his since 2015 after he worked for them in 2012 after the Newtown shooting.

Compounding the challenges that Glaze faced is a culture among many gay men focused on sexuality, which prioritizes youth and appearance and presents problems as those qualities start fading when men enter middle age.

Fisher said another factor in Glaze’s condition was social media, pointing out public perception about his identity was important to him.

“If you look at his social media — I think this is instructive to the rest of us — a lot of the comments are about how Mark was so good looking and he was charming, and he was so smart and so funny,” Fisher said. “That’s all true, and that’s why he was very appealing to many people, but those qualities don’t really tell you everything about a person. In fact, one could argue they’re superficial in a way, and people have to remember people are more complicated than what you see on social media.”

One issue for gay men facing mental health issues as they enter middle age is they don’t have the same resources as those available to LGBTQ youth, who have been more of a focus in terms of mental health issues in the LGBTQ community.

Among the leading organizations for LGBTQ youth is the Trevor Project, which has resources and a hotline for LGBTQ youth facing mental health crises.

Kevin Wong, vice president of communications for the Trevor Project, said his organization would be receptive to an older LGBTQ person who calls the hotline, but ultimately would refer that person elsewhere.

“If an LGBTQ person above the age of 25 reaches out to The Trevor Project’s crisis services for support and expresses suicidal thoughts, our counselors will listen, actively and with empathy, and work with them to de-escalate and form a safety plan, like any other contact,” Wong said. “However, our organization has remained youth-centric since its founding and our volunteer crisis counselors are specifically trained with younger LGBTQ people in mind.”

Much attention is focused on the coming out process for LGBTQ people, a time that can upend close relationships — as well as reaffirm them — and a process more commonly associated with youth.

Ilan Meyer, senior scholar of public policy at the Williams Institute at the University of California, Los Angeles, said data is scant about suicide rates among LGBTQ people, but information on suicide attempts shows they tend to be at a heightened rate for LGBTQ people as they go through the coming out process.

“What we do know is that there is a connection with the coming out period at whatever age coming out happens,” Meyer said. “And so, we see a proximity to coming out whatever age that happened, we see the suicide attempts proceeding and after that.”

Suicide attempts, Meyer said, are much higher for LGBTQ people than the population at large. The self-reported rate of suicide attempts in the U.S. population as a whole, Meyer said, is 2.4 percent, but that figure changes to 20 to 30 percent among LGBTQ youth, which about to 10 to 15 times greater.

Black and Latino people, Meyer said, have been less likely to make suicide attempts in their lifetimes, although he added that may be changing in recent years.

With the primary focus on mental health issues elsewhere in the LGBTQ community, Glaze’s death raises questions about whether sufficient resources are available to people in his demographic, or whether individuals are willing to seek out care options that are available.

Meyer said whether the resources for suicidal ideologies among LGBTQ people are sufficient and what more could be done “is the the million-dollar question.”

“It’s definitely not determined by just mental health,” Meyer said. “So many people have depression, but they don’t attempt suicide. And so, then the difficult thing is to find the right moment to intervene and what that intervention should be.”

Meyer said much of the focus on mental health is on a person’s last moments before making a suicide attempt, such as making suicide hotlines readily available, but some of the stressors he sees “are more chronic, ongoing things related to homophobia and the kind of experience that LGBT people have as they come to terms to realize their sexual identity.”

Pumphrey said another factor in mental health issues not to be underestimated for almost two years now is “dealing with the COVID and loneliness epidemic,” which appears to have no immediate end in sight with the emergence of the Omnicron variant.

“There was always this piece of sometimes the experience of being in your 50s and early 60s…we talk about the invisibility factor,” Pumphrey said. “But when there’s just this sense of being disconnected from community, especially in the early days of the pandemic, and kind of being locked down, I think that just raised the risk.”

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