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HISTORIC: Supreme Court strikes down DOMA, Prop 8

DOMA violates equal protection; Prop 8 supporters lack standing

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Proposition 8, Defense of Marriage Act, same-sex marriage, gay marriage, gay news, Washington Blade, Chad Griffin, Human Rights Campaign, American Foundation for Equal Rights, Paul Katami, Kris Perry, Jeff Zarillo, Sandy Stier, Supreme Court, Hollingsworth v. Perry, Winsor v. U.S.
Supreme Court, gay marriage, same sex marriage, marriage equality, Proposition 8, Hollingsworth vs. Perry, gay news, Washington Blade

Gay marriage advocates rallying at the Supreme Court earlier this year during oral arguments for two major cases. The court struck down two anti-gay laws today, opening the door for expanded rights for same-sex couples in many jurisdictions. (Washington Blade photo by Michael Key)

In a historic development, the U.S. Supreme Court handed down two decisions on Wednesday that advanced marriage rights for gay couples and will almost certainly reshape the national debate on the issue.

In one 5-4 ruling, the court determined that the 1996 Defense of Marriage Act is unconstitutional because it violates due process and equal protection for same-sex couples under the Fifth Amendment to the U.S. Constitution. That decision means the U.S. government must begin recognizing same-sex marriages for a broad range of benefits, including those related to federal taxes and immigration law.

Associate Justice Anthony Kennedy wrote the opinion and was joined by Associate Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan.

“The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity,” Kennedy said. “By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.”

The dissenting justices were Chief Justice John Roberts and Associate Justices Antonin Scalia, Clarence Thomas and Samuel Alito. In his opinion, Roberts says Congress acted constitutionally in passing DOMA and took issue with the authority the court granted itself in overturning the anti-gay statute.

Writing his dissent, Scalia said the decision of the court robs the American public of its ability to decide the issue of same-sex marriage through the democratic process.

“Some will rejoice in today’s decision, and some will despair at it; that is the nature of a controversy that matters so much to so many,” Scalia writes. “But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better.”

In another 5-4 decision, the court determined anti-gay forces don’t have standing to defend California’s Proposition 8. That decision leaves in place a district court injunction that prohibits the state of California from enforcing its ban on same-sex marriage. Gay couples will be able to marry in the state once the U.S. Ninth Circuit Court of Appeals lift its stay.

Roberts wrote the majority opinion for the court and was joined by Scalia, Ginsburg, Breyer and Kagan. Kennedy wrote the dissenting opinion and was joined by Thomas, Alito and Sotomayor.

“The Article III requirement that a party invoking the jurisdiction of a federal court seek relief for a personal, particularized injury serves vital interests going to the role of the Judiciary in our system of separated powers,” Roberts writes. “States cannot alter that role simply by issuing to private parties who otherwise lack standing a ticket to the federal courthouse.”

The court’s ruling in the case against Prop 8, known as Hollingsworth v. Perry, is specific only to California — meaning the justices didn’t grant the expansive ruling that supporters of marriage equality had sought to bring marriage equality to all 50 states.

Shortly after HRC President Chad Griffin walked out of the court with plaintiffs in the marriage cases, he received a call from President Obama who was aboard Air Force One. Obama congratulated Griffin for the victories as reporters and onlookers watched.

The decisions were handed down 10 years to the day that the Supreme Court announced its landmark decision in the 2003 case of Lawrence v. Texas, which struck down state sodomy laws throughout the country.

The challenge to DOMA, known as United States v. Windsor, was filed by the American Civil Liberties Union and others in 2011 on behalf of lesbian New York widow Edith Windsor. Upon the death of her spouse Thea Spyer in 2009, Windsor had to pay the U.S. government $363,000 in estate taxes because of DOMA — a penalty that she wouldn’t have faced if she were married to a man.

The decision striking down DOMA affirms the initial rulings against the federal anti-gay law last year by U.S. District Judge Barbara Jones and the U.S. Second Circuit Court of Appeals.

The Obama administration helped in securing the ruling against DOMA. After it stopped defending DOMA in 2011, the U.S. Justice Department began filing briefs against the law and sent attorneys to litigate against it during oral arguments. U.S. Solicitor General Donald Verrilli argued against DOMA before the Supreme Court, saying the law doesn’t hold up under the standard heightened scrutiny, or a greater assumption it’s unconstitutional.

But the Supreme Court didn’t get to the issue of heightened scrutiny in the DOMA case because it found the law was unconstitutional under the less stringent standard of rational basis review.

The case against Prop 8 was filed by the California-based American Foundation for Equal Rights in 2009 on behalf of two plaintiff couples — a lesbian couple, Kristin Perry and Sandra Stier, and a gay male couple, Paul Katami and Jeffrey Zarrillo — who were unable to marry because of the state’s constitutional ban on same-sex marriage.

The attorneys representing them were Theodore Olson, a former U.S. solicitor general during the Bush administration, and David Boies, a so-called “dream team” of attorneys who represented opposite sides in the 2000 case Bush v. Gore.

Because the state officials — California Gov. Jerry Brown and Attorney General Kamala Harris — refused to defend Prop 8 in court, anti-gay groups that put Prop 8 on the ballot in 2008 such as ProtectMarriage.com took up the responsibility of defending the measure. The California Supreme Court certified the groups had standing under state law and the U.S. Ninth Circuit Court of Appeals affirmed they had standing.

But the high court determined that these groups — even though attorney Charles Cooper spoke on behalf on them in oral arguments — don’t have standing because they lack any legal injury in the wake of the lower court’s determination that Prop 8 is unconstitutional.

The Obama administration had also assisted in efforts to secure a ruling against California’s Proposition 8. The Justice Department filed a friend-of-the-court brief in February saying the ban was unconstitutional and Verrilli argued in court against Prop 8, suggesting all eight states with domestic partnerships should be required to grant marriage rights to gay couples.

The issue of standing also came up in the DOMA case for two reasons. One, the court had questioned whether the U.S. Justice Department could have appealed the district court ruling to the Second Circuit because the initial ruling against DOMA was what the Obama administration wanted. Two, the court questioned whether the Bipartisan Legal Advisory Group, a five-member Republican-majority panel within the U.S. House, had standing to take up defense of DOMA in the administration’s stead.

But the court determined an active controversy remains in the case because the U.S. government still hasn’t refunded Windsor the $363,000 she paid in estate taxes. Once the court determined it has jurisdiction based on the Obama administration’s appeal of the lawsuit, it didn’t get to the issue of whether BLAG has standing.

In his ruling, Kennedy writes the continuation of litigation in the absence of a federal ruling on DOMA would cause uncertainty.

“[T]he costs, uncertainties, and alleged harm and injuries likely would continue for a time measured in years before the issue is resolved,” Kennedy writes in the ruling. “In these unusual and urgent circumstances, the very term ‘prudential’ counsels that it is a proper exercise of the Court’s responsibility to take jurisdiction.”

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National

Biden announces pardons for thousands convicted of federal marijuana possession

“Too many lives have been upended because of our failed approach to marijuana.  It’s time that we right these wrongs”

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(Photo courtesy of NORML)

President Biden traveling in New York state on Thursday announced that he was granting a pardon of all prior Federal offenses of simple possession of marijuana.

Taking aim at federal conviction rates for marijuana possession, Biden noted in a statement released by the White House, “while white and Black and brown people use marijuana at similar rates, Black and brown people have been arrested, prosecuted, and convicted at disproportionate rates.”

This announcement by the president comes roughly a month before the midterm elections that will decide whether the president’s party can hold on to control of Congress. Democratic and progressive candidates have pushed the administration for action on this issue which which many Democratic activists have long called for.

The White House estimates will affect more than 6,500 people and in conjunction with his action today Biden is asking that all Governors to do the same with regard to state offenses.

Statement from President Biden on Marijuana Reform

As I often said during my campaign for President, no one should be in jail just for using or possessing marijuana.  Sending people to prison for possessing marijuana has upended too many lives and incarcerated people for conduct that many states no longer prohibit. Criminal records for marijuana possession have also imposed needless barriers to employment, housing, and educational opportunities.  And while white and Black and brown people use marijuana at similar rates, Black and brown people have been arrested, prosecuted, and convicted at disproportionate rates.
 
Today, I am announcing three steps that I am taking to end this failed approach.
 
First, I am announcing a pardon of all prior Federal offenses of simple possession of marijuana.  I have directed the Attorney General to develop an administrative process for the issuance of certificates of pardon to eligible individuals.  There are thousands of people who have prior Federal convictions for marijuana possession, who may be denied employment, housing, or educational opportunities as a result.  My action will help relieve the collateral consequences arising from these convictions.
 
Second, I am urging all Governors to do the same with regard to state offenses.  Just as no one should be in a Federal prison solely due to the possession of marijuana, no one should be in a local jail or state prison for that reason, either.
 
Third, I am asking the Secretary of Health and Human Services and the Attorney General to initiate the administrative process to review expeditiously how marijuana is scheduled under federal law.  Federal law currently classifies marijuana in Schedule I of the Controlled Substances Act, the classification meant for the most dangerous substances.  This is the same schedule as for heroin and LSD, and even higher than the classification of fentanyl and methamphetamine – the drugs that are driving our overdose epidemic. 
 
Finally, even as federal and state regulation of marijuana changes, important limitations on trafficking, marketing, and under-age sales should stay in place.
 
Too many lives have been upended because of our failed approach to marijuana.  It’s time that we right these wrongs. 

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Local

Comings & Goings

Conner promoted to manager of Scott Circle Communications

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Robert Conner

The Comings & Goings column is about sharing the professional successes of our community. We want to recognize those landing new jobs, new clients for their business, joining boards of organizations and other achievements. Please share your successes with us at: [email protected].

Congratulations to Robert Conner, promoted to manager of Scott Circle Communications. On his promotion Conner said, “I’m proud to be promoted to manager of Scott Circle Communications. Our clients are all mission-driven. I am fortunate to use my expertise to help clients communicate complex and urgent information to the public in order to help people learn about new research relating to their health, and the society around them. As an activist fighting for equality and LGBTQ causes, my daily work at Scott Circle Communications aligns with my overarching life goal of using communication to benefit the greater good by writing clearly to bridge misunderstandings.” 

Conner previously worked at SKDKnickerbocker in D.C. Prior to that he had been an intern in the office of Sen. Bob Casey (D-Pa.).  He has had a number of speaking engagements with the Public Relations Society of America (PRSA) and received a bronze Bulldog Award for Best Media Relations Campaign 2022. He served as chair of the volunteer engagement committee of the Human Rights Campaign in Greater Philadelphia.

Conner earned his bachelor’s degree in political science from Swarthmore College, Swarthmore, Pa.

Congratulations also to Christopher Rudolf who joined Atlantic Shores Sotheby’s International Realty in Ocean City, Md. Rudolph is a licensed Realtor in Maryland and Delaware specializing in the beaches and coastal areas of Worcester County, Md., and Sussex County, Del. He said, “I have been assisting buyers and sellers of real estate in our area since 2015. I thoroughly enjoy helping people achieve their dreams of coastal property ownership. The Maryland/Delaware seashore is a very cool place that I like to call home, and teaching people about the history and attractions of the region is a lifelong passion of mine.”  

In addition to real estate in the warm months, Rudolf works part-time as a manager at The Kite Loft of Ocean City. He was appointed to the Ocean City Board of Zoning Appeals in 2013 by Ocean City Mayor Rick Meehan, and recently was elected chair of the board.  

He earned his bachelor’s degree in political science from Salisbury University in Maryland.  

Christopher Rudolf
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Africa

Human rights groups condemn victimization of LGBTQ, intersex people in Zambia

Country’s Catholic archbishop backs anti-gay campaign

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(Photo courtesy of LGBT Zambia's Facebook page)

Human rights organizations and activists have condemned the continued victimization of LGBTQ and intersex people in Zambia.

Anti-LGBTQ and intersex sentiments have been gaining momentum in recent weeks, including Dr. Brian Sampa’s #banbeardtobeard campaign in relation to gay couples. Alick Banda, the archbishop of the Catholic Diocese of Lusaka, and other Zambian religious leaders have also echoed these sentiments.

“In the last 12 months, we have witnessed an increase in the number of incidents and events that promote LGBTQ tendencies contrary to the laws of Zambia and our Zambian culture. Additionally, there has been an increase in the number of incidents of sodomy where boys and men are raped by fellow boys and men with impunity,” said Banda on Sept. 25. “We have witnessed several cases of sodomy and homosexuality on the increase in our society much to the displeasure and disapproval of the general public. Unfortunately, the law enforcement agents and the president who took an oath to protect the Constitution seems to be paying a blind eye. The question that begs an answer is, is it by design or by default.”

Consensual same-sex sexual relations remain criminalized in Zambia.

President Hakainde Hichilema last month reiterated his government does not support LGBTQ and intersex rights in response to Sampa’s protest.

The Global Interface Network, a global NGO that promotes safety and inclusion for all people of faith and especially for people who suffer discrimination because of their sexual orientation, criticized Banda’s comments.

“The statement by the archbishop has the potential to further escalate violence and we are deeply concerned for the wellbeing and safety of members of the 2SLGBTQIA+ community in Zambia,” said the Global Interface Network in a statement it released on Sept. 26. “Religious leaders are the shepherds of their flocks and have a responsibility to provide guidance, care and support to the faith community. Although we understand that for the Archbishop of Lusaka, same sex sexualities and non-normative gender identities are unfamiliar, we do not believe that it is appropriate, especially in a context in which people are already marginalized and subjected to violence and discrimination, for the archbishop to put his stamp of approval on further violence.”

The Global Interface Network in its statement encouraged Banda and the country’s Catholic Church “to enter into a process of fellowship and discernment alongside 2SLGBTQIA+ people of faith and skilled dialogue facilitators in Zambia and to collectively grow in the mission to offer compassion, care and love to the most vulnerable.” 

“The people of Zambia, just as it is the people of the African continent, deserve an opportunity to see humanity beyond heterosexuality,” it said. “That opportunity has the potential for a reclamation of the African people’s history of dealing with diversity, an opportunity of understanding beyond the common narrative of dehumanization.”

Mino, a Zambian LGBTQ and intersex activist, said Sampa has been sharing misleading information on his social media platforms that has influenced religious leaders and others across the country.

“The leader of this ban homosexuality movement has jumped from one cause to the other without success and unfortunately, this has seen him get heavy backing from people who share similar religious views. The whole thing has not been objective, the information he is disseminating is highly inaccurate, and full of untruths about 2SLGBTQIA+ persons. Sadly, the church and in a way the State has also jumped on this bandwagon,” said Mino. 

“Nevertheless, despite the current situation facing the 2SLGBTQIA+ community in Zambia, it is my hope that this opens a balanced dialogue of issues of sexuality and gender,” added Mino. “People must have accurate information on who we are as people and begin to see us as human beings with lives, families, interests, jobs, struggles, just like any other person as currently the 2SLGBTQIA+ community has been reduced to being only sexual beings and cannot be seen beyond that.”

Daniel Itai is the Washington Blade’s Africa Correspondent.

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