News

HISTORIC: Supreme Court strikes down DOMA, Prop 8

DOMA violates equal protection; Prop 8 supporters lack standing

Published

10 years ago

June 26, 2013

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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Maryland

Bomb threat shuts down Takoma Park holiday drag show

MotorKat evacuated when Tara Hoot was performing

Published

10 hours ago

December 9, 2023

Philip Van Slooten

Tara Hoot was performing at MotorKat in Takoma Park, Md., on Dec. 9, 2023, when a bomb threat forced the business' evacuation. (Washington Blade photo by Michael Key)

Police cordoned off a popular strip in Takoma Park on Saturday after a bomb threat shut down businesses, including a holiday performance by drag artist Tara Hoot.

MotorKat General Manager Mike Rothman told the Washington Blade that Takoma Park police notified them of a bomb threat to their business around noon.

Tara Hoot was delivering a holiday brunch performance at the MotorKat when the evacuation order came in.

Rothman said they were notified “five minutes into her final performance.” Tara Hoot herself told the audience to leave for their safety.

Police proceeded to tape off the area and evacuated all businesses between Eastern and South Carroll Avenues, including TakomaBevCo, which is co-owned by MotorKat Wine Director Seth Cook.

Cook told the Blade that police brought in “bomb-sniffing dogs” to clear the area before allowing businesses to reopen around 2 p.m.

“The timing is unfortunate as this is one of the busiest weekends before the holidays,” Cook said.

Rothman was also disappointed by the lost revenue due to what ultimately was a false threat, but he was firm that the Takoma Park LGBTQ community is resilient and would continue to thrive despite this setback.

“Takoma Park is a pretty proud and resilient community,” he said. “I don’t expect people to lay down and be scared by this.”

MotorKat and TakomaBevCo reopened for business around 3 p.m.

Congress

Anti-LGBTQ provisions removed from NDAA

New version omits restriction on gender affirming care, book and drag bans

Published

1 day ago

December 8, 2023

Christopher Kane

U.S. Capitol Building (Washington Blade photo by Michael Key)

Anti-LGBTQ provisions submitted by House Republicans to the National Defense Authorization Act (NDAA) have been removed from the defense spending bill, triggering outrage from conservative lawmakers and praise from LGBTQ groups.

The conference version of the bill was released on Thursday.

This week saw the revocation of two measures targeting gender affirming care along with the book ban and drag ban. Language stipulating the list of approved flags that can be flown at military bases was amended such that more flags can be added on a discretionary basis.

“MAGA members of Congress tried to hijack the National Defense Authorization Act to advance their anti-LGBTQ+ agenda, attempting to riddle it with discriminatory riders,” Human Rights Campaign National Press Secretary Brandon Wolf said in a statement to the Washington Blade.

His statement continued, “They failed and equality won. Anti-LGBTQ+ provisions, including efforts to restrict access to gender affirming care, were rejected. The anti-LGBTQ+ agenda continues to be deeply unpopular across the country and a failing political strategy.”

Wolf thanked U.S. Sen. Jack Reed (D-R.I.) and U.S. Rep. Adam Smith (D-Wash.) for “defending equality and defeating attacks on the community.”

Pledging to vote “no” on the bill, Republican U.S. Rep. Marjorie Taylor Greene (Ga.) said in a post on X, “I was appointed to the NDAA conference committee but NEVER got to work on the final version of the NDAA bc they made the deal behind closed doors and here are the horrible results.”

I was appointed to the NDAA conference committee but NEVER got to work on the final version of the NDAA bc they made the deal behind closed doors and here are the horrible results 👇

I’m voting NO!!! pic.twitter.com/jnmTHCgzNG
— Rep. Marjorie Taylor Greene🇺🇸 (@RepMTG) December 8, 2023

India

Transgender people seek government job consideration in India’s Maharashtra state

Court petition filed on Nov. 29

Published

1 day ago

December 8, 2023

Ankush Kumar

Transgender flags (Washington Blade photo by Michael Key)

Ancient texts in India have recorded the history and cultural importance of transgender people, but the community is still marginalized and vulnerable in the country. Although the government offers many vulnerable castes a specific number of slots for education and government jobs, trans people still have no such benefit and continue to face discrimination across the nation.

Three trans people from Maharashtra state on Nov. 29 filed an application to the Maharashtra Administrative Tribunal seeking slots for trans people in government jobs and a “third gender” option in online job applications. Two applicants had applied for police officer posts, while the other had applied for a revenue officer post — both of which are government jobs in India.

While hearing the application, the Maharashtra Administrative Tribunal, a court that has all the powers of the High Court, said it cannot direct the state government to give slots for trans people in public employment and education. The Maharashtra Administrative Tribunal did say, however, that the state government should take more steps towards inclusivity for the community in mainstream society.

Maharashtra’s government told the tribunal it would not be possible to provide slots to trans people in government jobs or education.

The Maharashtra Administrative Tribunal in a 26-page order directed the state government to give applicants the necessary points to qualify for the job if the applicant has secured 50 percent of the total marks for the concerned post. The tribunal also directed the government to provide age relaxation to trans applicants if they earned 45 points.

In India, every government job seeker goes through an examination to qualify for the job. Government job examinations are one of the toughest in India because there are millions of applications for a few positions, resulting in the need to secure higher marks to get a position.

More than one million applicants applied for 18,331 police officer positions in 2022. The government, however, provides slots to backward class applicants and gives points relaxation in examinations. Trans people in India are most marginalized and vulnerable with no slots in education or employment.

Retired Justice Mridula Bhatkar, who chairs the Maharashtra Administrative Tribunal and member Medha Gadgil in the ruling said the fact that not a single trans person who has come out received a job in the government sector speaks volumes.

“The transgender people are humans and are citizens of our great country who are waiting for their inclusion in the mainstream,” said the tribunal. “We have historical, mythological and cultural instances of eunuchs and their participation in political, social or cultural fields.”

The tribunal also said trans people are in the minority.

Although the majority forms the government, the majority cannot suppress the rights of marginalized sections of society. The tribunal further added the situation in which the trans community finds itself is worse than what women faced in the past while demanding equality.

The tribunal highlighted the mere acknowledgment of the separate identity of trans people was not enough, but they also need to be given opportunities in government jobs.

“The State of Maharashtra has been very progressive in its thought and culture,” said the tribunal. “Therefore, it is desirable on the part of the government to take necessary measures to enable these transgender applicants to get jobs in the government sector.”

The tribunal mentioned Indian Constitution prohibits any kind of discrimination based on sex under articles 15 and 16.

“To get into public employment is a handicapped race for transgenders,” said the tribunal. “Though they are not physically disabled and are able-bodied persons, their activities, actions, growth are paralyzed due to the negative approach of society, family in all schools, colleges in all places at all levels.”

While representing the petitioners, Kranti LC, a lawyer, said that the Indian states of Tamil Nadu, Chattisgarh, Karnataka, Jharkhand and Bihar have provided reservations to trans people. The tribunal, however, noted it understands the state has reached the limit of vertical slot of 62 percent, but ordered the law can reach equality and harmony through social engineering.

“The courts are for justice and cannot ignore any societal problem when placed before it,” said the tribunal. “Under such circumstances, though courts are not the lawmakers while interpreting the law, a legally permissible solution is to be applied to meet the ends of justice.”

According to the Indian Supreme Court’s 1992 Indra Sawhney vs. Union of India ruling, nine judges upheld the 50 percent ceiling on slots and denied slots in promotion in government jobs. This means no government agencies or institutions can give slots more than 50 percent of total job openings. Maharashtra state already crossed the limit.

“It is very unfortunate, because transgender people are one of the most vulnerable people in India, and of the most marginalized population in our country,” said Kalki Subramaniam, a trans rights activist and founder of Sahodari Foundation, an organization that works for trans Indians. “For the horizontal reservation, we need to get the support of our government. We need to sensitize our members of Parliament. I think, all political parties do support (the) transgender community, and do understand the plight of the community and difficulties we face.”

Kalki told the Washington Blade the community needs to work hard. She said the community needs to start campaigning for horizontal slots. She said the community needs to MPs to get the necessary support for it.

While talking to the Blade, Rani Patel, an activist and founder of Aarohan, a nonprofit organization that works with trans Indians, said that it is right that the trans community needs to have reservations in jobs and education so that they can be mainstreamed in the society.

“I have been working with the transgender community for last 11 years in Delhi. We had worked very hard for the scraping of section 377,” said Patel. “All the equality and rights given by the Supreme Court of India is of no use until and unless they are not provided with reservation, because there is a stigma in the society against the transgender people, the community feel rejected and detached from the society.”

Patel told the Blade that only a few trans children are getting an education in the country. She said most of the trans people in India need to be skilled in whichever field for which they have an interest. Patel further said that while getting skills, the government should provide slots to trans people, otherwise giving skills will be of no use.

Patel and Aarohan were instrumental in drafting the Delhi government’s trans bill.

Ankush Kumar is a reporter who has covered many stories for Washington and Los Angeles Blades from Iran, India and Singapore. He recently reported for the Daily Beast. He can be reached at [email protected]. He is on Twitter at @mohitkopinion.