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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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District of Columbia

Gay GOP group hosts Ernst, 3 House members — all of whom oppose Equality Act

Log Cabin, congressional guest speakers mum on June 25 event

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Sen. Joni Ernst spoke to D.C.’s Log Cabin group. (Washington Blade file photo by Michael Key)

U.S. Sen. Joni Ernst (R-Iowa) and three women Republican members of the U.S. House appeared as guest speakers at the June 25 meeting of Log Cabin Republicans of D.C., the local chapter of the national LGBTQ Republican group with that same name.

The U.S. House members who joined Ernst as guest speakers at the Log Cabin meeting were Celeste Maloy (R-Utah), Kat Cammack (R-Fla.), and Julia Letlow (R-La.).

Neither D.C. Log Cabin Republicans President Andrew Minik nor spokespersons for Ernst or the three congresswomen immediately responded to a request by the Washington Blade for comment on the GOP lawmakers’ appearance at an LGBTQ GOP group’s meeting.

“Please join us for an inspiring evening as we celebrate and recognize the bold leadership and accomplishments of Republican women in Congress,” a D.C Log Cabin announcement sent to its members states.

“This month’s meeting will highlight the efforts of the Republican Women’s Caucus and explore key issues such as the Protection of Women and Girls In Sports Act and the broader fight to preserve women’s spaces in society,” the message says.

It was referring to legislation pending in Congress calling for banning transgender women from participating in women’s sports events. 

According to media reports, Ernst and the three congresswomen have expressed opposition to the Equality Act, the longstanding bill pending in Congress calling for prohibiting discrimination based on sexual orientation and gender identity in the areas of employment, housing, and public accommodations. 

The Log Cabin announcement says the meeting was scheduled to take place at the Royal Sands Social Club, which is a restaurant and bar at 26 N St., S.E. in the city’s Navy Yard area.    

D.C. Log Cabin member Stuart West, who attended the meeting, confirmed that Ernst and the three congresswomen showed up and spoke at the event.

“It was a good turnout,” he said. “I would definitely say probably 30 or 40 people attended.” West added, “Four women came to talk to a group of mostly gay men. That’s something you don’t see very often.” 

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District of Columbia

D.C. police seek public’s help in July 5 murder of trans woman

Relative disputes initial decision not to list case as hate crime

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Daquane ‘Dream’ Johnson (Photo courtesy of family)

D.C. police are seeking help from the public in their investigation into the murder of a transgender woman who they say was shot to death at about 12:30 a.m. on Saturday, July 5, on the 2000 block of Benning Road, N.E.

But the police announcement of the fatal shooting and a police report obtained by the Washington Blade do not identify the victim, 28-year-old Daquane ‘Dream’ Johnson of Northeast D.C., as transgender. And the police report says the shooting is not currently listed as a suspected hate crime.

It was local transgender activists and one of Johnson’s family members, her aunt, who confirmed she was transgender and said information they obtained indicates the killing could have been a hate crime.

“On Saturday, July 5, at approximately 12:51 a.m., Sixth District officers were flagged down in the 2000 block of Benning Road, Northeast, for an unconscious female,” a July 5 D.C. police statement says. “Upon arrival, officers located an adult female victim suffering from gunshot wounds,” it says.

“D.C. Fire and EMS responded to the scene and transported the victim to a local hospital where after all lifesaving efforts failed and the victim was pronounced dead,” the statement says.

A separate police flyer with a photo of Johnson announces an award of $25,000 was being offered for information leading to the arrest and conviction of the person or persons responsible for the murder.

The flyer identifies D.C. police Homicide Detective Natasha Kennedy as being the lead investigator in the case and says anyone with information about the case should contact her at 202-380-6198.

Longtime D.C. transgender rights advocate Earline Budd told the Blade that one of the police investigators contacted her about the case and that she also spoke to Detective Kennedy. Budd said police confirmed to her that Johnson was a transgender woman.

(Photo courtesy of family)

One of Johnson’s family members, Vanna Terrell, who identified herself as Johnson’s aunt, told the Blade that Johnson used the first name of Dream and had planned to legally adopt that name instead of Daquane but had not gotten around to doing so.

Terrell said she and other family members learned more about the incident when one of two teenage high school students who knew Johnson’s brother contacted a friend and told the friend that they recognized Johnson as they witnessed the shooting. Terrell said the friend then called her to tell her what the friend learned from the two witnesses.

According to Terrell, the witnesses reportedly saw three men approach Johnson as Johnson walked along Benning Road and one of them called Johnson a derogatory name, leading Terrell to believe the men recognized Johnson as a transgender woman.

Terrell said one of the witnesses told the friend, who spoke to Terrell, that the man who shot Johnson kept shooting her until all of the bullets were fired. Budd, who said she spoke to Terrell, who also told her what the witnesses reported, said she believed the multiple shots fired by the shooter was an “overkill” that appears to have been a hate crime. Terrell said she too believes the murder was a hate crime.

In response to an inquiry from the Blade, Officer Ebony Major, a D.C. police spokesperson, stated in an email, “At this point there is nothing in the investigation that indicates the offense was motivated by hate or bias.”

Terrell said a memorial gathering to honor Johnson’s life was scheduled to be held Saturday, July 12, at River Terrace Park, which is located at 500 36th St., N.E. not far from where the shooting occurred.

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Federal Government

Treasury Department has a gay secretary but LGBTQ staff are under siege

Agency reverses course on LGBTQ inclusion under out Secretary Scott Bessent

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U.S. Treasury Secretary Scott Bessent (Washington Blade photo by Michael Key)

A former Treasury Department employee who led the agency’s LGBTQ employee resource group says the removal of sexual orientation and gender identity (SOGI) from its discrimination complaint forms was merely a formalization of existing policy shifts that had already taken hold following the second inauguration of President Donald Trump and his appointment of Scott Bessent — who is gay — to lead the agency. 

Christen Boas Hayes, who served on the policy team at Treasury’s Financial Crimes Enforcement Network (FinCEN) from 2020 until March of this year, told the Washington Blade during a phone interview last week that the agency had already stopped processing internal Equal Employment Opportunity (EEO) complaints on the basis of anti-LGBTQ discrimination. 

“So the way that the forms are changing is a procedural recognition of something that’s already happening,” said Hayes. “Internally, from speaking to two EEO staff members, the changes are already taking place from an EEO perspective on what kind of cases will be found to have the basis for a complaint.”

The move, they said, comes amid the deterioration of support structures for LGBTQ workers at the agency since the administration’s early rollout of anti-LGBTQ executive orders, which led to “a trickle down effect of how each agency implements those and on what timeline,” decisions “typically made by the assistant secretary of management’s office and then implemented by the appropriate offices.”

At the end of June, a group of U.S. House Democrats including several out LGBTQ members raised alarms after a Federal Register notice disclosed Treasury’s plans to revise its complaint procedures. Through the agency’s Office of Civil Rights and EEO, the agency would eliminate SOGI as protected categories on the forms used by employees to initiate claims of workplace discrimination.

But Hayes’s account reveals that the paperwork change followed months of internal practice, pursuant to a wave of layoffs targeting DEI personnel and a chilling effect on LGBTQ organizing, including through ERGs. 

Hayes joined Treasury’s FinCEN in 2020 as the agency transitioned into the Biden-Harris administration, working primarily on cryptocurrency regulation and emerging technologies until they accepted a “deferred resignation” offer, which was extended to civil servants this year amid drastic staffing cuts. 

“It was two things,” Hayes said. “One was the fact that the policy work that I was very excited about doing was going to change in nature significantly. The second part was that the environment for LGBTQ staff members was increasingly negative after the release of the executive orders,” especially for trans and nonbinary or gender diverse employees. 

“At the same time,” Hayes added, “having been on the job for four years, I also knew this year was the year that I would leave Treasury. I was a good candidate for [deferred resignation], because I was already planning on leaving, but the pressures that emerged following the change in administration really pushed me to accelerate that timeline.”

Some ERGs die by formal edict, others by a thousand cuts 

Hayes became involved with the Treasury LGBTQ ERG shortly after joining the agency in 2020, when they reached out to the group’s then-president — “who also recently took the deferred resignation.”

“She said that because of the pressure that ERGs had faced under the first Trump administration, the group was rebuilding, and I became the president of the group pretty quickly,” Hayes said. “Those pressures have increased in the second Trump administration.”

One of the previous ERG board members had left the agency after encountering what Hayes described as “explicitly transphobic” treatment from supervisors during his gender transition. “His supervisors denied him a promotion,” and, “importantly, he did not have faith in the EEO complaint process” to see the issues with discrimination resolved, Hayes said. “And so he decided to just leave, which was, of course, such a loss for Treasury and our Employee Resource Group and all of our employees at Treasury.”

The umbrella LGBTQ ERG that Hayes led included hundreds of members across the agency, they said, and was complemented by smaller ERGs at sub-agencies like the IRS and FinCEN — several of which, Hayes said, were explicitly told to cease operations under the new administration.

Hayes did not receive any formal directive to shutter Treasury’s ERG, but described an “implicit” messaging campaign meant to shut down the group’s activities without issuing anything in writing.

“The suggestion was to stop emailing about anything related to the employee resource group, to have meetings outside of work hours, to meet off of Treasury’s campus, and things like that,” they said. “So obviously that contributes to essentially not existing functionally. Because whereas we could have previously emailed our members comfortably to announce a happy hour or a training or something like that, now they have to text each other personally to gather, which essentially makes it a defunct group.”

Internal directories scrubbed, gender-neutral restrooms removed

Hayes said the dismantling of DEI staff began almost immediately after the executive orders. Employees whose position descriptions included the terms “diversity, equity, and inclusion” were “on the chopping block,” they said. “That may differ from more statutorily mandated positions in the OMWI office or the EEO office.”

With those staff gone, so went the infrastructure that enabled ERG programming and community-building. “The people that made our employee resource group events possible were DEI staff that were fired. And so, it created an immediate chilling effect on our employee resource group, and it also, of course, put fear into a lot of our members’ hearts over whether or not we would be able to continue gathering as a community or supporting employees in a more practical way going forward. And it was just, really — it was really sad.”

Hayes described efforts to erase the ERGs from internal communication channels and databases. “They also took our information off internal websites so nobody could find us as lawyers went through the agency’s internal systems to scrub DEI language and programs,” they said.

Within a week, Hayes said, the administration had removed gender-neutral restrooms from Main Treasury, removed third-gender markers from internal databases and forms, and made it more difficult for employees with nonbinary IDs to access government buildings.

“[They] made it challenging for people with X gender markers on identification documents to access Treasury or the White House by not recognizing their gender marker on the TWAVES and WAVES forms.”

LGBTQ staff lack support and work amid a climate of isolation 

The changes have left many LGBTQ staff feeling vulnerable — not only because of diminished workplace inclusion, but due to concerns about job security amid the administration’s reductions in force (RIFs).

“Plenty of people are feeling very stressed, not only about retaining their jobs because of the layoffs and pending questions around RIFs, but then also wondering if they will be included in RIF lists because they’re being penalized somehow for being out at work,” Hayes said. “People wonder if their name will be given, not because they’re in a tranche of billets being laid off, but because of their gender identity or sexual orientation.”

In the absence of functional ERGs, Hayes said, LGBTQ employees have been cut off from even informal networks of support.

“Employees [are] feeling like it’s harder to find members of their own community because there’s no email anymore to ask when the next event is or to ask about navigating healthcare or other questions,” they said. “If there is no ERG to go to to ask for support for their specific issue, that contributes to isolation, which contributes to a worse work environment.”

Hayes said they had not interacted directly with Secretary Bessent, but they and others observed a shift from the previous administration. “It is stark to see that our first ‘out’ secretary did not host a Pride event this year,” they said. “For the last three years we’ve flown the rainbow Pride flag above Treasury during Pride. And it was such a celebration among staff and Secretary Yellen and the executive secretary’s office were super supportive.”

“Employees notice changes like that,” they added. “Things like the fact that the Secretary’s official bio says ‘spouse’ instead of ‘husband.’ It makes employees wonder if they too should be fearful of being their full selves at work.”

The Blade contacted the Treasury Department with a request for comment outlining Hayes’s allegations, including the removal of inclusive infrastructure, the discouragement of ERG activity, the pre-formalization of EEO policy changes, and the targeting of DEI personnel. As of publication, the agency has not responded.

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