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House GOP drops DOMA defense

‘Windsor decision resolves issue of DOMA’s Section 3 constitutionality’

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John Boehner, Speaker of the House, GOP, Republican, gay news, Washington Blade
John Boehner, Speaker of the House, GOP, Republican, gay news, Washington Blade

U.S. House Speaker John Boehner has dropped defense of DOMA in court. (Washington Blade file photo by Michael Key).

House Republicans and the U.S. Justice Department are switching roles in a case against the Defense of Marriage Act that continues because it also challenges a statute restricting veterans’ benefits for troops with same-sex spouses.

In a move widely praised by LGBT advocates on Thursday, House Republican lawyers who had previously defended DOMA — including Paul Clement, a former U.S. solicitor general during the Bush administration — announced they would withdraw as a participant in the lawsuit in the wake of the U.S. Supreme Court decision last month in the Windsor case striking down DOMA.

“The Windsor decision necessarily resolves the issue of DOMA’s Section 3 constitutionality in this case,” the filing states. “While the question of whether [Title 38] is constitutional remains open, the House has determined, in light of the Supreme Court’s opinion in Windsor, that it no longer will defend that statute. Accordingly, the House now seeks leave to withdraw as a party defendant.”

The lawsuit, known as McLaughlin v. Panetta, was filed on behalf of gay troops and veterans by Servicemembers Legal Defense Network and Chadbourne & Parke LLP in 2011 and challenges DOMA as well as Title 38, the law governing veterans’ benefits that also restricts the definition of spouse to opposite-sex couples.

LGBT advocates praised the move from House Republicans, who had taken up defense of DOMA after the Obama administration stopped defending it in 2011, as a decision placing them on the right side of history.

Chad Griffin, president of the Human Rights Campaign, called the move “historic,” noting that House Republicans spent an estimated $2.3 million in defense of DOMA.

“After millions of taxpayer dollars wasted defending discrimination, it’s a historic sign of the times that the House leadership is dropping its pointless quest to maintain second-class status for lesbian and gay couples,” Griffin said.

Drew Hammill, a spokesperson for House Minority Leader Nancy Pelosi (D-Calif.), said Republican attorneys should follow suit in other lawsuits related to DOMA and file motions to exit as parties in those cases.

“The Supreme Court’s ruling is clear,” Hammill said “Rather than trying to delay justice for particular married gay and lesbian couples and their families, Speaker Boehner should immediately file motions to end House Republicans’ involvement in the remaining cases and stop spending taxpayer dollars to defend unconstitutional discrimination.”

In addition to the McLaughlin case, another DOMA lawsuit also challenging Title 38 was filed by the Southern Poverty Law Center and is known as Cooper-Harris v. United States.

Caren Short, staff attorney for the Southern Poverty Law Center, called on Republican attorneys to withdraw from the Cooper-Harris case as well.

“We are considering our next steps and hope BLAG will withdraw from the Cooper-Harris case and finally end their shameful crusade against veterans and their spouses,” Short said.

Boehner’s office didn’t respond to a request for comment on whether House Republicans would similarly withdraw from other lawsuits related to DOMA.

But on the same day House Republicans made the filing to withdraw from the McLaughlin case, the Justice Department made its own filing disputing the plaintiffs’ ability to challenge Title 38 in the lawsuit.

First, the Justice Department contests that any of the plaintiffs have been harmed by the statute because it says none of them have applied for and been denied  veterans benefits.

“These plaintiffs do not allege that they have applied for or been denied any veterans’ benefits (such as additional disability compensation based on a veteran’s service-connected disability, burial benefits, or dependency and indemnity compensation) that they would be eligible to receive but for their same-sex marriage,” the Justice Department states.

Second, the Obama administration maintains that the court in which the lawsuit was filed doesn’t have jurisdiction to decide veterans’ claims because the Veterans’ Judicial Review Act provides the exclusive review scheme for such challenges.

“Under this scheme, a veteran may seek administrative review of the denial of veterans’ benefits before the Board of Veterans’ Appeals and subsequent judicial review by the Court of Appeals for Veterans Claims, with the right to appeal that court’s decision as to legal issues to the U.S. Court of Appeals for the Federal Circuit and ultimately to the Supreme Court,” the Justice Department said.

The Justice Department makes this filing — signed by gay Acting Assistant Attorney General Stuart Delery — even though the U.S. Attorney General announced in February 2012 that it won’t defend Title 38 in court as it pertains to married same-sex couples.

Although the Justice Department objects to the Title 38 challenge in the case on procedural grounds, the filing makes clear the administration still believes Title 38 is unconstitutional “against challenges under the equal protection component of the Fifth Amendment Due Process Clause.”

Christopher Man, a gay attorney handling the case with Chadbourne & Parke LLP, said he disagrees with the arguments presented by the Obama administration, but will work with the Justice Department going forward.

“We appreciate that DOJ has agreed with us that each of the statutory provisions we challenged is unconstitutional, and are working with DOJ lawyers to find a solution that will provide our plaintiffs with all the benefits they would have received if their application for benefits had not been unconstitutionally denied,” Man said.

U.S. District Judge Richard Stearns had asked both House Republicans and the Justice Department to file by Thursday on the impact of the Windsor case on the McLaughlin case.

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Lindsey Graham: Same-sex marriage should be left to the states

Republican senator says issue a distraction from inflation

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Sen. Lindsey Graham said he still thinks the issue of same-sex marriage should be left to the states. (Blade file photo by Michael Key)

Sen. Lindsey Graham (R-S.C.), seven years after the U.S. Supreme Court ruled in favor of same-sex marriage nationwide, said Sunday he still thinks the issue of gay nuptials should be left to the states.

Graham made the remarks during an interview with CNN’s Dana Bash in a rare televised bipartisan debate with Sen. Richard Blumenthal (D-Conn.) as the Senate was in the middle of voting on amendments for the Inflation Reduction Act.

When discussing the 6-3 conservative majority of the Supreme Court, Graham said consistent with the recent decision overturning Roe v. Wade justices could overturn other precedents, such as the 2015 decision in Obergefell v. Hodges in favor of same-sex marriage.

Asked point blank if he was saying it should be overturned, Graham said “no, I’m saying that I don’t think it’s going to be overturned.” Graham, however, had an infection his voice, suggesting same-sex marriage could be undone.

“Nor should it be?” asked Bash.

“Well, that would be up to the court,” he responded, then added: “I think states should decide the issue of marriage, and states should be decide the issue of abortion.”

When Bash brought up another case, Loving v. Virginia, the 1965 case that overturned states bans on interracial marriage, and asked if that should be revisited as well, Graham replied, “no.”

Graham quickly moved on to tamp down any expectation the would address the issue of same-sex marriage, saying fears the court would revisit the issue are unfounded and meant as a distraction from issues such as inflation.

“But if you’re going to ask me to have the federal government take over defining marriage, I’m going to say no,” Graham added.

Graham’s remarks are consistent with what he told the Washington Blade in 2015 when asked about same-sex marriage as the issue was being adjudicated by the Supreme Court. However, they contrast to his support for a Federal Marriage Amendment that was pending before Congress during the Bush administration and would have made a ban on same-sex marriage nationwide part of the U.S. Constitution. Graham was not asked about his views on now defunct idea of an amendment during the CNN interview.

h/t The Independent

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Biden on freeing Brittney Griner: ‘I’m hopeful. We’re working very hard.’

U.S. puts deal on table as Griner sentenced to nine years

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President Biden said he was hopeful about freeing Brittney Griner on Friday.

President Biden made brief comments on Friday expressing optimism about securing the release of Brittney Griner the day a Russian judge sentenced the lesbian basketball player to nine years in a penal colony.

“I’m hopeful. We’re working very hard,” Biden said in response to a shouted question from a reporter following a bill signing at the White House.

Griner has been detained in Russia since February on charges of entering the country with vape cartridges containing cannabis oil and was later arrested on drug charges. The Biden administration has proposed a prisoner swap with Russia for the release of Griner in exchange for a Russian arms dealer in U.S. custody.

White House Press Secretary Karine Jean-Pierre said Friday the optimism Biden expressed was based on general feelings as opposed to a new development in negotiations.

“He’s the president, he has to feel hopeful,” Jean-Pierre said. “This is something that is important to him. I don’t think — if he had said something else — it would have not, you want to be sure you zero in, he’s focused on the task that is at hand. His team is working on this, his national security team, you’ve heard from Secretary Blinken, you’ve heard from us. This is something — again, has been top of mind, bringing U.S. nationals home who are being wrongfully detained, who are being held hostage has been a priority of his. There’s no other place but to be hopeful and to do the work that we need to do to get this done.”

Asked if there was any specific development, Jean-Pierre replied, “No. I wouldn’t read into it. I think as president, he’s doing what presidents do, giving hope.”

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House Dems seek IRS review of anti-LGBTQ organization’s tax status

Family Research Council designated ‘association of churches’

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Rep. Suzan DelBene (D-Wash.) is among those leading a call for an investigation into the Family Research Council.

A group of House Democrats, in the wake of a report finding the Family Research Council has been granted a special tax status as an “association of churches,” is calling on the Internal Revenue Service to investigate the prominent anti-LGBTQ organization’s designation under the tax code.

The 38 House Democrats — led by Reps. Suzan DelBene (D-Wash.) and Jared Huffman (D-Calif.) — articulate the call in an Aug. 1 letter to the IRS, arguing the Family Research Council is “primarily an advocacy organization and not a church.”

“We understand the importance of religious institutions to their congregants and believe that religious freedom is a cherished American value and constitutional right,” the letter says. “We also believe that our tax code must be applied fairly and judiciously. Tax-exempt organizations should not be exploiting tax laws applicable to churches to avoid public accountability and the IRS’s examination of their activities.”

The impetus for the letter was a July report in ProPublica revealing the Family Research Council — which pushes for legislation against gender reassignment surgery for youth, filed friend-of-the-court briefs in favor of overturning of Roe v. Wade, and pushed for exemptions for individuals refusing to provide services for LGBTQ people over religious objections — is considered an “association of churches” with Tony Perkins, president of the anti-LGBTQ group, as its religious leader.

According to ProPublica, the Family Research Council is among a number of social conservative groups in recent years that have sought and been granted tax status as churches, which shields them from financial scrutiny. As a result, Family Research Council won’t be required to issue an IRS 990 detailing its finances and salaries of key staff members, nor can the IRS initiate an audit of the organization without approval from a high-ranking Treasury Department official, ProPublica reports.

The letter from House Democrats seeks from the IRS: 1) An expeditious review of the status of the Family Research Council; 2) Investigation on whether other political advocacy organizations have obtained church status, but do not satisfy the IRS requirements for churches; 3) Improvement of the review process for organizations seeking church status to ensure that organizations that aren’t churches can’t abuse the tax code; and 4) a determination on whether existing guidance is sufficient to prevent abuse and whether more congressional actions are necessary.

The Washington Blade has placed a call with the Family Research Council and the Internal Revenue Service seeking comment on the letter and calls to review the organization’s tax status.

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