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What the court didn’t do in DOMA case

Many challenges lie ahead in aftermath of historic decisions

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Diane Olson, Robin Tyler, Supreme Court, gay news, Washington Blade, gay marriage, same sex marriage, marriage equality, Proposition 8

On June 26, 2013, the Supreme Court issued two of the most important LGBT-related decisions in U.S. history. (Washington Blade photo by Michael Key)

On June 26, 2013, the Supreme Court issued two of the most important LGBT-related decisions in U.S. history. In Hollingsworth v. Perry the court essentially reinstated marriage for same-sex couples in California (and California has already allowed those marriages) and in Windsor v. United States it held that the federal government is required to recognize marriages between same-sex couples.

It’s also important to note what it did not do. The court did not require that all states recognize valid marriages between same-sex couples, and it did not require that every state allow marriages between same-sex couples. The court left the question of whether same-sex couples have a constitutional right to marry for another day.

There are two major things to consider from the Supreme Court’s marriage decisions. The first is what do these decisions mean for married same-sex couples, and the second is what do these decisions mean for ongoing attempts to eliminate discrimination against the LGBT community? Although it will take some time to find answers, in the few short weeks since the decisions were announced, we have already seen significant movement to recognize all marriages between same-sex couples.

The main question confronting the federal government is whether it will adopt the “place of celebration” (where a couple got married, including foreign countries) or “place of domicile” (where the couple lives) rule to determine whether the marriage is valid. For example, those couples that live in states and jurisdictions that have marriage equality (recognition states), like the District of Columbia and Maryland, will certainly be considered married for all federal purposes as their marriages are valid under both “place of celebration” and “place of domicile” rules. However, married same-sex couples who live in Virginia (a non-recognition state) will have to see whether the “place of celebration” or the “place of domicile” rule will govern the federal benefit they are seeking.

After Windsor, President Obama directed all federal agencies to review their policies to come up with a plan to implement marriage equality on the federal level as soon as possible. A number of federal agencies have already issued their own marriage definition policies. The Office of Personnel Management (OPM) published guidance that says that the “place of ‘celebration’ rule will determine the validity of a marriage for all federal employees. This means that any federal employee married to a same-sex spouse, no matter where the employee lives, is married for federal government purposes.

Federal employees should immediately contact their Human Resources departments to apply for any benefits for which they may now be eligible. The federal government has indicated that the Windsor decision will be considered a “qualifying event” so federal employees have 60 days to revisit their benefit choices.

The United States Citizen and Immigration Services (USCIS) has also said that “place of celebration” will determine the validity of a marriage for immigration purposes. That means that bi-national same-sex married couples, no matter where they currently live, will be treated the same as opposite-sex married couples. In fact, a deportation of a foreign spouse underway prior to Windsor was stopped, and a gay male foreign spouse in Florida has been approved for a green card under the new immigration policy.

Chuck Hagel, the Secretary of Defense, has said that the military will treat all married couples the same, no matter where they got married, using the “place of celebration” rule. This means that military spouses will have rights to health insurance, base housing, ID cards, on-base shopping privileges, burial at Arlington Cemetery and more. Eligibility for Social Security benefits, however, has historically depended on the “place of domicile” rule. We are waiting for further developments in this area.

It seems clear that in the end, the federal government will adopt an across-the-board “place of celebration” rule for eligibility for all federal benefits relating to marriage. Any other policy would be untenable. This policy would give married couples access to more than 1,000 rights and responsibilities on the federal level.

Locally, the University of Maryland has said that as of July 31, 2013, it will treat all married couples, whether same-sex or opposite-sex, equally. Other institutions are also coming out with their own policies on how married same-sex couples will be treated. But, the marriage of a same-sex couple that lives in a “recognition” state (D.C., Maryland and Delaware locally), should be valid for all purposes, state, local and federal. Anything less would be discrimination forbidden under Windsor.

Married couples with children however, should still do second-parent adoptions if they are available, and complete their estate planning as the Windsor decision DOES NOT require all states to recognize any legal relationships based on the couples’ marriages. As before, it is absolutely crucial to obtain court orders granting these legal relationships separate from the marriage.

If you haven’t married, but have been waiting for the fall of DOMA, contact your lawyer to discuss the implications of the Windsor decision for you. Make sure you know all of the implications before you take the big step. If you are married and work for a state government or private employer, and you live in a recognition state — again, D.C., Delaware and Maryland locally — also contact your employer to make sure all of your coverages are what you want. Do this as soon as possible.

Although the Supreme Court cases did not impact the 29 states with constitutional amendments and laws prohibiting marriage equality, Windsor and Perry opened the door for challenges to those laws, and for arguments that those states must recognize valid marriages between same-sex couples. We are already seeing immediate and significant litigation around marriage equality. Marriage equality cases have been filed in Arkansas, Louisiana, Oklahoma, Ohio, and Pennsylvania, and will be filed shortly in Virginia. There is continuing litigation in Michigan, Illinois and New Jersey around these issues.

The fact that same-sex marriages will be recognized on the federal level is, of course, extremely important. But, to me, how the court got to this decision may be even more important because of what the court’s legal analysis means for future cases. Everyone expected DOMA to be struck down, but on the basis of states’ rights — that each state could decide for itself whether it would have marriage equality. But instead of states’ rights, the court based its decision on Equal Protection, a constitutional protection for groups that are targets of social animus. That opens the door for challenges to ANY law discriminating against lesbians and gay men. Even Justice Anton Scalia recognized this. Here’s what he said:

“In my opinion, however, the view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today’s opinion. As I have said, the real rationale of today’s opinion, whatever disappearing trail of its legalistic argle-bargle one chooses to follow, is that DOMA is motivated by ” ‘bare . . . desire to harm'” couples in same-sex marriages. Supra, at 18.  How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status.”

One of the only times I hope he’s right!

Michele Zavos is a long-time lesbian activist attorney and founder and principal of the Zavos Juncker Law Group, PLLC, which practices in all three area jurisdictions.

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Protecting D.C.’s promise: why Kenyan McDuffie deserves our support 

Former Council member is longtime ally

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Former D.C. Council member Kenyan McDuffie in 2023. (Washington Blade photo by Michael Key)

For generations, LGBTQ+ people have come to DC searching for something simple: the freedom to love who they love. I was one of them.

Washington, D.C., is the gayest city in the world. This didn’t happen by accident; It’s the result of generations of organizing, advocacy, and leadership from elected officials who championed the movement for equality, a movement that drew people like me to this city in search of safety and acceptance.

Now, as we approach the June 16 mayoral primary, the LGBTQ+ community will play a decisive role in shaping the city’s future. I believe the candidate our community should rally behind is Kenyan McDuffie, a longtime ally with a proven track record.

Kenyan’s relationship with the LGBTQ+ community began long before it was politically fashionable. In 2012, when he ran for the Ward 5 D.C. Council seat, he sought and earned the support of the Gertrude Stein Democratic Club, the city’s largest LGBTQ+ political organization. At a time before marriage equality was the law of the land, Kenyan stood with us and went on to support the banning of conversion therapy.

But what has always stood out to me about Kenyan’s leadership is his willingness to tackle issues head-on that deeply impact queer families and young people. 

As someone who was recently engaged and is currently navigating pathways to parenthood, I was moved by Kenyan’s leadership to modernize D.C.’s outdated surrogacy laws. For more than two decades, the District criminalized surrogacy agreements, threatening families with fines of up to $10,000 and even jail time. Kenyan helped lead the effort to repeal that law, opening a legal pathway for LGBTQ+ couples and others to build families through surrogacy. Thanks to advances in medicine and policy changes like this one, more LGBTQ+ families are now able to pursue parenthood.

Kenyan has also been a champion for some of the most vulnerable members of our community: LGBTQ+ young people experiencing homelessness. In DC, LGBTQ+ youth represent nearly 40 percent of the city’s homeless youth population. Early in his time on the Council, Kenyan worked with fellow members to dedicate housing beds for LGBTQ+ youth and to strengthen the capacity of the Mayor’s Office of LGBTQ+ Affairs to support community programs. Those investments helped ensure that young people facing rejection or instability had a safer place to turn.

Leadership like this matters, especially as our city faces unprecedented challenges. In addition to being a champion for our community, the next mayor will need to navigate threats from the federal government, a massive reduction of the federal workforce of over 20,000 jobs, an unprecedented wave of restaurant closures, and year-after-year billion-dollar budget shortfalls. 

Today, our city needs a leader whose values never waver and who has delivered real results for all our neighbors. Kenyan McDuffie has shown that kind of leadership throughout his public service career.

D.C. has always been a safe haven for the queer and trans community seeking opportunity, safety, and belonging. That promise is worth protecting and ensuring the next generation can find the same refuge and opportunity we have.

As voters prepare to make an important choice about the city’s future, I believe Kenyan McDuffie is the leader best prepared to carry that promise forward.

That’s why I’m proud to join him and countless others in launching the Out for Kenyan coalition this Thursday, March 26, at Number Nine.

Cesar Toledo is a first-generation queer Latino and an Out Magazine Out100 honoree who has spent over a decade advancing LGBTQ+ equality, equity, and social justice.

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Remembering Jesse Jackson

Civil rights icon supported LGBTQ rights, D.C. statehood

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Rev. Jesse Jackson (Washington Blade archive photo by Jim Marks)

There is no question that Jesse Louis Jackson, Sr. had a significant impact on the civil rights movement, Democratic Party politics and D.C.’s struggle for statehood. After I heard of his death, I took some time to reflect on how our lives had intersected although I met him only once in person.

During the 1970s, sickle cell disease was a celebrated cause in the African-American community. Rev. Jackson was in the vanguard of that advocacy because he had the sickle cell trait. My mother had sickle cell disease and I have the trait. I responded to Rev. Jackson’s exhortation to be involved with fighting the disease and was blessed to have worked for seven years at the Howard University Center for Sickle Disease in its community outreach program.

In 1983, the March on Washington for Jobs, Peace & Freedom was held to celebrate the 20th anniversary of the 1963 March on Washington. Local organizing committees called Coalitions of Conscience were formed to get people involved with the march. I attended the first meeting in D.C. and introduced a resolution that the 20th anniversary program held on the National Mall include a speaker representing the LGBT community. The resolution passed unanimously but the response from the chief organizer of the march, Rev. Walter Fauntroy, was that no such speaker would be permitted. Fauntroy was also the District of Columbia delegate to Congress. Three days before the march, four gay men – all D.C. residents, three of whom were Black – went to meet with Del. Fauntroy to discuss his opposition to having a LGBT speaker on the day of the march. He refused to meet with them and had them arrested. I was one of those arrested.

Our arrests made local and national news. While we were in jail, a conference call was held consisting of representatives of most of the major national civil rights leaders in the nation to discuss having an LGBT speaker at the march. Among those on that call were Coretta Scott King, Ralph Abernathy, Mayor Marion Barry, Dorothy Height; Reverends Joseph Lowery, Walter Fauntroy and Jesse Jackson. The decision was made to give three minutes to a speaker representing the LGBT community. The speaker was Audre Lorde, the African-American lesbian writer, poet, professor and civil rights activist. Jesse Jackson’s presence on that call was critical to her being chosen as a speaker.

In 1984, I was a volunteer in the Jesse Jackson for president campaign in his quest for the Democratic Party nomination. I, along with dozens of volunteers, boarded the bus that left from Union Temple Baptist Church to journey to Alabama to campaign for Rev. Jackson in that state’s primary. My involvement with Jackson’s D.C. campaign led me to visit the Players Lounge for the first time in order to get signatures for Jackson’s D.C. presidential delegate slate and to do voter registration.

Jackson did not win the Democratic presidential nomination in either his 1984 or 1988 campaigns. But his efforts along with Congresswoman Shirley Chisolm’s and Rev. Al Sharpton’s presidential campaigns paved the way for Barack Obama’s historic nomination and victory for president in 2008.

In 1990, Jesse Jackson was elected to be one of D.C.’s United States Senators or what is known as a “shadow senator.” He made it clear that D.C.’s struggle for statehood is not just a political issue but a salient civil and human rights issue. His involvement helped make D.C. statehood a national issue.

I cannot remember the exact year that I finally met Jesse Jackson in person but it was around the turn of the millennium. There was an event taking place in the Panorama Room at Our Lady of Perpetual Help Roman Catholic Church. Rev. Jackson was standing alone on the hill taking in the breathtaking view of D.C. I walked over, introduced myself and  thanked him for what he had done for the D.C. statehood, LGBT rights, and the Democratic Party. Even though he was a major celebrity he gave me a hug as if we were longtime friends. It was a brief conversation but we both agreed to keep praying for a cure for sickle cell disease. That hope is still being kept alive.


Philip Pannell is a longtime Ward 8 community activist. Reach him at [email protected].

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‘Are you on PrEP?’

Md. lawmakers considering bill to expand access to medication

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From left, FreeState Justice Executive Director Phillip Westry and Maryland state Del. Ashanti Martinez (D-Prince George's County) (Courtesy photos)

When we’re out with friends, we ask a question that sometimes surprises people: Are you on PrEP?

PrEP is a medication that reduces the risk of getting HIV by about 99 percent when taken as prescribed. We’re both on it. And we both talk about it openly because too many people in our communities still haven’t heard of it, can’t access it, or have been made to feel like asking for it says something about who they are.

It doesn’t. Taking PrEP is about taking control of your health. It’s that simple.

But getting there wasn’t simple for either of us. Our paths to PrEP looked different.

Del. Martinez learned this firsthand. When he asked his primary care doctor about PrEP, the response wasn’t medical — it was judgment. Instead of a prescription, he got a lecture. He had to leave Maryland entirely and go to Whitman-Walker in D.C. just to get basic preventive care. He serves on the Health Committee and sits on the public health subcommittee. Even he couldn’t access HIV prevention in his own state. That reality was soul-crushing, not just for him, but because he immediately thought about every person in his community who doesn’t have the resources to find another way.

Phillip came to PrEP through his work at FreeState Justice, where he was learning about HIV transmission rates and the gap in PrEP access for queer people of color. Black Marylanders account for 65 percent of new HIV diagnoses but only about 35 percent of PrEP users. Latino Marylanders account for nearly 19 percent of new diagnoses but fewer than 8 percent of PrEP users.

Seeing those numbers, he had to ask himself why he wasn’t on it. When he walked into Chase Brexton’s HIV Prevention clinic in Baltimore, the experience was easy and affirming, exactly what it should be for everyone. No judgment, just care. That’s the kind of experience every Marylander deserves.

A proposed bill would make it the standard in Maryland. HB 1114 would let people walk into their neighborhood pharmacy and access PrEP without waiting months for a doctor’s appointment, remove insurance barriers that slow things down, and connect them to ongoing care. 

Our stories are not unusual. When we talk to friends about PrEP — and we do, regularly — we hear the same things. People who didn’t know about it. People who tried and gave up. People who assumed it wasn’t for them. People who couldn’t afford it or couldn’t find a provider. There’s still misinformation out there, and there’s still stigma. Among women in Maryland, most new HIV diagnoses come from heterosexual contact, but PrEP is still rarely part of the conversation from their doctors.

When we talk to our friends about PrEP, we lead with honesty. Here’s what it does, here’s what it costs, here’s where to go. We talk about the different options: daily pills or long-acting shots. Generic options are available, and in many cases, free. If you’re sexually active, it might be right for you. It’s not a morality question. It’s a health question.

We try to make it feel approachable, because it should be. We answer every question, because sometimes we’re the first person someone has had this conversation with. It’s a conversation between people who trust each other. And it works, but it can only go so far when the system itself is still in the way.

We have the medical tools to virtually end new HIV transmissions. What we need now are the policies to make sure everyone can reach them. At a time when the future of federal HIV prevention programs is under attack, Maryland has both the opportunity and the responsibility to lead.

We’re asking our friends to take charge of their health. We’re asking Maryland to make it possible.

If PrEP sounds right for you, talk to your provider. If you know someone who could benefit, share what you know. And if you want to see Maryland get this right, tell your legislators to support HB 1114.

State Del. Ashanti Martinez represents District 22 in Prince George’s County in the Maryland House of Delegates, where he serves as Majority Whip and sits on the Health Committee. Phillip Westry is the executive director of FreeState Justice, Maryland’s statewide LGBTQ+ advocacy organization.

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