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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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Opinions

DC To Host 1st National TDOV Gala on Easter Sunday

Trans USA National Pageantry and the National Center for Transgender Equality (NCTE) will host the 1st Annual Blossom Gala at Hook Hall.

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The first International Trans Day of Visibility (TDOV) celebration was held 15 years ago, with the goal of addressing the major concern that the only well-known trans-centered day was the Transgender Day of Remembrance, which mourned the murders of transgender people but did not acknowledge and celebrate living members of the transgender community. On March 31, Trans USA National Pageantry and the National Center for Transgender Equality (NCTE) will host the 1st Annual Blossom Gala at Hook Hall, which will serve as the culminating event of their TDOV programming in Washington, DC. 

Dylan Drobish (also known as Dylan B. Dickherson White), National Director at Trans USA, offered the following: “It is our hope that Blossom will serve as a reminder not just of the battle we face every day but also of the beauty, excellence, intellect, and resilience of transgender Americans. We believe that this event is especially important given the increased backlash and violence against our community in the last few years alone, with nearly 500 anti-trans bills under consideration across 41 states as of March. However, Blossom—and TDOV itself—is a celebration held in defiance of the idea that trans lives are only worthy of headlines once they have ended.”

Preceded by an impactful, inspiring rally at the national mall (11:00 AM to 3:00 PM) featuring Angelica Ross of Pose and AHSBlossom is a fundraising initiative that blends keynote speakers, a Q&A panel discussion with national leaders in the movement for transgender equality, and the artistry of drag with CHERRY BOMB–an all-trans drag showcase headlined by trans icon, activist, and Drag Race pioneer Monica Beverly Hillz. This pivotal event will also serve as the official public launch of the TRANSform the Vote initiative, which aims to inspire transgender people and allies to make their voices heard at the ballot box.

But make no mistake. Blossom is a celebration, and the event organizers have pulled out all the stops to ensure that ticket prices remain accessible without sacrificing the magic of a true gala experience. For truly gram-worthy “pink carpet” photos, all attendees are invited to “dress to impress” with their interpretation of a timely theme that celebrates the beauty of coming into one’s own as a visible member of the trans, non-binary, and gender non-conforming community.  

The event comes at a pivotal time for both the community and the organizations seeking to protect it: This summer, NCTE will officially merge with Transgender Legal Defense and Education Fund (TLDEF) to create Advocates for Trans Equality, doubling their ability to lead the next chapter of the transgender rights movement. This November, Trans USA will welcome over 80 representatives from across the country to their national competition, which will for the first time also feature a national conference and exposition solely focused on the trans and non-binary community. While monumental, these 2024 events come with unprecedented challenges, as many major corporations and grant programs refuse to provide funding related to “controversial social or political issues”, especially in an election year. 

Despite these challenges, celebratory events like Blossom are, unsurprisingly, now more important than ever, with trans lives having been politicized to such a polarizing extent. Drobish, a former Mr. Trans USA himself offered the following: 

“‘Narrative identity’ refers to the idea that our identities are formed from the internal stories we tell about ourselves (and our interpretation of them). Organizations like Trans USA and NCTE are here to help rewrite the narrative that gets passed down to the next generation of trans and non-binary folks. My message to anyone involved with Trans USA or the movement in general has always been that you are the author of your story—the story that gives your life meaning and purpose—and you get to choose how it’s told. Are you the hero or the victim? Are you the agent or the object? Are you the one telling your story, or is someone else doing all the talking? It’s 2024, and it’s time to take the pen back. Because true visibility isn’t about being seen; it’s about making others feel seen. Seen enough to BLOSSOM.” 

Tickets for the Blossom gala start at just $15, but VIP guests ($100) will receive access to a premium open bar from 6:00 PM to 9:00 PM, light hors d’oeuvres, and prime seating, in addition to the 20-entertainer showcase with a Drag Race headliner! While doors open at 4:30 PM for the event, advance purchase online is strongly recommended by the organizers, as only a limited number of these VIP tickets are available.

-Dylan Drobish (National Director, Trans USA National Pageantry; Mr. Trans USA 2022, Mr. Freddie’s 2019

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Opinions

Attacking Jews is latest Trump outrage

Anyone who supports equality and peace must vote for Biden

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(Washington Blade file photo by Christopher Kane)

Calling out the Jewish community in the United States as Trump did, is both dumb, and anti-Semitic. The Jewish community has been a Democratic constituency for many years, and attacking them won’t get them to vote for him.

It is a difficult time for many Jews in the world today. I being one of them. I am a strong supporter of Israel, but support Sen. Chuck Schumer (D-N.Y.), who believes there will never be peace in the Middle East as long as Netanyahu and his government are in control. Israel cannot keep annexing West Bank land, which should be part of a Palestinian state if we can get to a two-state solution. In fact, they must draw back the settlements now there. At the same time, like Schumer, I believe both Netanyahu and Hamas have to go. Being anti-Netanyahu is not being anti-Israel, just as being anti-Trump is not being anti-United States, or wanting Hamas to go, is not being anti-Palestinian. 

Attacking Jews is just one more outrageous thing coming out of Trump’s mouth. He is a notorious sexist, racist, homophobic, pig. He is an old man who can’t control his mouth and continues to spout nonsense. His apparently limited brain power is tied up in disgusting views of the world and individuals. He mocks those with disabilities like he did to a New York Times reporter, and mocks President Biden for his stutter. There was a recent column in the Washington Post reminding people Trump’s father had Alzheimer’s. I think we may be seeing the disease manifest itself in Trump. 

I have written this election is between two older men. I myself am older, and understand one often forgets a name, a date, or an event. Having just written a memoir, which I hope will be published in May, in its preface I say “these are dates and events as I remember them.” But as neuroscientist Charan Ranganath recently wrote in the Washington Post, that in no way limits how a person can understand complex issues, or in my case work as a consultant and research and write weekly columns. For a president, especially one who is older, it is important for us to know who is surrounding him or her. I am definitely more secure knowing those who will be around and advising President Biden, versus those around Trump. No one person alone, whatever their age, can handle all the issues facing a president.

Whether you are a Jew supporting Israel, a Muslim supporting the Palestinian people, or someone like me supporting both, you are better off with President Biden. If you support the Palestinian people having their freedom, then Trump must strike fear in your heart, after all, he is the one who moved the American embassy to Jerusalem. 

The idea of electing a man convicted of fraud in his business dealings, found liable for sexually mistreating a woman, and who faces another 88 criminal counts, is ludicrous. It actually says as much about the people who would vote for him, as it does about Trump. A man who brags about taking away the right of women to control their own body, and healthcare, doesn’t deserve the vote of any woman. A man who opposes equal rights, affirmative action, and saw good people on both sides in Charlottesville, doesn’t deserve the vote of any Black American. A man who opposes any forgiveness of student loans, denies climate change, opposes making community college free, doesn’t deserve the vote of any young person. 

It amazes me when people compare how things were four years ago to today, and say they were better then. A time you couldn’t find toilet paper on grocery shelves, 1,000 people a day were dying of COVID, the Dow Jones was at 19,000 and today it’s at 39,000. The country was hemorrhaging jobs and in the last three years 13 million have been created. Wages are higher and unemployment lower. 

Of course, as President Biden says, we need to do more. He is doing it, Trump didn’t. Trump gave a $2 trillion tax cut to the wealthy, increasing the national debt. He pledges to do it again. Biden passed a massive infrastructure bill, now creating thousands of jobs building and repairing bridges and roads, in every state. He passed the Chips and Science Act, recently announcing new chip factories in four states, creating thousands of new construction and manufacturing jobs. Those factories will change the U.S. from an importing country, to a producing one. That is some of the real change Biden has brought about. 

Trump talks big, but never produced; Biden is producing for the American people, and will continue to do so.

Peter Rosenstein is a longtime LGBTQ rights and Democratic Party activist. He writes regularly for the Blade.

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Letter-to-the-Editor

Banning the Rainbow Flag: the latest act of GOP madness

Prohibition included in government spending bill the president signed

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The Progress Pride flag flies in front of the U.S. Embassy in Berlin on July 22, 2022. (Washington Blade photo by Michael K. Lavers)

The Republican agenda is an obvious one: Distract from real issues by assaulting the most vulnerable. That’s why they have focused their hatred on the LGBTQ+ community. After years of legislating book bans, curriculum censorship, bathroom restrictions and withholding medically needed gender therapy, their latest act is signature Republican cruelty: For a crucial trillion-dollar budget that would prevent a government shutdown, the GOP slipped in a measure to ban the display of Rainbow Flags at U.S. embassies all over the world.

This is not an act of mere symbolism. In too many countries, being queer is punishable by imprisonment or death. Measures like this give a green light to violence and homophobia both at home and abroad. It places more LGBTQ+ people at tangible risk. It is an outrageous abuse of the political process.

This cynical political maneuver is typical of the GOP, the Party of Destruction. But equally egregious is that President Biden and Democrats approved the budget, knowing the poison pill line item that had already been added.

Now, President Biden vows to repeal the embassy flag ban measure. We will hold him to his vow. Will he expend the political capital necessary to make the repeal happens? We must remember that he and the Congress capitulated to a small group of GOP manipulators and, in this instance, saw the global LGBTQ+ community as expendable.

The Democratic Party positions itself as an ally to the LGBTQ+ community. They must hold their ground. They must represent and defend all of us. Otherwise, an emboldened GOP, led by Trump, will only escalate their merciless attacks on our vulnerable communities.”

Charles Beal is president of the Gilbert Baker Foundation and the Save the Rainbow Flag Campaign.

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