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Court rules lesbian widow must receive survivor’s benefits

Decision invokes DOMA ruling, Ill. civil union law in reasoning

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Sarah Ellyn Farley, Jennifer Tobits, Pennsylvania, Gay News, Washington Blade
Sarah Ellyn Farley, Jennifer Tobits, Pennsylvania, Gay News, Washington Blade

Sarah Ellyn Farley and Jennifer Tobits. (Photo courtesy of the National Center for Lesbian Rights)

A federal court has determined that a lesbian widow is entitled to her late spouse’s benefits partly on the basis that Illinois civil union law is sufficient for federal purposes — a view that differs from the Obama administration’s interpretation of the Supreme Court ruling against the Defense of Marriage Act.

On Monday, the U.S. District Court for the Eastern District of Pennsylvania ruled in a 12-page unsigned decision that Jean Tobits is entitled to survivor’s benefits under the Employee Retirement Income Security Act, or ERISA, following the death of her spouse, Sarah Ellyn Farley, who died of cancer in 2010.

“Windsor makes clear that where a state has recognized a marriage as valid, the United States Constitution requires that the federal laws and regulations of this country acknowledge that marriage,” the decision states. “In light of that, this Court finds that Ms. Tobits is Ms. Farley’s ‘Spouse’ pursuant to the terms of the Plan.”

The lawsuit, known as O’Connor v. Tobits, came about in 2011 as the result of Cozen O’ Connor PC, the law firm where Farley worked, filing an interpleader action. Both Tobits and Farley’s parents, who didn’t recognize the marriage of her lesbian daughter, requested payment of the Pre-Retirement Survivor Annuity after Farley’s death that was available under the firm’s profit sharing plan.

Among those saying that Tobits had a right to the benefits and not Farley’s parents was the National Center for Lesbian Rights, which filed a brief on behalf of Tobits in 2011.

Chris Stoll, a senior staff attorney at NCLR, praised the court for its ruling and said it had implications for employers nationwide.

“This is not just a vindication for Jennifer, it is a tremendous victory for every married same-sex couple,” Stoll said. “Employers will no longer be able to hide behind DOMA to avoid providing equal retirement benefits to the same-sex spouses of their employees.”

In the aftermath of the ruling striking down Section 3 of DOMA by the Supreme Court, which determined plaintiff Edith Windsor had a legal marriage because she legally wed Thea Spyer in Canada, the district court determined Tobits and Farley had a legal marriage recognized under federal law because they also married in Canada in 2006.

But the district court buttressed its reasoning by noting that the couple lives in Illinois, which has civil unions, but not same-sex marriage. The ruling notes in a footnote that under state law, Illinois can recognize same-sex marriages solemnized in other jurisdictions as civil unions.

“Indeed, because the Illinois probate Court recognized Ms. Tobits as the sole heir to a civil union, it accepted as valid the marriage between Ms. Tobits and Ms. Farley that took place in Canada in 2006,” the ruling states. “This Court takes judicial notice of these decisions as bearing a direct relation to matters at issue before this Court.”

Doug NeJaime, a gay law professor at the University of California, Irvine, took particular note of the incorporation of Illinois civil unions law into its reasoning.

“The interesting thing here is that the court finds support for the inclusion of the same-sex spouse based on the couple’s domicile being Illinois, a civil union state,” NeJaime said. “In this sense, the court is suggesting that because civil union statutes give those in civil unions the rights of spouses, that is enough for federal purposes as well.”

That interpretation is different from what the Obama administration has reasoned with regarding civil unions in the aftermath of the Supreme Court ruling against DOMA. The U.S. Office of Personnel Management has determined that gay federal employees must enter into a same-sex marriage to receive benefits for their spouses. Those in civil unions or domestic partnerships aren’t eligible.

NeJaime said the reasoning in the decision could place the court at odds with the Obama administration.

“The court is saying that the couple with a marriage from Canada residing in Illinois should be treated like spouses, but this does lead to the potential conclusion that those in civil unions in general should be treated like spouses,” NeJaime said.

NCLR’s Stoll acknowledged the court took note of the civil union law, but said it bases most of its reasoning on Tobits and Farley’s marriage in Canada.

“The judge noted that Illinois respected their relationship and gave them all of the same rights and benefits as other married couples, but his ruling does not appear to depend on that fact,” Stoll said. “A couple that was married in any jurisdiction that allows it should be treated the same as any other married couple for purposes of federally mandated employee benefits, regardless of where they live.”

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Politics

Gay members of Congress challenge Vance over the ‘normal gay guy vote’

GOP vice presidential nominee spoke to Joe Rogan on Thursday

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2024 GOP vice presidential candidate and U.S. Sen. J.D. Vance (Ohio) speaks at the Republican National Convention (Washington Blade photo by Michael Key)

In comments to the Washington Blade on Friday, two gay members of Congress rebuffed claims by the Republican vice presidential candidate, U.S. Sen. JD Vance of Ohio, that he and former President Donald Trump have “the normal gay guy vote.”

A poll of LGBTQ voters in August by the Human Rights Campaign showed the community overwhelmingly supports the Democratic ticket, led by Vice President Kamala Harris and Minnesota Gov. Tim Walz, by a margin of 74-7.5 percent.

Nevertheless, Vance told podcaster Joe Rogan during an interview on Thursday that, “I wouldn’t be surprised if me and Trump won, just, the normal gay guy vote, because, they just wanted to be left the hell alone.”

The senator continued, “Now you have all this crazy stuff on top of it that they’re like, ‘No, no, we didn’t want to give pharmaceutical products to 9-year-olds who are transitioning their genders.’”

GayU.S. Rep. Mark Pocan (D-Wis.), chair of the Congressional Equality Caucus, told the Blade “I don’t trust JD Vance on a lot of things, and I sure as hell don’t trust him to know what’s ‘normal.'”

“JD has spent his time as both a candidate and Senator attacking the rights of the LGBTQI+ community, and he has no idea what “normal gays” go through because of bullies like him and Trump,” Pocan said.

He added, “‘Normal’ gays are like ‘normal’ non-gays — we care about our families and we care about our country. My guess is the vast majority are voting for Kamala Harris because they know what’s at stake for our community and our country.”

Over the phone, U.S. Rep. Robert Garcia (D-Calif.), a gay co-chair of the Congressional Equality Caucus, said the suggestion that “gay people are gonna somehow, en masse, start voting for Donald Trump and JD Vance, who are completely anti-gay, anti-LGBTQ and [have been] saying horrible things about the community” is “so stupid” and “ridiculous.”

“There might be, like, a handful of these MAGA Log Cabin folks that, quite frankly, are few and far between” the congressman said, referring to the LGBT conservative group Log Cabin Republicans, “but the support that Kamala Harris has in the gay community is is huge” and these voters are going to turn up on election day.

“And then, of course, this idea that [Vance is] somehow separating out ‘normal,’ regular gay guys,” Garcia said, “shows their complete lack of awareness about our community, what motivates us,” and “the solidarity we have together — we’re a close community; we support each other.”

“Trying to separate us is not going to work in these last few days, it’s completely desperate and just completely out of touch,” he said.

Asked whether he believes the message might appeal to some gay men, or lesbian or bisexual folks for that matter, at a time when trans rights have become a salient political issue, Garcia emphasized that by and large, “Because of our own identity and struggles, we support our members of the trans community and trans families and we understand how difficult that is for folks.”

“Most of us in the community know people that are trans, have trans friends, have marched for rights with them, have been to fundraisers, raising money for causes, for the community with them,” the congressman said. “So they’re part of of our community.”

“We’re not going to allow Donald Trump and JD Vance try to separate them out,” he said. “I think that is something that conservatives try to do is to somehow say that they’re okay with, you know, the LGB, but not with trans people, and that’s unacceptable to us.”

Garcia added, “It should be unacceptable to all members of our community. We should never allow them to separate us and to damage the solidarity that we have with people that are our friends and that are being attacked every day.”

Asked about the Trump campaign’s last-ditch outreach to gay conservatives, Garcia said the “Log Cabin types should look in the mirror and ask themselves what the fuck they’re doing and what the fuck they’re thinking because this is absolutely destructive to anyone that they care about.”

He continued, “this idea that they can still blindly support Donald Trump who wants to overthrow our government, move us backwards, attack our community, install a Supreme Court that will take away our rights — it’s insane, total insanity.”

“That’s why overwhelmingly our community supports Kamala Harris,” Garcia said. “We’ve done a lot of events with the Out for Harris team and get out the vote efforts, and the energy is there, people are excited, gay people are turning out and showing up, and we’re not going to be separated out by weirdos like JD Vance.”

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Meet the LGBTQ candidates running in key races from U.S. Senate to state houses

Baldwin in tight contest; McBride poised to make history in Delaware

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LGBTQ candidates to watch this election include (from top left, clockwise): former U.S. Rep. Mondaire Jones (D-N.Y.), U.S. Rep. Angie Craig (D-Minn.), U.S. Rep. Chris Pappas (D-N.H.), U.S. Rep. Mark Takano (D-Calif.), Delaware state Sen. Sarah McBride (D), U.S. Rep. Sharice Davids (D-Kansas), U.S. Rep. Becca Balint (D-Vt.) and U.S. Rep. Eric Sorenesen (D-Ill.). (Washington Blade photos by Michael Key)

U.S. Sen. Tammy Baldwin (D-Wis.) became the first openly LGBTQ senator with her election in 2012, having previously served as U.S. representative from Wisconsin’s 2nd Congressional District as the first non-incumbent LGBTQ member elected to the chamber. She is running against Republican mega-millionaire Eric Hovde, whose campaign has targeted her sexual orientation with negative advertising, in a race that Cook Political Report considers a toss-up.

U.S. Sen. Tammy Baldwin (D-Wis.) (Washington Blade file photo by Michael Key)

Delaware State Sen. Sarah McBride (D) became the first openly trans state senator and the highest-ranking trans official in U.S. history with her election in 2020, having previously worked in LGBTQ advocacy and authored a memoir. She is running for Delaware’s sole seat in the U.S. House of Representatives, where she would be the first transgender Member of Congress. She is favored to win her race.

Delaware state Sen. Sarah McBride (Washington Blade file photo by Daniel Truitt)

Mondaire Jones served as U.S. representative for New York’s 17th Congressional District from 2021 to 2023, during which time he was often described as a rising star in the progressive wing of the Democratic Party, serving on the Progressive, Black, and Equality Caucuses. Jones was one of the first two openly gay Black members of Congress. He is running to reclaim his seat representing NY-17.

Mondaire Jones (Washington Blade file photo by Michael Key)

Gay Democratic U.S. attorney Will Rollins is gunning for U.S. Rep. Ken Calvert’s (R-Calif.) seat after narrowly losing to the GOP incumbent in 2022. His victory is key for Democrats to retake control of the House, with Cook Political Report characterizing their race as a toss-up and POLITICO writing it will be one of the most “closely watched and expensive battleground slugfests in the country.”


U.S. Rep. Angie Craig (D) is the first LGBTQ member of Congress from Minnesota and the first lesbian mother to serve in either chamber. In the House, Craig has opposed Republican-led efforts to implement anti-LGBTQ policies, especially in schools. She is facing off against Republican Joe Teirab in a race that, according to Cook Political Report, is shaping up in her favor/lean Democratic.

U.S. Rep. Angie Craig (D-Minn.) (Washington Blade file photo by Michael Key)

U.S. Rep. Eric Sorensen (D) is a former meteorologist and the first openly gay member of Congress from Illinois. While he is the first Democrat to represent portions of the state’s 17th Congressional District in decades, particularly the towns of Rockford and Peoria, Sorensen’s race is “likely” Democratic, per Cook Political Report. He is running against Republican Joe McGraw, a judge and former prosecutor.

U.S. Rep. Eric Sorensen (D-Ill.) (Washington Blade file photo by Michael Key)

U.S. Rep. Sharice Davids is a former mixed martial artist and attorney serving as the first Democrat to represent a Kansas congressional district in Congress in more than a decade. She is also the first LGBTQ Native American and one of the first two Native American women (along with Interior Secretary Deb Haaland) elected to the chamber. Her race is “likely” Democratic according to Cook Political Report.

U.S. Rep. Sharice Davids (D-Kansas) (Washington Blade file photo by Michael Key)

U.S. Rep. Chris Pappas (D) is the first openly gay man from New Hampshire to serve in Congress following his election in 2018 and reelection in 2020 and 2022. He is running against Republican Russell Prescott in a race that Cook Political Report expects will be “likely” Democratic. New Hampshire Public Radio called Pappas the 1st Congressional District’s most successful Democrat in more than four decades.

U.S. Rep. Chris Pappas (D-N.H.) (Washington Blade file photo by Michael Key)

There are four other openly LGBTQ members of Congress, all serving as co-chairs of the Equality Caucus under chair Mark Pocan, Democratic U.S. representative from Wisconsin: U.S. Reps. Robert Garcia and Mark Takano, Democrats from California, Ritchie Torres (D-N.Y.), and Becca Balint (D-Vt.). They are all expected to win their bids for reelection.

Gay Pennsylvania State Rep. Malcolm Kenyatta (D) is running for auditor general of the Keystone State, squaring off next week against incumbent Republican Tim DeFoor and three third-party candidates. Appointed by President Joe Biden to chair the Presidential Advisory Commission on Advancing Educational Equity, Excellence and Economic Opportunity for Black Americans, Kenyatta is considered a rising star in the Democratic Party.

Tampa native and mother of two teen boys, Ashley Brundage has built programs to help educate people and facilitate economic empowerment for entrepreneurs, earning a “Spirit of the Community Award” for her work from Florida Gov. Ron DeSantis. And if she wins her race next week to serve in the Florida House of Representatives, Brundage would be the state’s first out transgender elected official.  

Aime Wichtendahl is the first transgender official elected in the state of Iowa, serving on the city council of Hiawatha, a suburb northwest of Cedar Rapids, since 2015. Her work has focused on expanding infrastructure, reducing property taxes, and helping small businesses. If elected to the Iowa House of Representatives next week, Wichtendahl would be Iowa’s first openly trans state legislator.

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Trump, Harris make final pitches to voters with days until election

More than 60,000 turn out for vice president’s Ellipse speech

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Former President Donald Trump and Vice President Kamala Harris (Washington Blade photo by Michael Key)

Former President Donald Trump and Vice President Kamala Harris are making their final pitches in the week before Election Day, delivering closing arguments while their campaigns work to get out the vote.

On Friday, the candidates will make competing appearances in the swing state of Wisconsin, where polls show their race in a dead heat, as is the case in the other six battlegrounds. Experts expect 2024 might be the closest presidential race in modern American history.

On Monday, the Republican nominee’s campaign was beset with a scandal of its own making after a comic attacked Puerto Rico as “a floating island of garbage” during his set at Trump’s rally in Madison Square Garden.

The event also featured anti-Semitic and anti-Arab language, sexism directed at Harris, and other offensive remarks — a display that The New York Times dubbed “a closing carnival of grievances, misogyny, and racism.”

At the same time, the trans community is in the crosshairs of negative advertising by the Trump team and Republican allies, commercials that aired during NFL games on Sunday in a last-minute push to get men into the voting booth.

As the Republican nominee said himself during his rally in New York on Monday, “Get your husband off the couch. The football game doesn’t mean a damn thing. You got to get out and vote.”

Trump’s ads show the vice president with Rachel Levine, the highest ranking openly trans official, assistant secretary for health at the U.S. Department of Health and Human Services, and Sam Brinton, a genderfluid former official at the U.S. Department of Energy.

Brinton was arrested for allegedly stealing luggage from airport baggage carousels.

“Kamala is for they/them,” the ads proclaim, while “President Trump is for you.”

As the Times wrote, the intention was clearly for “viewers to recoil from images of Ms. Harris alongside those of people who plainly do not conform to traditional gender norms, to try to portray Ms. Harris herself as out of the ordinary.”

For her part, in a speech Tuesday night that drew more than 60,000 supporters, Harris highlighted the differences between her candidacy and her opponent’s, between her record of service and her opponent’s, and between her vision for America and her opponent’s.

The vice president spoke from the Ellipse, the park south of the White House where Trump rallied his supporters on Jan. 6, 2021 before they ransacked the U.S. Capitol.

“It’s really a reminder of the gravity of the job, how much a president can do for good and for bad, to shape the country and impact people’s lives,” Harris campaign chair Jennifer O’Malley Dillon said on Tuesday.

“But it’s also a stark visualization of probably the most infamous example of Donald Trump and how he’s used his power for bad, really focusing on himself and spreading division and chaos and inciting a mob to try to maintain his own power and put himself over the country,” she said.

From the outset, the vice president’s campaign sought to convey joy, along with the idea that the career prosecutor has always worked on behalf of the American people throughout her several decades of public service.

By contrast, Trump has earned criticism for calling Democrats and political opponents “the enemy from within,” language that recalls some of the world’s most notorious autocrats.

Stark differences on LGBTQ rights

LGBTQ advocacy groups like the Human Rights Campaign have lined up behind Harris’s bid for the White House, touting her record of supporting the community well before it was politically expedient to endorse rights like same-sex marriage.

HRC President Kelley Robinson said, “Vice President Kamala Harris is a trailblazer and has been a champion for LGBTQ+ equality for decades: from leading the fight in San Francisco against hate crimes and her work in California to end the so-called gay and transgender ‘panic defense’ to her early support for marriage equality and her leadership serving as our vice president.”

“Convicted felon Donald Trump has already shown that he aims to destroy democracy and divide the country in his quest for power,” Robinson said.

HRC has chronicled Trump’s anti-LGBTQ record, noting that he “Banned openly transgender military service, discriminated against LGBTQ+ students, argued businesses can post signs refusing service to LGBTQ+ customers, and more.”

The former president also appointed three U.S. Supreme Court justices who voted to overturn the reproductive freedoms in place since Roe v. Wade was decided in 1973 and to allow businesses to discriminate against LGBTQ customers, the group wrote.

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