News
Will Obama speak out again on marriage lawsuits?
Many advocates would welcome continued participation
From left, lawyer David Boies , plaintiffs Jeff Zarillo, Paul Katami, Kris Perry, Sandy Stier and lawyer Ted Olson at the HRC National Dinner. Olson and Boies say they’d welcome President Obama’s participation in their lawsuit (Washington Blade photo by Michael Key).
Amid a frenzy of new marriage equality lawsuits making their way to the Supreme Court, some LGBT advocates say continued participation from the Obama administration in litigation would boost their chances for success.
One advocate eager for the administration to continue its participation in litigation seeking marriage equality is Evan Wolfson, president of Freedom to Marry.
“There are 20-some freedom to marry cases underway around the country now, including the two in Virginia, and President Obama’s and the Justice Department’s support for the freedom to marry and constitutional guarantees should absolutely be part of all of them,” Wolfson said.
Because the Obama administration isn’t a party to any of the lawsuits pending, under ordinary circumstances the administration would participate by filing a friend-of-the-court brief before the courts.
But at this stage, some legal experts who spoke to the Washington Blade are taking a more passive stance on whether the Obama administration should take part, saying they’d “welcome” help from the administration’s lawyers without issuing an overt call for action.
Ted Olson and David Boies, the legal duo that brought marriage equality to California by challenging Proposition 8, articulated this view during a conference call with reporters last week when asked by the Washington Blade if they want the administration’s support in Bostic v. Rainey, the lawsuit in Virginia they joined last week.
Boies, the Democratic half of the legal team representing the American Foundation for Equal Rights, said the administration’s participation would be welcome because “the views of the administration are important.”
“Exactly when they will get involved and how they will get involved and what stage they will get involved is something that is obviously up to the administration,” Boies said. “Whether they will decide to wait until we get to the Supreme Court or express views earlier is up to them. But whenever they come in, their support would be welcome.”
Boies’ comments during the conference call follow an endorsement of participation from the Obama administration in his lawsuit during a National Press Club event earlier in the day.
Echoing that sense was Olson, the Republican half of the legal duo that presented the case against Prop 8 during oral arguments before the Supreme Court.
“To have the president’s imprimatur on this issue is so very, very important to the court,” Olson said. “There are institutional reasons for why the Justice Department with the president gets in cases at particular times and we’ll wait till what they decide the right time is, but we very much welcome their support in this case.”
The administration has taken part in previous marriage lawsuits. When the case against Prop 8 came before the Supreme Court, the Justice Department filed a friend-of-the-court brief in favor of plaintiffs and sent U.S. Solicitor General Donald Verrilli to take part in oral arguments before the Supreme Court.
Although the administration didn’t argue the U.S. Constitution guarantees marriage rights for gay couples nationwide, it did contend Prop 8 was unconstitutional and suggested states that offer domestic partnerships should have to afford full marriage rights to gay couples.
The administration’s participation in cases against the Defense of Marriage Act has been more extensive. After announcing it would no longer defend the law in court, the administration filed briefs against the anti-gay law and sent Justice Department lawyers to argue against it in district courts, appellate courts and the Supreme Court.
The Bostic case is but one pending marriage equality lawsuit. According to a tally provided by Lambda Legal, there are 35 marriage lawsuits before 19 states. Just last week, Lambda filed an additional federal lawsuit seeking marriage equality in West Virginia.
Suzanne Goldberg, a lesbian and co-director of Columbia University’s Center for Gender & Sexuality Law, said the involvement from the administration in the marriage lawsuits would reinforce that “the lives of all Americans are deeply affected when states discriminate actively against some of their constituents.”
“The Justice Department’s participation puts additional moral force behind the claims for equality and fairness that gay and lesbian couples make in these cases,” Goldberg continued. “In that sense, the federal government’s participation in state law challenges can be important and helpful, but even if it does not participate, it is also important and helpful that the administration is on record decrying the injustice of unequal marriage rules.”
But the sense that the Obama administration should file additional friend-of-the-court briefs in the marriage lawsuits isn’t universal.
Roberta Kaplan, a lesbian attorney at Paul & Weiss who argued against DOMA before the Supreme Court, said she’s unsure additional friend-of-the-court briefs are necessary.
Courts already know the Justice Department’s position in the aftermath of the Perry case, Kaplan said, and filing additional briefs in every marriage lawsuit out there would be “frankly, a logistical pain in the butt for them.”
“What they said in Perry pretty much answers the question,” Kaplan said. “Frankly, a court knows what their position is because they’ve said it. It’s the same issue…There should be no mystery to anyone what their position is.”
Kaplan said if the administration would participate, chances are it would happen at the appellate or Supreme Court level.
“I’m sure at the Supreme Court, when and if one of these cases gets up there, they will be asked to participate and they will,” Kaplan said. “At the appellate courts, I think it pretty much depends on which case and whether they’re going to have a policy of putting in the same brief in 20 different cases that all say the same thing when they’ve already done it once.”
The Justice Department hasn’t responded to repeated requests for comment. The answering machine at the public affairs line says it will respond to calls in the aftermath of the government shutdown.
The administration may not be able to participate in a marriage equality case as long as the government remains closed. According to the shutdown plan on the Justice Department website, civil litigation, the category of litigation for marriage lawsuits, will be “curtailed or postponed.”
“Litigators will need to approach the courts and request that active cases, except for those in which postponement would compromise to a significant degree the safety of human life or the protection of property, be postponed until funding is available,” the website states. “If a court denies such a request and orders a case to continue, the government will comply with the court’s order, which would constitute express legal authorization for the activity to continue.”
But if the Obama administration were to file a brief in a marriage case before an appellate court, the one for which the opportunity is coming soon is in the case challenging the same-sex marriage ban in Nevada known as Sevcik v. Sandoval. The case, filed by Lambda, is pending before the U.S. Ninth Circuit of Appeals and is one of the cases that has thus far advanced the furthest. Friend-of-the-court briefs are due Oct. 25.
Lisa Hardaway, a Lambda spokesperson, said the attorney working on the case would welcome support from the administration.
“Tara Borelli, our lead attorney on the Sevcik matter, says that we would welcome a brief from the Obama administration,” Hardaway said.
Considering Lambda in the Sevcik case is arguing the ban on same-sex marriage in Nevada is unconstitutional because the state is relegating gay couples to second-class domestic partnerships, the case seems like a natural fit for an administration that has previously said all civil union states should offer marriage to gay couples.
But Kaplan said the more interesting question is whether the administration will articulate a response in the marriage lawsuits that are contending a state must recognize a same-sex marriage from another jurisdiction. Among these cases is Whitewood v. Corbett, the marriage lawsuit pending in Pennsylvania.
“I think the more interesting issues are, frankly, like when the issues come up about recognition…of marriages in states that don’t permit,” Kaplan said. “That at least presents a different question than something they’ve already put out.”
Chad Griffin, president of the Human Rights Campaign, said “it goes without saying” that he shares Olson and Boies’ views and predicted the Obama administration would come on board based on its previous actions and stated commitment to LGBT rights.
“The administration not only stopped defending the Defense of Marriage Act, as you know, but weighed in as we all hoped they would, and encouraged them to, in the Prop 8 case, going the distance there in that case before the Supreme Court,” Griffin said. “And again, we’re just announcing this case today and it still has a distance to go, but I’m optimistic that at the right time, the administration will be there in support of this.”
State Department
Senate confirms Marco Rubio as next secretary of state
Fla. Republican will succeed Antony Blinken
The U.S. Senate on Monday confirmed U.S. Sen. Marco Rubio (R-Fla.) to become the next secretary of state.
The vote took place hours after President Donald Trump’s inauguration. The Senate Foreign Relations Committee on Monday advanced Rubio’s nomination before senators approved it by a 99-0 vote margin.
The promotion of LGBTQ and intersex rights abroad was a cornerstone of the Biden-Harris administration’s foreign policy.
Rubio in 2022 defended Florida’s “Don’t Say Gay” law that Republican Gov. Ron DeSantis signed. The Florida Republican that year also voted against the Respect for Marriage Act that passed with bipartisan support.
Rubio during his Jan. 15 confirmation hearing did not speak about LGBTQ rights.
Politics
Trump previews anti-trans executive orders in inaugural address
Unclear how or when they would be implemented
President Donald Trump, during his inaugural address on Monday, previewed some anti-trans executive orders he has pledged to sign, though it was not yet fully clear how and when they would be implemented.
“This week, I will also end the government policy of trying to socially engineer race and gender into every aspect of public and private life,” he said. “Today, it will henceforth be the official policy of the United States government, that there are only two genders, male and female.”
The president added, “I will sign an order to stop our warriors from being subjected to radical political theories and social experiments, while on duty. It’s going to end immediately.”
After taking the oath of office inside the U.S. Capitol building, Trump was expected to sign as many as 200 executive orders.
On issues of gender identity and LGBTQ rights, the 47th president was reportedly considering a range of moves, including banning trans student athletes from competing and excluding trans people from the U.S. Armed Forces.
NBC News reported on Monday, however, that senior officials with the new administration pointed to two forthcoming executive orders — the official recognition of only two genders, and “ending ‘radical and wasteful’ diversity, equity and inclusion programs inside federal agencies.”
With respect to the former, in practical terms it would mean walking back the Biden-Harris administration’s policy, beginning in 2022, of allowing U.S. citizens to select the “x” gender marker for their passports and other official documents.
“The order aims to require that the federal government use the term ‘sex’ instead of ‘gender,’ and directs the State Department and the Department of Homeland Security to ‘ensure that official government documents, including passports and visas, reflect sex accurately,'” according to NBC.
Additionally, though it was unclear what exactly this would mean, the first EO would take aim at the use of taxpayer funds for gender-transition healthcare, such as in correctional facilities.
The Human Rights Campaign in a press release Monday indicated that a “fulsome review of executive actions” is forthcoming, but the group’s President Kelley Robinson said, “Today, the Trump administration is expected to release a barrage of executive actions taking aim at the LGBTQ+ community instead of uniting our country and prioritizing the pressing issues the American people are facing.”
“But make no mistake: these actions will not take effect immediately,” she said.
“Every person deserves to be treated with dignity and respect in all areas of their lives,” Robinson said. “No one should be subjected to ongoing discrimination, harassment and humiliation where they work, go to school, or access healthcare. But today’s expected executive actions targeting the LGBTQ+ community serve no other purpose than to hurt our families and our communities.”
She continued, “Our community has fought for decades to ensure that our relationships are respected at work, that our identities are accepted at school, and that our service is honored in the military. Any attack on our rights threatens the rights of any person who doesn’t fit into the narrow view of how they should look and act. The incoming administration is trying to divide our communities in the hope that we forget what makes us strong. But we refuse to back down or be intimidated.”
“We are not going anywhere. and we will fight back against these harmful provisions with everything we’ve got,” Robinson said.
World
Out in the World: LGBTQ news from Europe and Asia
The British government will build a memorial for queer veterans
UNITED KINGDOM
A memorial for LGBTQ veterans will be built at the National Memorial Arboretum in Staffordshire, the British government announced earlier this month.
Funded by a £350,000 (approximately $425,000) grant from the Office for Veterans’ Affairs, the memorial is part of the government’s response to an independent review of the experience of LGBTQ veterans who served before 2000, when the UK government removed restrictions of queer people service openly in the military. Thousands of LGBTQ soldiers and service personnel were dismissed from the military while the ban was in effect.
The 9’ tall bronze memorial takes the form of a crumpled letter made up of words taken from testimony of former personnel who were impacted by the LGBTQ ban.
“This is extremely personal for some of our members, some of whom have been affected by the armed forces exclusion of LGBTQ+ identities, and some simply affected by lived queer experience. All our members make a living in the arts by designing and delivering beautiful sculpture, making and inspired by the act of collaboration,” says Nina Bilbey, lead artist at the Abraxis Academy, which collectively designed the memorial.
The design was one of 38 submitted in a nationwide competition and selected by a judging panel that included representatives from Fighting with Pride, a national LGBTQ veterans advocacy group.
The UK government has taken other steps to restore dignity to LGBTQ veterans, including the launch of a financial recognition scheme, qualification of discharge, and restoration of rank, which were launched last December.
“When I joined the Royal Marines in 1999, this abhorrent ban on homosexuality in the armed forces was still in place. A quarter of a century later, we turn a page on that shameful chapter in our national story,” says Veterans Minister Alistair Carns in a statement.
RUSSIA
A Russian man was fined under the country’s LGBTQ propaganda laws for jokingly claiming to be the founder of the “international LGBT movement,” which the Russian Supreme Court declared to be an extremist terrorist organization last year.
Anton Yevdokimov, a pro-democracy activist, was found guilty of spreading “propaganda of non-traditional relations” by a Moscow court last November, but the decision was only made public last week. He was ordered to pay a fine of 100,000 rubles (approximately $975.)
Yevdokimov posted the offending statements on VKontakte, a Russian social media platform, in December 2023, shortly after the Russian Supreme Court declared the “international LGBT movement” to be an extremist terrorist organization.
“Now that they’ve banned LGBT, it’s time to confess: I am the founder and main organizer of the LGBTQ+ extremist organization!” Yevdokimov wrote, according to Novaya Gazeta.
“I went to Rainbow High School, was recruited there, and now irradiate all homophobes with rainbows! Every time a homophobe looks at a rainbow, they get a tingle in their ass and want to suck dicks,” he wrote, also saying that “KGB cocksuckers” should “be afraid.”
Yevdokimov was already in police detention over a separate social media that is alleged to have “justified terrorism” post when he received the fine.
Russian authorities have stepped up persecution of LGBTQ people and activities since the Supreme Court ruling. Earlier this month, police detained the staff at a restaurant in Yakutsk in the Russian Far East, after the mayor’s office accused the restaurant of hosting performances by visiting queer and transgender artists from Thailand.
TURKEY
Turkish President Recep Tayyip Erdogan attacked the country’s LGBTQ community in a speech launching what he’s calling a “year of the family,” aimed at reversing declining birth rates.
Erdogan has long targeted the LGBTQ as a political tactic, even though Turkey’s queer community is relatively low profile. He often portrays LGBTQ rights activists as part of a foreign conspiracy designed to weaken Turkey.
“It is our common responsibility to protect our children and youth from harmful trends and perverse ideologies. Neoliberal cultural trends are crossing borders and penetrating all corners of the world,” he told an audience in the capital, Ankara. “They also lead to LGBT and other movements gaining ground.
“The target of gender neutralization policies, in which LGBT is used as a battering ram, is the family. Criticism of LGBT is immediately silenced, just like the legitimate criticisms of Zionism. Anyone who defends nature and the family is subject to heavy oppression.”
Critics of LGBTQ rights are not routinely silenced in Turkey, as should be evident by the fact that the current president is a vocal critic of LGBTQ rights. Parties opposed to LGBTQ rights make up a majority of the national parliament and run the majority of Turkey’s cities.
It is more accurate to say that the government routinely shuts down speech in favor of LGBTQ rights in Turkey.
Since 2016, Istanbul Pride has been banned every year. People who’ve defied the ban have been subjected to tear gas, plastic bullets, and mass arrests.
Last year, the city of Istanbul’s film censors banned a screening of the Luca Guadagnino film “Queer,” leading to the cancellation of the film festival it was set to open.
Erdogan’s announcement came with a suite of policies he says will reverse a trend of declining birth rates, including better income supports for newlyweds and new parents.
Turkish law does not recognize any same-sex relationships or same-sex parents.
MYANMAR
The military junta that governs Myanmar has banned seven books with LGBTQ themes and has said it will take action against the books’ publishers, according to Radio Free Asia.
The banned books are “A Butterfly Rests on My Heart” by Aung Khant, “1500 Miles to You” and “Love Planted by Hate” by Mahura, Myint Mo’s “Tie the Knot of Love,” “Match Made in Clouds” by DiDi Zaw, “DISO+Extra” by Red in Peace and “Concerned Person U Wai” by Vivian. All the books are published domestically by Myanmar writers.
“These books are not accepted by Myanmar society, they are shameless and the content that can mislead the thinking and feelings of young people,” the Information Ministry said in a statement published in state-run media.
The LGBTQ community typically maintains a low profile in the socially conservative country, where gay sex is still criminalized under a criminal code that was drafted by the British colonial administration in the 19th century.
LGBTQ people can also be charged or harassed by authorities under laws that criminalize the production and distribution of “obscene” materials.
Myanmar’s military has had effective control of the government since 1962. A brief democratization in the 2010s ended when the military seized power following the victory of pro-democracy forces in the 2020 election.
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