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Will Mich. judge make a surprise ruling for marriage equality?

Decision could immediately follow oral arguments this week

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National LGBT Bar Association, Gay News, Washington Blade

A federal judge in Michigan could issue a surprise ruling on Wednesday in favor of marriage rights for gay couples. (Image via wikimedia).

The national landscape for marriage equality could change abruptly following oral arguments in a Michigan lawsuit on Wednesday if the federal judge presiding over the case issues a decision saying gay couples should be able to wed in the state.

The U.S. District Court for Eastern District of Michigan is set to hear arguments in the case of DeBoer v. Snyder, a lawsuit filed by private attorneys that seeks to overturn the constitutional ban on same-sex marriage approved by Michigan voters in 2004.

Because requests for summary judgment were filed by both the plaintiffs and the state, U.S. District Judge Bernard Friedman could issue a decision immediately after he hears arguments in the courtroom.

Dana Nessel, one of four private attorneys representing the lesbian plaintiff couple in the lawsuit, said she’s “very hopeful” at the end of arguments Friedman will issue a ruling against the marriage ban in Michigan.

“We don’t know that that’s going to happen, but certainly, we’d be thrilled to have a resolution to this case as early as possible,” Nessel said. “This case has been pending for a very long time, and there are hundreds and hundreds, maybe thousands, of LGBT couples in this state that have been awaiting a ruling in this case.”

The case was filed in January 2012 by a lesbian couple, April DeBoer and Jayne Rowse, in Hazel Park, Mich., who were seeking a ruling granting them the ability to adopt their three children.

Michigan law has no explicit ban on gay adoption, but restricts adoptions to either single persons or married couples. Meanwhile, the Michigan marriage law restricts the state’s legal definition of marriage to opposite-sex couples. Some judges have interpreted that to mean gay couples can’t adopt because they’re unable to marry.

After Friedman reviewed the case last year, he suggested to the couple that they were actually seeking the right to marry because the right to adopt in the state was tied to marriage. The couple amended their case in March to seek marriage equality in Michigan, while still pursuing their goal of adoption rights, on the basis that the marriage ban violates the due process and equal protection clauses of the Fourteenth Amendment to the U.S. Constitution.

Jay Kaplan, a staff attorney at the ACLU of Michigan, said the judge may decide to wait beyond the day of oral arguments — perhaps indeterminately — to issue a decision on marriage, and could ultimately avoid the marriage issue altogether in his decision.

“There are many different scenarios that could happen here,” Kaplan said. “The judge could decide maybe just to focus in terms of the right to jointly adopt, and he could say that’s separate from the issue of marriage, or he could decide it’s tied to the issue of marriage and could also then decide to deny the right to marry is unconstitutional in the state of Michigan.”

It’s the first oral arguments in federal court after the U.S. Supreme Court decision striking down the Defense of Marriage Act. Presenting the oral arguments on behalf of the plaintiff couple will be private attorney Carole Stanyar. The attorney arguing in favor of the ban will likely be the lead counsel representing the state, Assistant Attorney General Kristin Heyse.

One thing to watch is whether the decision in United States v. Windsor will have bearing on the judge’s questioning or any decision he issues. Although that decision struck down a law prohibiting federal recognition of same-sex marriage, state courts and attorneys general have already drawn on the language in that decision to determine that state bans on marriage equality are unconstitutional.

Nessel said the decision will be a “tremendous benefit” in efforts to lift the ban on same-sex marriage in Michigan because of Associate Justice Anthony Kennedy’s language in the ruling expressing concern for children raised by gay couples.

“Our feeling was why talk about children being raised in same-sex households in a case that didn’t involve that at all unless Justice Kennedy specifically meant for that to apply to our case, to cases like ours,” Nessel said. “There it is. Right in the Windsor decision where it didn’t have to be. There’s no reason to talk about that unless it was meant to apply to our scenario, and we think it does.”

The ACLU of Michigan, Kaplan said, filed a friend-of-the-court brief in the case in favor of the plaintiffs along with Lambda Legal, the National Center for Lesbian Rights and the Human Rights Campaign. Prior to the Supreme Court ruling on DOMA, in December 2012 these groups urged the court to hold off on a decision on the basis that it was more “prudent” to make a decision after receiving guidance from the high court — a request the judge followed.

Another question is whether Gov. Rick Snyder, a Republican who has side-stepped the issue of same-sex marriage, or Michigan State Attorney General Bill Schuette, who has a reputation for being a conservative, will appeal a ruling in favor of same-sex marriage to the U.S. Sixth Circuit Court of Appeals. Such an appeal could mean a stay on the ability of county clerks to grant licenses to gay couples despite a ruling in favor of marriage equality.

The Michigan attorney general’s office didn’t respond to the Washington Blade’s request for comment on Schuette’s expectations for the lawsuit or whether he would appeal a ruling in favor of same-sex marriage. Joy Yearout, spokeswoman for Schuette, told the Detroit Free Press the state would defend the marriage ban in court, but wouldn’t comment on what would happen if the court ruled in favor of marriage equality.

Kaplan predicted that Schuette would make the appeal to the Sixth Circuit because the attorney general is “no supporter of LGBT equality in our state.”

“He’s indicated that he believes things should be the status quo with regard to relationship recognition the way things exist now in our state,” Kaplan said. “Chances are that he would appeal.”

Oral arguments in the case are taking place in the Michigan lawsuit amid a slew of activities throughout the country on marriage equality following the Supreme Court decision against DOMA and California’s Proposition 8. At least 35 marriage equality lawsuits are pending in 19 states.

Michael Cole-Schwartz, an HRC spokesperson, said a ruling in favor of marriage equality from the Michigan court — even if it were appealed — would be a tremendous boon to the pursuit of marriage equality across the country.

“This is one of many cases that calls into question the irrational exclusion of lesbian and gay couples from marriage and we are hopeful that as momentum builds, these darks walls of discrimination will fall,” Cole-Schwartz said.

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After Biden signs TikTok ban its CEO vows federal court battle

“Rest assured, we aren’t going anywhere,” CEO said

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TikTok mobile phone app. (Screenshot/YouTube)

President Joe Biden signed an appropriations bill into law on Wednesday that provides multi-billion dollar funding and military aid for Ukraine, Israel, and Taiwan after months of delay and Congressional infighting.

A separate bill Biden signed within the aid package contained a bipartisan provision that will ban the popular social media app TikTok from the United States if its Chinese parent company ByteDance does not sell off the American subsidiary.

Reacting, TikTok CEO Shou Zi Chew said Wednesday that the Culver City, Calif.-based company would go to court to try to remain online in the U.S.

In a video posted on the company’s social media accounts, Chew denounced the potential ban: “Make no mistake, this is a ban, a ban of TikTok and a ban on you and your voice,” Chew said. “Rest assured, we aren’t going anywhere. We are confident and we will keep fighting for your rights in the courts. The facts and the constitution are on our side, and we expect to prevail,” he added.

White House Press Secretary Karine Jean-Pierre adamantly denied during a press briefing on Wednesday that the bill constitutes a ban, reiterating the administration’s hope that TikTok will be purchased by a third-party buyer and referencing media reports about the many firms that are interested.

Chew has repeatedly testified in both the House and Senate regarding ByteDance’s ability to mine personal data of its 170 million plus American subscribers, maintaining that user data is secure and not shared with either ByteDance nor agencies of the Chinese government. The testimony failed to assuage lawmakers’ doubts.

In an email, the former chair of the House Intelligence Committee, U.S. Rep. Adam Schiff (D-Calif.), who doesn’t support a blanket ban of the app, told the Washington Blade:

“As the former chairman of the House Intelligence Committee, I have long worked to safeguard Americans’ freedoms and security both at home and abroad. The Chinese Communist Party’s ability to exploit private user data and to manipulate public opinion through TikTok present serious national security concerns. For that reason, I believe that divestiture presents the best option to preserve access to the platform, while ameliorating these risks. I do not support a ban on TikTok while there are other less restrictive means available, and this legislation will give the administration the leverage and authority to require divestiture.”

A spokesperson for U.S. Sen. Alex Padilla (D-Calif.) told the Blade: “Senator Padilla believes we can support speech and creativity while also protecting data privacy and security. TikTok’s relationship to the Chinese Communist Party poses significant data privacy concerns. He will continue working with the Biden-Harris administration and his colleagues in Congress to safeguard Americans’ data privacy and foster continued innovation.”

The law, which gives ByteDance 270 days to divest TikTok’s U.S. assets, expires with a January 19, 2025 deadline for a sale. The date is one day before Biden’s term is set to expire, although he could extend the deadline by three months if he determines ByteDance is making progress or the transaction faces uncertainty in a federal court.

Former President Donald Trump’s executive order in 2020, which sought to ban TikTok and Chinese-owned WeChat, a unit of Beijing-based Tencent, in the U.S., was blocked by federal courts.

TikTok has previously fought efforts to ban its widely popular app by the state of Montana last year, in a case that saw a federal judge in Helena block that state ban, citing free-speech grounds.

The South China Morning Post reported this week that the four-year battle over TikTok is a significant front in a war over the internet and technology between Washington and Beijing. Last week, Apple said China had ordered it to remove Meta Platforms’s WhatsApp and Threads from its App Store in China over Chinese national security concerns.

A spokesperson for the ACLU told the Blade in a statement that “banning or requiring divestiture of TikTok would set an alarming global precedent for excessive government control over social media platforms.”

LGBTQ TikToker users are alarmed, fearing that a ban will represent the disruption of networks of support and activism. However, queer social media influencers who operate on multiple platforms expressed some doubts as to long term impact.

Los Angeles Blade contributor Chris Stanley told the Blade:

“It might affect us slightly, because TikTok is so easy to go viral on. Which obviously means more brand deals, etc. However they also suppress and shadow ban LGBTQ creators frequently. But we will definitely be focusing our energy more on other platforms with this uncertainty going forward. Lucky for us, we aren’t one trick ponies and have multiple other platforms built.”

Brooklyn, N.Y.,-based gay social media creator and influencer Artem Bezrukavenko told the Blade:

“For smart creators it won’t because they have multiple platforms. For people who put all their livelihood yes. Like people who do livestreams,” he said adding: “Personally I’m happy it gets banned or American company will own it so they will be less homophobic to us.”

TikTok’s LGBTQ following has generally positive experiences although there have been widely reported instances of users, notably transgender users, seemingly targeted by the platform’s algorithms and having their accounts banned or repeatedly suspended.

Of greater concern is the staggering rise in anti-LGBTQ violence and threats on the platform prompting LGBTQ advocacy group GLAAD, in its annual Social Media Safety Index, to give TikTok a failing score on LGBTQ safety.

Additional reporting by Christopher Kane

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Smithsonian staff concerned about future of LGBTQ programming amid GOP scrutiny

Secretary Lonnie Bunch says ‘LGBTQ+ content is welcome’

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Lonnie G. Bunch III, secretary of the Smithsonian Institution, appears before a Dec. 2023 hearing of the U.S. Committee on House Administration (Screen capture: Forbes/YouTube)

Staff at the Smithsonian Institution are concerned about the future of LGBTQ programming as several events featuring a drag performer were cancelled or postponed following scrutiny by House Republicans, according to emails reviewed by the Washington Post.

In December, Secretary Lonnie G. Bunch III appeared before a hearing led by GOP members of the Committee on House Administration, who flagged concerns about the Smithsonian’s involvement in “the Left’s indoctrination of our children.”

Under questioning from U.S. Rep. Stephanie Bice (R-Okla.), Bunch said he was “surprised” to learn the Smithsonian had hosted six drag events over the past three years, telling the lawmakers “It’s not appropriate to expose children” to these performances.

Collaborations with drag artist Pattie Gonia in December, January, and March were subsequently postponed or cancelled, the Post reported on Saturday, adding that a Smithsonian spokesperson blamed “budgetary constraints and other resource issues” and the museums are still developing programming for Pride month in June.

“I, along with all senior leaders, take seriously the concerns expressed by staff and will continue to do so,” Bunch said in a statement to the paper. “As we have reiterated, LGBTQ+ content is welcome at the Smithsonian.”

The secretary sent an email on Friday expressing plans to meet with leaders of the Smithsonian Pride Alliance, one of the two groups that detailed their concerns to him following December’s hearing.

Bunch told the Pride Alliance in January that with his response to Bice’s question, his intention was to “immediately stress that the Smithsonian does not expose children to inappropriate content.”

“A hearing setting does not give you ample time to expand,” he said, adding that with more time he would have spoken “more broadly about the merits and goals of our programming and content development and how we equip parents to make choices about what content their children experience.”

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Survey finds support for Biden among LGBTQ adults persists despite misgivings

Data for Progress previewed the results exclusively with the Blade

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Former President Donald Trump and President Joe Biden (Washington Blade photo by Michael Key)

A new survey by Data for Progress found LGBTQ adults overwhelmingly favor President Joe Biden and Democrats over his 2024 rival former President Donald Trump and Republicans, but responses to other questions may signal potential headwinds for Biden’s reelection campaign.

The organization shared the findings of its poll, which included 873 respondents from across the country including an oversample of transgender adults, exclusively with the Washington Blade on Thursday.

Despite the clear margin of support for the president, with only 22 percent of respondents reporting that they have a very favorable or somewhat favorable opinion of Trump, answers were more mixed when it came to assessments of Biden’s performance over the past four years and his party’s record of protecting queer and trans Americans.

Forty-five percent of respondents said the Biden-Harris administration has performed better than they expected, while 47 percent said the administration’s record has been worse than they anticipated. A greater margin of trans adults in the survey — 52 vs. 37 percent — said their expectations were not met.

Seventy precent of all LGBTQ respondents and 81 percent of those who identify as trans said the Democratic Party should be doing more for queer and trans folks, while just 24 percent of all survey participants and 17 percent of trans participants agreed the party is already doing enough.

With respect to the issues respondents care about the most when deciding between the candidates on their ballots, LGBTQ issues were second only to the economy, eclipsing other considerations like abortion and threats to democracy.

These answers may reflect heightened fear and anxiety among LGBTQ adults as a consequence of the dramatic uptick over the past few years in rhetorical, legislative, and violent bias-motivated attacks against the community, especially targeting queer and trans folks.

The survey found that while LGBTQ adults are highly motivated to vote in November, there are signs of ennui. For example, enthusiasm was substantially lower among those aged 18 to 24 and 25 to 39 compared with adults 40 and older. And a plurality of younger LGBTQ respondents said they believe that neither of the country’s two major political parties care about them.

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