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Court asked to overturn marriage bans in Nevada, Hawaii

14 attorneys general and Hawaii governor among those to file briefs.

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Martha Coakley, Beau Biden, Neil Abercrombie, Massachusetts, Delaware, Hawaii, Democratic Party, gay news, Washington Blade

Massachusetts Attorney General Martha Coakley, Delaware Attorney General Beau Biden and Hawaii Governor Neil Abercrombie signed briefs before the Ninth Circuit seeking marriage equality. (Photo of Martha Coakley by Fogster via Wikimedia Commons; Washington Blade photos of Biden and Abercrombie by Michael Key)

Five months after the U.S. Supreme Court issued two decisions in favor of marriage equality, a chorus of voices is calling on the U.S. Ninth Circuit to make a similar ruling on behalf of gay couples seeking marriage rights in Nevada and Hawaii.

Legal briefs were submitted to the Ninth Circuit by numerous public figures who’ve previously articulated their support for marriage equality, ranging from Hawaii Gov. Neil Abercrombie to Delaware Attorney General Beau Biden. However, the Obama administration didn’t submit a brief to the court by the deadline articulating its views of favor of same-sex marriage.

The cases before the court are Sevick v. Sandoval, a federal lawsuit filed by Lambda Legal last year seeking marriage equality in Nevada, and Jackson v. Abercrombie, a similar lawsuit filed by private attorneys seeking to overturn the ban on same-sex marriage in Hawaii. Both are on appeal before the Ninth Circuit after district courts in those states affirmed that the bans on same-sex marriage were constitutional.

Abercrombie, who previously said he wouldn’t defend the ban on same-sex marriage in court, submitted an opening brief from his lawyers on Oct. 18 that seeks permission to file an additional, more lengthy document because the lawsuit a “landmark civil rights case.”

But the 112-page brief makes initial arguments about why the ban on same-sex marriage is unconstitutional, arguing that it fails any rational basis test and laws related to sexual orientation should be subject to heightened scrutiny.

“Only legalization of same-sex marriage would allow plaintiffs, and tens of thousands of other same-sex couples in Hawaii, to ‘pursue the happiness’ and assume the mutual responsibilities — important to human ‘existence and survival’ — that are at the heart of the fundamental right to marry,” the brief states. “And only legalization will give plaintiffs the equality they so justly deserve.”

On Friday, friend-of-the-court briefs were also due before the Ninth Circuit. One high-profile brief was signed by 14 attorneys general who had previously signed a brief before the Supreme Court arguing in favor of marriage equality. Signers of the brief include Massachusetts Attorney General Martha Coakley, who’s running for governor, California Attorney General Kamala Harris and Biden.

The 32-page argues that the bans on same-sex marriage in Hawaii and Nevada are unconstitutional, among other reasons, because including same-sex couples into the institution of marriage enhances state interest and the current laws aren’t rationally related to interests in procreation or child-rearing.

“Since the founding, states have sanctioned marriages to support families, strengthen communities, and facilitate governance,” the brief states. “Because same-sex couples form families, raise children, and avail themselves of the benefits and abide by the obligations of marriage in the same manner as different-sex couples, the states’ interest in marriage are furthered by allowing same-sex couples to marry.”

The 14 states represented in the brief are California, Connecticut, Delaware, Iowa, Illinois, Maine, Maryland, Massachusetts, New Hampshire, New Mexico, New York, Oregon, Vermont and Washington. D.C. Attorney General Irving Nathan also signed.

Because the cases are before the Ninth Circuit, they are the most advanced federal lawsuits on marriage equality and the closest to the Supreme Court. However, the lawsuits may not be the ones to reach the high court first because the Ninth Circuit is notoriously slow in reviewing litigation.

Both briefs from the attorneys general and Abercrombie make use the Supreme Court’s decision against the Defense of Marriage Act.

The brief filed by the attorneys generals says in a footnote that the DOMA decision has particular impact on gay couples in Hawaii and Nevada because marriage laws in those states are now preventing them from accessing the federal benefits of marriage.

“Nevada and Hawaii marriage laws now prevent same-sex couples and their families from obtaining important federal benefits and protections otherwise available to married couples,” the brief states. “This works significant and practical harm to those families and further undercuts the rationality of state laws that create two classes of state-sanctioned relationships.”

The attorneys general filed a brief before the Ninth Circuit even though they had previously articulated their views on marriage before the Supreme Court, but one party that didn’t follow suit is the Obama administration.

The Justice Department filed a friend-of-the-court brief when California’s Proposition 8 had come before the Supreme Court, arguing the ban on same-sex marriage is unconstitutional and suggesting states with domestic partnerships must allow marriage rights for gay couples.

Although Nevada and Hawaii similarly have domestic partnership registries, the Obama administration didn’t make a filing in the Nevada or Hawaii cases. The Justice Department didn’t respond to a request to comment on why no brief was filed.

Evan Wolfson, president of Freedom to Marry, nonetheless said the lack of a brief from the Obama administration isn’t of concern.

“It is not disappointing and not a problem; the Department of Justice’s conclusion that the denial if the freedom to marry violates the Constitution is clear and a matter of record,” Wolfson said.

Lambda Legal had previously said it would “welcome” a brief from the Obama administration in the Nevada case for the Ninth Circuit. In response to an inquiry about the absence of input from the Justice Department, Lambda Staff Attorney Peter Renn pointed to the friend-of-the-court briefs filed by other parties in the lawsuit.

“A total of 17 amicus briefs were filed, in support of ending the unconstitutional exclusion of same-sex couples from marriage and the real harm it does to same-sex couples and their families,” Renn said. “The Obama Administration’s support for marriage equality is already well-established, and there may be future opportunities to file amicus briefs in this case as it proceeds further.”

A number of other parties submitted friend-of-the-court briefs before the Ninth Circuit in favor of overturning the bans on same-sex marriage.

* A group of 13 political scientists filed a 39-page brief arguing the marriage bans should be overturned because laws related to sexual orientation should be subject to heightened scrutiny. Gay people, the political scientists say, should be considered a suspect class because they continue to lack political power.

“Gay men and lesbians lack political power,” the brief states. “They are underrepresented in political office; they are viewed negatively by a majority of Americans; their interests are opposed by powerful, well-funded interest groups that use ballot initiatives to try to undo the limited political successes that gay men and lesbians have achieved; and they have limited influence over their political allies.”

* Another brief was filed by the National Association for the Advancement of Colored People, which argues that the 1967 Supreme Court decision overturning state bans on interracial marriage in Loving v. Virginia applies to prohibitions on same-sex marriage.

“The basic 14th Amendment principles addressed in Loving are not limited to race,” the brief states. “To the contrary, they govern any state action that denies two consenting adults – including those of the same sex – the right to marry. While the nature of discrimination against lesbians and gay men differs fundamentally from the de jure racial segregation at issue in Loving, the legal issues addressed by Loving are analogous to the legal issues raised in these appeals.”

Other briefs were filed by Gay & Lesbian Advocates & Defenders, the American Psychological Association, the Columbia Law School Sexuality & Gender Law Clinic and the Gay & Lesbian Medical Association.

UPDATE: This article has been updated with a comment from Lambda Legal and a listing on the states that signed the brief from the attorneys general.

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Comings & Goings

Hank’s Oyster Bar celebrates 20th anniversary

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Jamie Leeds

The Comings & Goings column is about sharing the professional successes of our community. We want to recognize those landing new jobs, new clients for their business, joining boards of organizations and other achievements. Please share your successes with us at [email protected]

Congratulations to Jamie Leeds, chef extraordinaire, on celebrating the 20th anniversary of Hank’s Oyster Bar in Dupont Circle. Leeds said, “I am feeling grateful that Hanks has been in such a supportive and friendly neighborhood for 20 years.”

Leeds is a pioneering and tenacious entrepreneur who has spent her career foster­ing community, mentoring other female business owners and culinary professionals, and supporting sustainable practices across her restaurants and the seafood industry at large.

 She has 40 years of experience, from kitchens in Europe, to the D.C.-Maryland-Virginia-ar­ea. A self-taught chef, she began her career in New York in the early 1980s at Danny Meyer’s famed Union Square Cafe, working her way up from potato peeler to sous chef. With Meyer’s encouragement, she moved to France in 1991, where she spent a year honing her skills before returning stateside to work for Rich Melman, of Lettuce Entertain You Enterprises, in Chicago. 

From the moment she appeared on the D.C. culinary scene, Leeds garnered positive reviews and accolades, earning nominations in 2003 as a “Rising Culinary Star” in the Restau­rant Association of Metropolitan Washington’s Capital Restaurant & Hospitality Awards, and a “Rising Star Chef” by Starchefs’ local awards program. 

I met Leeds in early 2005 as she was trying to open Hank’s in D.C.’s Dupont Circle, serving what she coined “urban beach food.” The restaurant was named for her father, whom she credits as her inspiration for becoming a chef. It debuted to wide acclaim. A few of us joined with Jamie to fight some local neighborhood residents who were trying to stop her opening for a host of invalid reasons. Thankfully, they lost, and the neighborhood, and people of D.C., won. Now celebrated for its range of proprietary oysters and other locally sourced seafood, Hank’s Oyster Bar continues to draw recognition as a D.C. institution and industry stalwart, recently winning “Best Raw Bar” in Washingtonian’s Best of Washington Readers’ Poll 2019, “Best Bloody Mary” and “Best Chef-Jamie Leeds” (a second consecutive win) from Washington Blade’s Best of Gay D.C. in 2019, 2020, and 2021 among numerous other accolades. Leeds now has a Hank’s Oyster Bar in Old Town Alexandria, Va., and her largest location, Hank’s on the Wharf, which opened in October 2017.

In June of 2021 she was recognized by the U.S. Chamber of Commerce for inspiring LGBTQ+ entrepreneurs in the DMV area, and her approach to sustainable and inclusive business practices. A resident of North Chevy Chase, Md., when she’s not busy at the helm of her burgeoning restaurant empire, she enjoys spending time with her wife, Tina, and two children, Hayden and Hazel.

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Politics

Pete Buttigieg, eyeing a presidential run, holds Iowa town hall

Former DOT secretary defended trans rights

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Pete Buttigieg (Washington Blade file photo by Michael Key)

After acknowledging during an interview on Tuesday that he is considering a bid for the White House in 2028, Pete Buttigieg stepped onto a stage in Cedar Rapids, Iowa, for a 45-minute town hall where he looked and sounded very much a candidate launching his presidential campaign.

The former U.S. Transportation Secretary warned that “we are being tested on nothing less” than the strength of America’s commitments to freedom and democracy over the next four years of President Donald Trump’s second term.

Rather than “hang back” while those in power “screw up,” he said now is the time to advance and articulate an agenda charting a new path forward for the country, including by restoring access to abortion and better addressing the challenges and meeting the needs of the nation’s veterans and with their families and communities.

As Democrats work to rebuild with an eye toward retaking control of the White House and both chambers of Congress, the party has wrestled with questions of whether and to what extent last year’s electoral defeat may have been attributable to the adoption of policy positions that were unpopular or out of step with views held by key parts of the electorate.

Buttigieg on Tuesday stressed the importance of identifying which parts of the platform should be revisited, the areas in which a greater diversity of viewpoints should be tolerated and welcomed into the Democratic coalition, and when to provide room for disagreement and debate. 

As an example, he took the matter of whether and in which circumstances athletes should be allowed to compete on sports teams that are consistent with their gender identity but inconsistent with their birth sex. 

“I think we do need to revisit some of the things that we have had to say policy-wise that haven’t kept up with the times as a party,” he said, adding, “Americans may have questions about how to make sure sports are safe and fair, which I get.” 

At the same time, “that doesn’t ever mean throwing vulnerable people under the bus,” Buttigieg said — and not just because that would be wrong, but also because it’s bad politics for Democrats. 

For example, “Americans understand that your gender identity shouldn’t affect whether you get to vote,” Buttigieg said, referencing policies passed by conservative lawmakers in Iowa and several other states that would render voters ineligible to cast their ballots in cases where there are discrepancies in the information listed on their official documents, records, and government-issued IDs. The rules are expected to disproportionately impact transgender people who are far likelier than their cisgender counterparts  to have updated the gender markers and names listed on their driver’s licenses, for example.

Buttigieg, a decorated U.S. Navy Reserve officer who was deployed to Afghanistan, also raised an example of unpopular anti-trans policymaking, the Trump-Vance administration’s ban on military service by trans soldiers: “Americans understand,” he said, “that if you are, for example, a soldier who is doing a good job, who is getting good ratings from commander who is contributing to the readiness of this mission, who is ready to put their life on the line, who happens to be transgender, you ought to be honored and not kicked out of the military.”

The line drew applause from attendees, who included a number of veterans including members and staff from VoteVets, the progressive advocacy group that organized the town hall.

Also in attendance on Tuesday were supporters who wore official merchandise from Buttigieg’s 2020 run, which began with his surprise first-place finish in the Iowa Democratic presidential caucuses ahead of then-former Vice President Joe Biden and U.S. Sens. Bernie Sanders (I-Vt.), Elizabeth Warren (D-Mass.) — a transformational moment for the openly gay former mayor of South Bend, Ind., who thereafter emerged as a rising star in his party and quickly become a formidable force in American politics on the national stage.

Many elected officials and other influential stakeholders within the Democratic Party now consider Buttigieg the strongest or one of the strongest of its communicators. His name has often been floated as a strong choice to lead the ticket as the Democratic presidential nominee.And he seems well positioned for a run in 2028. Even so, this far in advance of the election candidates are more circumspect about discussing their plans or their thinking about a bid for the White House so far in advance of the election.

However, Trump’s second administration and the new Congress led in both chambers by Republican loyalists seems to have prompted a number of other top Democrats to dispense with the coquettishness. A report in Politico notes that Kentucky Gov. Andy Beshear, Pennsylvania Gov. Josh Shapiro, former Chicago Mayor Rahm Emanuel, and former U.S. Commerce Secretary Gina Raimondo have recently either made overtures signaling they are considering a run or declined opportunities to deny it.

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Rehoboth Beach

Ashley Biden to speak at Blade’s Summer Kickoff Party in Rehoboth Beach

May 16 event to honor Beau Biden, feature speech from Gov. Matt Meyer

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Former first lady Jill Biden and daughter, Ashley Biden, attend the White House Pride celebration on June 26, 2024. (Washington Blade photo by Michael Key)

The Washington Blade’s 18th annual Summer Kickoff Party is scheduled for today in Rehoboth Beach, Del.

Ashley Biden, daughter of President Joe Biden, has joined the list of speakers, the Blade announced on Friday. She will accept an award on behalf of her brother Beau Biden for his LGBTQ advocacy work as Delaware attorney general. 

Delaware Gov. Matt Meyer has also joined the list of speakers. 

The event, held at the Blue Moon (35 Rehoboth Ave.) from 5-7 p.m., is a fundraiser for the Blade Foundation’s Steve Elkins Memorial Fellowship in Journalism, which funds a summer position reporting on LGBTQ news in Delaware. This year’s recipient will be introduced at the event.

The event will also feature remarks from state Sen. Russ Huxtable, who recently introduced a state constitutional amendment to codify the right of same-sex couples to marry. CAMP Rehoboth Executive Director Kim Leisey and Blade editor Kevin Naff will also speak. The event is generously sponsored by Realtor Justin Noble, The Avenue Inn & Spa, and Blue Moon.

A suggested donation of $20 is partially tax deductible and includes drink tickets and light appetizers. Tickets are available in advance at bladefoundation.org/rehoboth or at the door. 

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