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What will the Tenth Circuit do with Utah marriages?

Don’t read too much into court decision to reject a stay: experts

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National LGBT Bar Association, Gay News, Washington Blade

It’s unclear what the Tenth Circuit will do over Utah same-sex marriages. (Image via wikimedia)

As celebrations continue in Utah following its surprise entry as a marriage equality state, one lingering question is whether the U.S. Tenth Circuit Court of Appeals will allow gay couples to continue to marry there.

The court will face two questions regarding the ruling by U.S. District Judge Robert Shelby that the state’s ban on same-sex marriage is unconstitutional. First, whether to institute a stay on Utah’s same-sex marriages as it considers the decision on appeal, and second, whether to overturn or uphold the district court decision.

Suzanne Goldberg, a lesbian and co-director of Columbia University’s Center for Gender & Sexuality Law, said Sunday the Tenth Circuit’s previous rejections of a stay are no indication it’ll decide the same way the next time around.

“I know the 10th circuit declined to issue a stay today, but that decision is consistent with standard procedure, which provides that the district court should rule on a stay request before the appellate court responds,” Goldberg said. “The decision does not tell us what the court will do if and when the stay request is properly presented.”

Appeals courts have made various decisions on whether to institute a stay on same-sex marriages as marriage equality litigation has advanced. The U.S. Ninth Circuit Court of Appeals issued a stay on same-sex marriages after it determined California’s Proposition 8 was unconstitutional. But the New Jersey State Supreme Court refused to stay a lower court’s ruling in favor of marriage equality, prompting New Jersey Gov. Chris Christie to drop his defense of the marriage ban.

State officials — Utah Gov. Gary Herbert and the Utah attorney general’s office — have repeatedly sought stays on the weddings, but have been rebuffed by both the district court and the Tenth Circuit. However, the appeals court allowed officials to refile yet again. The Tenth Circuit could make a decision on a stay at any time and is expected to do so soon, perhaps on Christmas Eve.

Brian Brown, president of the National Organization for Marriage, is calling on the Tenth Circuit to issue a stay on the same-sex marriages.

“This decision provokes a constitutional crisis,” Brown said. “Not only is it unlawful, it roils the body politic and does great damage to the people’s confidence in the judicial system itself as a lone federal judge attempts to usurp the sovereignty of the state. We call on the Tenth Circuit to grant an immediate stay so that our higher courts can carefully and thoughtfully consider the profoundly important issues raised by this case.”

In the event that the Tenth Circuit rejects a stay, state officials could take their request to the U.S. Supreme Court.

Rick Hasen, a professor of law and politics at University of California, Irvine, said via Twitter that the request would go to U.S. Associate Justice Sonia Sotomayor, who could refer the issue to the entire court.

Jon Davidson, legal director for Lambda Legal, said determining which way the Supreme Court will rule on a stay is difficult — even with the precedent of declaring Section 3 of the Defense of Marriage Act unconstitutional.

“Given that couples are now marrying in many other states without any harm to anyone, the Court might choose simply not to get involved at this point, but, as I’ve said, I can’t make any prediction at this point with any degree of confidence,” Davidson said.

Regardless of whether or not the court issues a stay, state officials — Gov. Gary Herbert and newly appointed Utah Attorney General Sean Reyes — have the right to automatic appeal, so the Tenth Circuit has no option but to take up the case on its merits.

The makeup of the U.S. Tenth Circuit Court of Appeals is split just about down the middle between judges appointed by Democrats and Republicans. Three were appointed by President Obama, one by President Clinton, one by President George H.W. Bush, and four by President George W. Bush, making for a 4/5 split of Democratic vs. Republican appointees. There are also two vacancies on the court.

Davidson nonetheless said the political affiliation of the president who appointed a judge doesn’t necessarily predict the way they will decide a case.

“Of course, who appointed a judge does not necessarily tell you how a judge would rule, as some appointees of Democratic presidents have been quite moderate or even, in some states, somewhat conservative, and a number of Republican judges throughout the country have ruled in favor of marriage equality,” Davidson said.

It’s also hard to predict which combination of judges will decide the Utah case. Just as two judges on the court have denied previous stay requests in the case, certain motions, including motions to stay, are randomly assigned to a rotating two-judge panel. In the event of a tie, those judges may request that a third judge be added to decide the matter.

The consistency of the Tenth Circuit stands in contrast to the U.S. Ninth Circuit of Appeals, which has a 27-15 split of Democratic vs. Republican appointees and has a reputation for being a liberal court. The court affirmed California’s Proposition 8 was unconstitutional on the basis that marriage rights for gay couples can’t be rescinded once initially offered, and upheld California’s law prohibiting widely discredited “ex-gay” conversion therapy for minors.

As far as previous rulings, as state officials have noted in their requests for a stay on Utah same-sex marriages, no judge in the Tenth Circuit — at the district or the appeals level — has ever issued an opinion on marriage equality besides Shelby. As the judge noted in his ruling, the Tenth Circuit had determined in 2008 that sexual orientation discrimination doesn’t merit heightened scrutiny, but Shelby said that doesn’t matter because Utah’s ban on same-sex marriage doesn’t pass rational basis review.

But there is precedent for pro-gay rulings in the Tenth Circuit. In 2007, the appeals court in the case of Finstuen v. Crutcher struck down under the Full Faith & Credit Clause an Oklahoma statute barring recognition of adoptions by same-sex couples finalized in another state.

The timing for when the Tenth Circuit will make a decision regarding the appeal also remains in question. As Columbia University’s Goldberg noted, the process can take about a year, but there’s no standard timeline.

“Usually it can take up to a year, or even more, for an appeal to be briefed, argued and decided,” Goldberg said. “In marriage cases, there is a compelling reason for courts to act more quickly because people are being actively denied their rights, but there are no strict rules on the timetable.”

Davidson said it will take at least three months before a briefing is completed in the Kitchen case, but it could be considerably longer if parties seek an extension. More time is needed for oral arguments and for judges to write their decisions.

“Sometimes the period between notice of appeal and decision can be as short as six months or so, and sometimes it can be a matter of years,” Davidson said.

Shelby’s ruling had the distinction of being the first ruling on a marriage ban as a result of a federal lawsuit following the Supreme Court decision against DOMA. While other courts in New Jersey and New Mexico instituted marriage equality following the high court decision, these lawsuits were in state court, not federal court.

However, it’s not the most advanced marriage equality lawsuit. The case against Nevada’s ban on same-sex marriage, Sevcik v. Sandoval, is pending before the U.S. Ninth Circuit Court of Appeals. It remains to be seen which of these two cases, or yet another, will be the first marriage equality lawsuit to reach the Supreme Court in the aftermath of the decisions this year.

However the Tenth Circuit decides, the decision from Shelby is expected to have an impact on other courts evaluating the issue of marriage equality.

Davidson said Lambda Legal submitted a copy of the ruling to the U.S. District Court for the Western District Court just before it allowed a lawsuit challenging a state ban on same-sex marriage in Virginia to proceed.

“Judge Shelby’s opinion is very persuasive, in my view, and I think it will be given significant consideration by other judges deciding these issues,” Davidson said.

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Country’s first nonbinary state lawmaker participates in Gaza ceasefire hunger strike

Oklahoma state Rep. Mauree Turner is Muslim

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Oklahoma state Rep. Mauree Turner in front of the White House on Nov. 30, 2023, while taking part in a hunger strike for a ceasefire in the Gaza Strip. (Washington Blade photo by Michael K. Lavers)

The country’s first nonbinary state lawmaker last week participated in a hunger strike for a permanent ceasefire in the Gaza Strip that took place in front of the White House.

Oklahoma state Rep. Mauree Turner took part in the 5-day action alongside actress Cynthia Nixon, Virginia state Del. Sam Rasoul, Delaware state Rep. Madinah Wilson-Anton, New York State Assemblymember Zohran Mamdani, Michigan state Rep. Abraham Aiyash, former New York Congressional candidate Rana Abdelhamid, Muslim Girl.com Founder Amani Al-Khatahtbeh, Adalah Justice Project Director of Strategy and Communications Sumaya Awad and Linda Sarsour. The U.S. Campaign for Palestinian Rights, Jewish Voice for Peace, Democratic Socialists of America, IfNotNowMovement, Dream Defenders, the Institute for Middle East Understanding and the American-Arab Anti-Discrimination Committee are the organizations that either participated in the hunger strike or endorsed it. 

“This is the place where you should be,” Turner told the Washington Blade on Nov. 30 while they were standing in front of the White House.

Turner is from Ardmore, Okla., and has been a member of the Oklahoma House of Representatives since 2021. They are the first Muslim person elected to the Oklahoma Legislature.

“Oklahoma is no stranger to genocide, displacement, uprooting communities — beautiful, vibrant, vulnerable communities — just because they could,” said Turner, referring to the treatment of Native Americans in what became Oklahoma during the 1800s and early 1900s. “Specifically as a Muslim and as an Oklahoman it is my duty to be here.”

The hunger strike took place nearly two months after Hamas, which the U.S. has designated a terrorist organization, launched a surprise attack against communities in southern Israel from Gaza.

The Israeli government has said roughly 1,200 people have been killed, including at least 260 people who Hamas militants murdered at an all-night music festival in a kibbutz near the border between Israel and Gaza. The Israeli government also says more than 5,000 people have been injured in the country since the war began and Hamas militants kidnapped more than 200 others.

Yarden Roman-Gat, whose gay brother, Gili Roman, spoke with the Washington Blade on Oct. 30 in D.C., is one of the 105 people who Hamas released during a truce with Israel that began on Nov. 24 and ended on Dec. 1.

The Hamas-controlled Gaza Health Ministry says more than 15,000 people have died in the enclave since the war began. Israel after Oct. 7 cut electricity and water to Gaza and stopped most food and fuel shipments.

“It’s absolutely wild to think about what is happening to the Palestinian people in Gaza and in the West Bank,” said Turner.

Turner noted the war began two days before Indigenous Peoples’ Day.

“By October the 10th, when the world was really seeing what was happening in Gaza,” they said. “So many people who had celebrated specifically Indigenous Peoples’ Day had also sided with the Israeli government over the indigenous people of the land.”

‘The death of civilians is absolutely horrible’

Turner in response to the Blade’s question about the Israelis who militants killed on Oct. 7 emphatically said “the death of civilians is absolutely horrible.” Turner added they “cannot stress enough that when we back people into a corner, we don’t know what will happen.”

“The truth of the matter is our governments, our governmental officials do not have to put people in a corner,” said Turner.

Turner was particularly critical of the Israeli government’s actions in Gaza after Oct. 7.

“I don’t think there’s any place where a government has the power to shut off right water, food, healthcare supplies, things like that,” they said. “It’s just in doing so against a population that has 2 million people … that’s not anyone looking for equitability or justice. That is genocide against its people.”

Turner noted Republican Oklahoma Gov. Kevin Stitt continues to publicly support Israeli Prime Minister Benjamin Netanyahu. Turner told the Blade “when we oppress people over decades and decades … we cannot, we don’t get to cherry pick” or “we don’t get to tone police or however they are fighting back to be heard, to be, to live for vibrant lives.”

“We cannot tell oppressed people how to hurt out loud,” they said, specifically referring to Palestinian people. “We can create governments that care for people from a community standpoint who are thinking creatively about how we provide aid and support and we can ask our elected officials (members Congress, President Joe Biden, state and local officials) to teach truth. We can ask them to continuously make sure that we are providing the best care and understanding of the situations at hand. We can ask them to do a ceasefire to stop sending aid to the Israeli government and emboldening their military forces.”

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Climate change threatens LGBTQ resort communities

Provincetown, Cape Cod, other destinations face ‘existential’ challenge

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The beach in Fire Island Pines, N.Y., on New York's Fire Island has been the scene of extreme erosion in recent years. (Photo courtesy Actum Vice President Savannah Farrell)

As the world reckons with worsening impacts of climate change, some LGBTQ communities and destinations are grappling with the “existential” threat posed by the crisis.

The United Nations’ annual climate conference will take place in the United Arab Emirates through Dec. 12. LGBTQ climate activists, however, are concerned about representation at COP28 because the meeting is taking place in Dubai, which is in a country that criminalizes consensual same-sex sexual relations.

President Joe Biden on Nov. 14 delivered a statement on climate change policy during his administration. Biden spoke on the American Rescue Plan, the Fifth National Climate Assessment, new transparency about the state of the country’s climate and more. 

Biden emphasized “advancing environmental justice for disadvantaged communities, because they’re the ones always left behind.” Evidence of this trend can be found in LGBTQ destinations across the country.

Julian Cyr, a gay Massachusetts state senator who represents Provincetown and other towns on Cape Cod, recognizes the state’s importance to the LGBTQ community, stating that “according to the Census, it may be the highest per capita density of LGBTQ+ people certainly in the United States, and perhaps internationally.”

Provincetown, a popular gay destination located at the tip of Cape Cod, is facing worsening storms as climate change advances. These storms reshape the natural environment as well as damage the built environment. A series of Nor’easters in 2018 flooded Provincetown, damaging homes, businesses and the town hall. 

“The climate crisis is … already forcing us to do a lot of planning and reevaluation of coastal resilience of our built environment,” said Cyr. 

All hope isn’t lost yet for Massachusetts destinations. 

Then-Gov. Charlie Baker, a Republican, in 2022 introduced the Climate Roadmap, which aims for zero carbon emissions by 2050. The state also is building the country’s first offshore wind farm, Vineyard Wind. 

Cyr said citizens can push for climate change legislation by making the urgency known to their local elected officials.  

“This is truly existential for coastal, low-lying communities like those that I represent,” said Cyr. “It’s really important that constituents weigh in with their elected officials and make sure that they know that this issue is crucially important. I don’t know how we not solve this issue.”

Experts are seeing similar effects in nearby LGBTQ destinations, such as Cape Cod.

“One thing that we do see already is the effect of storms,” said Mark Adams, a retired Cape Cod National Seashore cartographer. “Those storms are the signal of sea level rise.”

Adams said that as a result of rising temperatures and new, intense storms, he is also starting to see damaged ecosystems, unnatural migration patterns of local wildlife, and planting-zones moving northward. Adams told the Washington Blade these changing ecological relationships may mean an uncertain future for life along the coast: the self-sustaining lifestyle and seafood could be at risk as ocean acidification puts shellfish in danger. 

“If you can’t get oysters and clams, that would really change life on Cape Cod,” he said. 

In addition to the damage caused by storms, Cape Cod’s natural environment is also facing the threat of littering and plastic pollution. While the area’s beaches keep tourism alive, fishing gear and marine debris washing up on the shore are growing concerns for the community. 

Adams said this is where the choices individuals make to avoid plastics will make a huge difference in the future of these communities. 

“There are little choices we can make to get off of the petroleum stream,” he said.

A car in floodwaters in Miami Beach, Fla., in July 2018. Climate change has made Miami Beach and other coastal cities more susceptible to flooding. (Washington Blade photo by Michael K. Lavers)

Aspen Gay Ski Week adapts to warmer winters

Aspen Gay Ski Week was the first gay ski week, and it is the largest such event in the world, and is the only non-profit gay ski week.

Rising temperatures and short winters are growing concerns for destinations like Aspen, Colo., that depend on snow, according to AspenOUT Executive Director Kevin McManamon.

“As our seasons get shorter … we have to plan for the future,” McManamon said.

Colorado has also faced increased forest fires in recent years.

The Marshall Fire in 2021 devastated the state, destroying buildings and killing two people. Increasingly dry conditions feed into these fires, which will mean more impacts on humans, nature, and infrastructure.

McManamon nevertheless said he is optimistic about Aspen Gay Ski Week’s future due to the organization’s forward thinking. One such initiative is its involvement with Protect Our Winters, an organization that advocates for protecting the environment with the support of the outdoor sports community. 

“The cool part about being here in Aspen and having a great relationship with Aspen Skiing Company is that they are … on the leading edge of climate change,” said McManamon. 

Stronger storms threaten Fire Island

Fire Island Pines on New York’s Fire Island has been a safe haven for the LGBTQ community since the 1950s.

Fire Island Pines Property Owners’ Association President Henry Robin notes natural disasters cause more damage in the community as opposed to those that are across the Great South Bay on Long Island because Fire Island is a “barrier island.”

“When Superstorm Sandy hit, or when a Nor’easter hits, or a hurricane hits, the brunt of the storm is first taken by the Pines,” said Robin. 

Robin said “the Pines is thriving” just over 11 years since Sandy, but there is no climate change response. The federal government implemented a beach restoration project for Fire Island, and later, the U.S. Army Corps of Engineers created an engineered beach for the Pines. 

Robin also formed three task forces — comprised of community members — to address local concerns, many of which were climate related, according to focus groups and a survey. Robin is also hoping to introduce recycling programs and solar energy to the Pines. 

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US announces additional sanctions for Ugandan officials

Anti-Homosexuality Act signed on May 29

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LGBTQ and intersex activists protest in front of the Ugandan Embassy in D.C. on April 25, 2023. (Washington Blade photos by Michael K. Lavers)

Secretary of State Antony Blinken on Monday announced sanctions against current and former Ugandan officials who committed human rights abuses against LGBTQ people and other groups.

“After Uganda’s flawed 2021 presidential elections, I announced a visa restriction policy targeting those believed to be responsible for, or complicit in, undermining the democratic process in Uganda,” said Blinken in a statement. “At that time, I implored the government of Uganda to significantly improve its record and hold accountable those responsible for flawed electoral processes, violence and intimidation.”

Blinken announced “the expansion of the visa restriction policy to include current or former Ugandan officials or others who are believed to be responsible for, or complicit in, undermining the democratic process in Uganda or for policies or actions aimed at repressing members of marginalized or vulnerable populations.” 

“These groups include, but are not limited to, environmental activists, human rights defenders, journalists, LGBTQI+ persons and civil society organizers,” he said. “The immediate family members of such persons may also be subject to these restrictions.”  

Blinken added the U.S. “stands by the Ugandan people and remains committed to working together to advance democracy, human rights, public health and mutual prosperity.”  

“I once again strongly encourage the government of Uganda to make concerted efforts to uphold democracy and to respect and protect human rights so that we may sustain the decades-long partnership between our countries that has benefited Americans and Ugandans alike,” he said.

Ugandan President Yoweri Museveni on May 29 signed the Anti-Homosexuality Act, which contains a death penalty provision for “aggravated homosexuality.” The State Department a few weeks later announced visa restrictions against unnamed Ugandan officials.

The Biden-Harris administration in October said it plans to remove Uganda from a program that allows sub-Saharan African countries to trade duty-free with the U.S. The White House has also issued a business advisory for Uganda in response to the Anti-Homosexuality Act.

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