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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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Michigan

Progressives score victory as El-Sayed wins Mich. Senate primary

Democratic newcomer will face Rogers in November

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Democratic Senate candidate Abdul El-Sayed (Screen capture via MS NOW/YouTube)

Michigan held its primary on Tuesday, allowing the two major political parties to select their nominees to go head-to-head for the state’s U.S. Senate seat.

NBC News called the Democratic race early, giving the victory to physician Abdul El-Sayed over incumbent U.S. Rep. Haley Stevens (D-Mich.) in an extremely close primary. El-Sayed won 48.5 percent of the primary vote, with Stevens trailing by just one percentage point at 47.5 percent.

Both candidates have campagined on supporting the LGBTQ community through different avenues— for El-Sayed he focused on his past promoting HIV and PrEP funding and research. Stevens focused on her legislative history working to support transgender rights in the state.

This is a major win for progressive Democrats, who have been bearing the brunt of political attacks from President Donald Trump, the Republican Party, and centrist Democrats.

El-Sayed, a former health director in Detroit, ran his campaign largely on making life in the Great Lakes State more affordable amid rising costs. His policies include promoting “Medicare for All,” pushing health policy that targets the regressive efforts of the Trump-Vance administration that rolls back funding for both Women and LGBTQ people, minimizing the growing amount of money in politics, and he was very vocal in his criticism of Stevens for supporting aid to Israel. He was endorsed by two major progressives — U.S. Sen. Bernie Sanders (I-Vt.) and U.S. Rep. Alexandria Ocasio Cortez (D-N.Y.).

Stevens, the four-term congresswoman, is much closer to establishment Democrats on policy than El-Sayed.

During her time in the federal government, she has consistently supported the Equality Act, which would add sexual orientation and gender identity as protected classes under the Civil Rights Act of 1964. She has also emphasized supporting local manufacturing and lowering housing costs in the state.

She was named to Advocates for Trans Equality’s 118th Congressional Champions list for her pro-trans policies and was endorsed by establishment heavy hitters Michigan Gov. Gretchen Whitmer and Senate Minority Leader Chuck Schumer (D-N.Y.).

The contentious race boiled down not only to Michigan affairs but also extended to international conflicts — namely Palestine. (South Africa has filed a case in the International Court of Justice in The Hague that accuses Israel of committing genocide in the Gaza Strip after Oct. 7.) This primary also acted as one of the first major races that pushed back against AIPAC, a lobbying group that works to promote pro-Israel candidates in U.S. elections. The group has been involved in domestic politics since 1954.

AIPAC devoted a massive amount of money to this race.

The Associated Press reported that the pro-Israel lobbying group spent more than $30 million on ads against El-Sayed because of his vocal denunciation of Israel and his continued criticism of its policies towards Palestine.

Michigan has a large Muslim and Arab American population, which could, in part, explain how El-Sayed was able to win.

The Republican side was far less competitive. Former U.S. Rep. Mike Rogers (R-Mich.) ran unopposed and clinched the GOP nomination. He has consistently held anti-LGBTQ positions, going as far as voting multiple times for a federal constitutional amendment to ban same-sex marriage, voting against repealing the military’s “Don’t Ask, Don’t Tell” policy, and supporting efforts to directly target the attempted expansion of Title IX protections to include trans people.

El-Sayed will face off against Rogers in November for Michigan’s Senate seat — one that could have lasting impacts not only on the state’s politics but also on the Republicans’ narrow Senate majority and Trump’s political agenda.

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White House orders warning signs at Smithsonian over gender identity exhibits

Administration criticizes National Museum of American History

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Secretary of the Interior Doug Burgum is expected to install warning signs outside the National Museum of American History warning visitors of supposedly anti-American content. (Photo courtesy of the Office of the Governor of North Dakota)

The Trump administration will install temporary warning signs outside the Smithsonian’s National Museum of American History after releasing a report accusing the museum of promoting what it calls “radical” gender ideology and other politically biased content.

According to the Executive Order, “For purposes of policy formulation under EO 14253, this review of the National Museum of American History concludes that NMAH, by the intention and at the direction of current Museum and Smithsonian leadership, has become subject to institutional capture by a radical, activist ideology that is fundamentally opposed to telling the noble, honest story of the great country we know and love.”

Executive Order 14253 refers to what the White House has deemed the “Restoring Truth and Sanity to American History” order. Therefore, the Trump administration has said it will take all available steps to ensure that the issues in the report are addressed and rectified.

Without specifying, the White House has stated that warnings will be posted along NMAH to alert visitors to sections of the museum it has deemed are in violation according to the report.

“The Secretary of the Interior, acting through the Director of the National Park Service (NPS) and in coordination with the Assistant to the President for Domestic Policy, shall install temporary signage along the NPS-maintained sidewalks and walkways used by the public to access the Museum, informing visitors of the findings of the Report and of the policy set forth in section 1 of this order,” the Executive Order states.

The warnings were raised in a 162-page report issued by the Domestic Policy Council. The report detailed ways in which the National Museum of American History (NMAH) has “poorly” portrayed American history and insufficiently highlighted the founding story during America 250th celebrations.

The report outlined key findings of the NMAH. One of these findings was the Center for Restorative History within the museum, which has stated its purpose is to “encourage systemic change” by highlighting diverse groups. However, the report states that it highlights every group of Americans except for straight and white Americans.

The Domestic Policy Council accused the museum of engaging in “transgender activism.” According to the report, examples include referring to “biological men” as women or girls, displaying what it describes as sexually suggestive content, and incorporating discussions of gender fluidity, gender identity, and gender nonconformity into the museum’s educational curriculum, “Becoming US.”

The report also criticizes the curriculum for using the term “transgender” when discussing gender-nonconforming people and encouraging individuals to ask a person’s pronouns when meeting them. It further objects to exhibits stating that “transgender, nonbinary, and cisgender female athletes” continue to struggle for and demand equality.

It also condemns what it refers to as explicit content in an exhibition, “Girlhood (It’s Complicated)”, such as chest binders, questioning gender testing in women’s sports, and referring to biological females as “people inhabiting female bodies.”

Additionally, the report accuses the museum of no longer participating in flag-celebrating ceremonies because it was “too busy” preparing for June Pride and WorldPride events. It states, “As Director Hartig explained in a June 2024 presentation, all her attention was focused on flying the Smithsonian Pride Alliance’s ‘intersexual pride flag during June’ in 2023 and 2024.”

On July 9, the American Historical Association issued a statement rejecting the report’s findings.

In regard to the report, it states, “Its anonymous authors overlook a central lesson of the nation’s founding: the United States was forged by finding common purpose amid intense divisions, conflicts, and disagreements.” They argue that only “honest history” can tell the true history of the nation.

House Republicans led a subcommittee hearing that questioned Smithsonian Director Hartig extensively. A main focus of the questions was on the exhibits related to gender identity and whether they were appropriate. In the hearing, Rep. Nancy Mace asked: “When was your gender revealed to you, Dr. Hartig?”

In response to questioning, Hartig stated that the institution is nonpartisan and does not push a specific agenda.

Hartig published a two-page statement ahead of her hearing outlining her thoughts on the situation. In the report, she states that the institution is always open to criticism and will continue to look for ways to improve, but she sees the report as misleading.

“I can attest that the report does not fairly characterize the full body of work at this museum. I am familiar with the depth and breadth of our collections, exhibits, and programming. And while I recognize there is always room for improvement, I also know the beauty, inspiration, and expertise that exists in our museum,” Hartig wrote.

Democrats created their own 16-page report as a rebuttal to the Domestic Policy Council’s report. It argued that the attacks by the current Trump administration are another example of its attempt to rewrite history. Additionally, the report states that no policy changes were included in the Executive Order, as that is beyond the President’s role. “The Report recommends nothing. That is no accident. To recommend an action, the Report would need to identify who is legally empowered to take it, and its own opening chapter concedes the President’s only power is to ‘urge’,” House Democrats wrote.

It is still unclear when the temporary warnings will be installed or what form they will take beyond the requirements outlined in the executive order.

An exhibit at the Smithsonian. (Washington Blade photo by Landon Shackelford)

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Trump ends direct HIV prevention funding to community groups

Advocates say transfer of funds to states may disrupt local programs

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The Trump administration will discontinue direct federal funding of community-based organizations that provide HIV prevention services. (Washington Blade file photo by Michael Key)

A decision by the U.S. Office of Management and Budget (OMB) at the request of the Trump administration to discontinue direct federal funding of community-based organizations and clinics that provide HIV prevention services has raised concern among community health advocates, including LGBTQ advocates.

 News surfaced earlier this month that the OMB informed the U.S. Centers for Disease Control and Prevention that it would not renew $46 million in funding for 96 community-based organizations that provide HIV testing, referrals to medical care, and arrangements for obtaining pre-exposure HIV prevention medication known as PrEP that has been shown to be 99 percent effective in preventing HIV infection.

Under the new policy arranged by OMB, the funds will be redirected to the states to be allocated to state and local health departments. The policy calls for states to encourage but not require their respective state and local health departments to allocate some of those funds for community-based organizations. Under the new policy, the funding is scheduled to last until May of 2027, before a renewal decision is made.

Some political observers have speculated that the decision to end direct federal funding to community-based organizations could be motivated by the Trump administration’s hostility to diversity, equity, and inclusion or DEI programs and organizations that promote those programs, with the belief that some of the groups receiving the federal HIV prevention funds are promoting DEI.

Carl Schmid, executive director of the D.C.-based HIV+ Hepatitis Policy Institute, is among the leaders of many AIDS advocacy organizations expressing strong opposition to the OMB action. Schmid said that in places like D.C. and some states, local officials will be willing to redirect the federal funds to local community-based organizations.

A list of the 96 community-based organizations across the country that are currently receiving the federal AIDS funds includes the D.C.-based Whitman-Walker Health, which has a long history of healthcare support for the LGBTQ community, and La Clinica del Pueblo, which reaches out to the Latino community.

 Schmid said Whitman-Walker and La Clinica del Pueblo have longstanding good relationships with the local D.C. government.

“But other states and jurisdictions don’t have that relationship with the community-based organizations,” Schmid said. “It depends on the state,” he said, adding, “Not all states send their money to the communities that really need it most. And not all states are fast in getting money to the community-based organizations.” 

Spokespersons for Whitman-Walker and La Clinica del Pueblo couldn’t immediately be reached for comment on whether they think the Trump administration’s latest action related to funding will adversely impact their respective organizations.  

 Schmid said under the current federal grant program slated to be discontinued, which has been in effect for at least five years, HIV-related health organizations receiving the federal grant funds were eligible for an existing federal policy enabling them to purchase HIV-related medication, including the PrEP prevention medication, at a significant discount from pharmaceutical companies. With the ending of the direct federal HIV funds to community-based organizations, Schmid said it was unclear whether problems may surface in obtaining drug discounts.

“They could still qualify as a sub-grantee from a state,”  Schmid said. “But what if they don’t get that grant again? They would not be able to qualify to obtain the drugs” at the discounted price, he said.

Among the organizations expressing strong concern over the decision to discontinue the direct HIV prevention funding to community-based organizations has been the Federal AIDS Policy Institute and its subgroup called the HIV Prevention Action Coalition.

In a July 22 letter bearing the names of 71 community-based organizations from throughout the country sent to U.S. Department of Health and Human Services Secretary Robert F. Kennedy Jr. and Centers for Disease Control and Prevention Acting Director Jay Bhattacharya, the group called for the Trump administration to “reconsider” ending the current funding policy.  

 “Ending this program without a clear plan for what comes next would dismantle prevention infrastructure that has taken more than three decades of federal investment to build and do so just as that long record of measurable returns is accelerating,” the letter states.

It says the initiative by President Trump in his first term as president to end the HIV epidemic and reduce new HIV infections by 90 percent by 2030 was moving ahead by the funding program for community-based organizations that the administration now wants to end. 

“Discontinuing this program would also cost far more than it saves,” the letter says. “Every HIV transmission prevented avoids an estimated lifetime treatment cost of roughly half a million dollars per person to the healthcare system – costs that fall heavily on taxpayer-funded programs, including Medicaid, Medicare, and the Ryan White HIV/AIDS program,” the letter continues.

“The choice before the administration is straightforward: a modest, targeted investment in prevention now, or far greater public expense for treatment later,” the letter concludes. 

Spokespersons for the OMB and the Department of Health and Human Services, which oversees the CDC, have not immediately responded to news media requests for comment on the opposition to the funding change policy.

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