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Gay juror decision bodes well for marriage cases: experts

Ninth Circuit applies heightened scrutiny to laws related to sexual orientation

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National LGBT Bar Association, Gay News, Washington Blade

The Ninth Circuit Court of Appeals applied heightened scrutiny in ruling against discrimination against gay jurors (image via wikimedia).

A ruling handed down by a federal appeals court on Tuesday in favor of LGBT non-discrimination in jury selection bodes well for the success of marriage equality litigation, according to legal experts who spoke to the Washington Blade.

Suzanne Goldberg, a lesbian and co-director of Columbia University’s Center for Gender & Sexuality Law, said the decision is important in and of itself, but also because of its impact on the case pending before the same court against Nevada’s ban on same-sex marriage.

“The ruling will make it even more difficult for Nevada’s marriage law to withstand the current challenge to it because heightened scrutiny means that the government will have to identify an ‘important’ state interest if it wants to continue to exclude gay and lesbian couples from marriage,” Goldberg said.

On Tuesday, a three-judge panel on the U.S. Ninth Circuit Court of Appeals determined the trial judge erred in allowing one litigant to remove a juror because of his sexual orientation, remanding the case for a new trial.

The case — Glaxo Smith Kline v. Abbott Laboratories — is the result of antitrust, contracts and business tort claims filed against the company for quadrupling the price of its protease inhibitor booster drug used by people with HIV. During jury selection, Abbott used its first peremptory challenge to strike a prospective juror after learning he was gay.

Writing for the majority, U.S. District Judge Roy Reinhardt ruled that Abbott “unconstitutionally used a peremptory strike” to exclude Juror B from the case because of his sexual orientation, but goes further by saying the court must apply heightened scrutiny in its ruling in the wake of the U.S. Supreme Court decision against the Defense of Marriage Act.

“Windsor requires that when state action discriminates on the basis of sexual orientation, we must examine its actual purposes and carefully consider the resulting inequality to ensure that our most fundamental institutions neither send nor reinforce messages of stigma or second-class status,” Reinhardt writes. “In short, Windsor requires heightened scrutiny.”

It’s not the first time that an appellate court has applied heightened scrutiny, or a greater assumption a law is unconstitutional, when considering a case related to sexual orientation. The U.S. Second Circuit Court of Appeals applied that standard when ruling in favor of Edith Windsor in her case against DOMA before that lawsuit came before the Supreme Court.

Several federal district courts have made similar rulings, as have the state high courts of California, Iowa, Connecticut and New Mexico. The view that laws related to sexual orientation should be subject to heightened scrutiny is also shared by the Obama administration.

But the decision in the Ninth Circuit is significant because it creates precedent within that jurisdiction to apply heightened scrutiny in the numerous cases before it involving gay people and may encourage courts outside the circuit to do the same.

Doug NeJaime, a law professor at the University of California, Irvine, said the court application of heightened scrutiny to its decision “is very significant.”

“This Ninth Circuit ruling will likely encourage other courts to engage with the issue of whether Windsor suggests some heightened form of scrutiny,” NeJaime said. “More concretely, it will directly influence the challenge to Nevada’s marriage law currently before the Ninth Circuit; whether sexual orientation merits heightened scrutiny for federal equal protection purposes has been an issue throughout that case, and the district court had decided that it did not.”

Still, NeJaime said the Ninth Circuit’s decision to draw on the DOMA decision to apply heightened scrutiny “will likely be proven controversial” because U.S. Associate Justice Anthony Kennedy never explicitly invoked the level of scrutiny in his ruling.

The high-profile case involving sexual orientation before the Ninth Circuit is Sevick v. Sandoval, the challenge filed by Lambda Legal against Nevada’s ban on same-sex marriage.

Jon Davidson, Lambda’s legal director, said the ruling will have “a very significant impact” on the court’s examination of the Nevada marriage case.

“The Ninth Circuit’s ruling that sexual orientation discrimination must be given heightened scrutiny is further proof of the progress we are making in convincing courts that the Constitution affords LGBT people meaningful protections against government-imposed inequality,” Davidson said.

Opponents of the case, known as the Coalition for the Protection of Marriage, filed their brief before the Ninth Circuit on the same day as the jury selection ruling, arguing in an untimely manner that “there is no legal or factual basis for deploying ‘heightened scrutiny’ in this case.”

But the Nevada marriage case isn’t the only lawsuit pending before the Ninth Circuit. Other cases in the jurisdiction are the recently filed challenge against Arizona’s ban on same-sex marriage and the case against Oregon’s ban, which is currently before  gay U.S. District Judge Michael McShane.

Additionally, the challenge against the Arizona law signed by Gov. Jan Brewer rescinding domestic partner benefits for gay state employees is also before the Ninth Circuit. The court’s use of heightened scrutiny in the juror case could influence the decision in any of these cases.

Davidson added the application of heightened scrutiny in the juror case also has implications on gay government workers seeking relief if they feel they’ve faced discrimination on the job.

“If any federal, state, or local government agency or official in any of the nine states in the Ninth Circuit discriminates against someone based on their sexual orientation, they will have the burden of demonstrating that their action substantially furthers an important and legitimate government goal,” Davidson said. “They will not be able to rely on hypothetical or after the fact justifications.”

Despite the celebration over the standard of review in the case, LGBT advocates are also celebrating the ruling in its own right for establishing non-discrimination against gay people in the juror selection process.

D’Arcy Kemnitz, executive director of the National LGBT Bar Association, commended the Ninth Circuit.

“Jury service is a fundamental civic duty,” Kemnitz said. “LGBT people are proud to serve the courts when summoned. While some might jest at jury duty, in fact the courts demand through a subpoena that a person suspends their usual daily activity to be part of the rule of law.”

Legislation known as the Jury ACCESS Act, which would institute a rule of non-discrimination for gay jurors in federal courts, is also pending before Congress. Last year, it was incorporated into the Senate version of the fiscal year 2014 financial services appropriations bill, but it’s technically no longer pending because Congress passed omnibus spending legislation instead.

Sen. Jeanne Shaheen (D-N.H.), chief sponsor of the legislation, commended the Ninth Circuit for issuing the ruling, but said more action is needed from Congress.

“There is no place for discrimination in our judicial system, and it should be the right and obligation of every citizen to sit on a jury,” Shaheen said. “The appellate court’s ruling is an important step, but I will continue working to make sure no American can be excluded from this important civil responsibility on the basis of their sexual orientation or gender identity.”

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Politics

Log Cabin Republicans host GOP candidates in tight Congressional races

Speakers included U.S. Rep. Ken Calvert and Senate candidate Eric Hovde

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MILWAUKEE — Republican Congressional candidates in some of the most anticipated races of the 2024 cycle delivered remarks at the Log Cabin Republicans Big Tent Event at Milwaukee’s Discovery World Art and Science Museum on Wednesday.

Speakers included U.S. Rep. Ken Calvert (Calif.), a 31-year incumbent with an anti-LGBTQ voting record who is narrowly trailing gay Democratic challenger Will Rollins, and Eric Hovde, an entrepreneur vying to unseat the first openly gay U.S. Senator, Tammy Baldwin (Wis.).

Nick Meade, president of LCR Coachella Valley, introduced the California congressman by acknowledging that Calvert “didn’t have the most loving relationship vote-wise for our community” when his district was redrawn to include Palm Springs in 2022.

“We met with Ken,” Meade said. “We met with him again. And he showed up again. And he showed up again. We asked him to come to events and he showed up to the events. We asked if he would support us financially. He did it and then he did it again. He continues to show up.”

Eventually, Calvert joined 46 other House Republicans in endorsing the Respect for Marriage Act, which codified federal protections for married same-sex and interracial couples and was signed into law by President Joe Biden in December 2022.

Meade explained that directly after the floor vote in July, the congressman passed LCR President Charles Moran a slip of paper on which he had written the number “47,” telling the conservative LGBT leader “this is for you guys.”

Addressing his remarks to Calvert, Meade said, “I know, as humble as you are, you say you didn’t whip votes, but there are a lot of your friends close to our jurisdiction, your [congressional district] that voted for it as well. I will never forget that.”

“I’ve seen a lot of changes in our party, and one of those things is just that, as Nick was pointing out, that we were able to pass the gay marriage initiative on the floor,” Calvert said. “That was a good day.”

The congressman then discussed the importance of providing for the men and women in the U.S. Armed Forces. “Everyone who serves in the military should be treated equally,” he said.

“It was refreshing to see the Log Cabin Republicans admit that Ken Calvert had never met a gay Republican until he decided he needed their support to win his new congressional district,” Rollins said in an emailed statement to the Washington Blade.

“But Ken might’ve forgotten to tell them that he voted against the Matthew Shepard Hate Crimes Bill, voted to defund LGBTQ senior centers, and just tried to make it harder for the spouses of LGBTQ military personnel killed in combat to collect survivor benefits.”

When introducing Hovde later in the program, Moran said, “Here in Wisconsin, we have a lesbian senator who’s a Democrat, who has been voting in lockstep consistently with President Biden, who has been making it worse for the lives of LGBT families, business owners, [and] service members, not only here, but also abroad.”

Senate candidate Eric Hovde speaks at the Log Cabin Republicans Big Tent Event at Discovery World in Milwaukee on Tuesday, July 17. (Washington Blade photo by Michael Key)

Baldwin should not expect the community to line up behind her reelection effort, Moran said, because gay voters “are not just voting on gay issues.”

Hovde told the audience he was “proud” that they had not “gotten caught up in the identity politics that the left has been pushing, you know, based on your race, your sexuality, your income level, your religion.”

“They want to try to drive a narrative and say you have to vote one way when you’re talking about issues that affect everybody,” he said.

The businessman then pivoted to voice his support for LCR’s positions on trans issues that were outlined earlier by Moran — specifically, opposition to irreversible gender-affirming medical interventions for patients younger than 18 and bans prohibiting transgender girls and women from competing against girls and women in sports.

In recent years, athletics have provided opportunities for girls that were not available in generations past, he said, so “I’m thankful that you are using, just, a common-sense approach to these issues because that’s where most Americans stand.”

“Men shouldn’t be playing and girls sports — period,” Hovde said, adding, “That doesn’t mean that we’re against transgender people.”

The Republican hopeful noted, “we don’t let people drive before the age of 16” and “we don’t let them drink alcohol till 21” so the idea that “we’re gonna push or allow them to change their gender at 13, 14, 12” is “insanity.”

Baldwin, Hovde said, is divisive for claiming that Donald Trump is “one of the most dangerous men with a dark soul,” and the Democratic senator is a “rubber stamp for the progressive socialist left” as evidenced by her refusal to confirm Ric Grenell’s nomination, during the Trump administration, to serve as U.S. ambassador to Germany (a post for which he was confirmed by vote of 56-42).

Hovde called Grenell, who also served as acting director of national intelligence and special presidential envoy for Serbia and Kosovo peace negotiations, “a super competent man with great foreign policy chops” and “exactly who you want serving in government.”

“As the first openly gay Senator, Tammy Baldwin didn’t run to make history, she ran to make a difference,” said Baldwin Campaign Spokeswoman Jackie Rosa. “And she’s proud of the difference she’s made to create jobs, lower health care costs, defend our freedoms, and improve the lives of millions of Wisconsinites.”

“Eric Hovde has to rely on divisive and false rhetoric about Tammy because he knows he doesn’t hold a candle to her legislative record,” she said.

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Africa

Uganda tightens grip on LGBTQ rights groups

Yoweri Museveni on July 16 dissolved country’s National Bureau of NGOs

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LGBTQ activists protest in front of the Ugandan Embassy in D.C. on April 25, 2023. Yoweri Museveni, the country's president, has signed a bill that tightens the grip on LGBTQ groups and other NGOs in the country. (Washington Blade photos by Michael K. Lavers)

The licensing, operation, and funding of LGBTQ organizations and other human rights groups in Uganda will now be under the government’s strict supervision.

President Yoweri Museveni on July 16 signed the Non-Governmental Organizations (Amendment) Act, 2024, that dissolves Uganda’s National Bureau of NGOs, which regulated the groups. The new law places its work under the Internal Affairs Ministry’s authority.

Museveni assented to bill after parliament passed it in April. MPs accused the NGOs Bureau of impeding the monitoring of NGOs activities, such as the promotion of homosexuality, that violate Ugandan law.

“I want you people (MPs) to be very careful when you are talking about NGOs,” Speaker Anita Among said during the parliamentary debate. “This is where money is being laundered into the country; this is how homosexuality money is coming into the country.”

The MPs noted that allowing the taxpayer-funded NGOs Bureau to operate independently without the State’s close supervision was putting Uganda at risk of losing its national objective of protecting its citizens from what they described as unwanted foreign practices through “funny money” given to LGBTQ rights organizations.

“I am aware of some NGOs that have been operating and doing things that are contrary to our own values and cultures, but I believe police and other agencies have been dealing with those other NGOs,” MP Sarah Opendi, who is a vocal LGBTQ rights opponent, said.

The MPs also backed the move for the NGOs Bureau to be under the Security Ministry’s oversight as “critical” by accusing it of bureaucracy in getting licenses and information. The NGOs regulator, however, does not allow the licensing of LGBTQ lobby groups for promoting homosexuality.

The NGOs Bureau in August 2022 halted the operations of Sexual Minorities Uganda, a group that fights discrimination against LGBTQ people in the country, because it was not registered by it or the Uganda Registration Services Bureau as Ugandan law requires. This decision came despite SMUG’s attempt in 2012 to reserve the name with the Uganda Registration Services Bureau for incorporation but the name was rejected for being “undesirable.”

The NGOs Bureau in stopping SMUG’s operations also noted the group did not have a physical office or location, and its representatives were reluctant to disclose it, despite partnering with the Health Ministry, the Uganda Human Rights Commission, and the Uganda police.

The NGOs Bureau, however, established government institutions that partnered with SMUG were unaware that it operated illegally.   

The NGOs Bureau’s move to halt SMUG’s operations “with immediate effect” prompted the group to challenge the decision in a lower court and then the Court of Appeal. SMUG lost both cases.    

SMUG Executive Director Frank Mugisha on Thursday, two days after Museveni signed the NGOs law, petitioned the Supreme Court to overturn the Court of Appeal’s ruling against SMUG.

“Today, we filed a case at the Supreme Court of Uganda to challenge the decision by the Court of Appeal rejecting the registration of Sexual Minorities Uganda,” Mugisha stated.    

Mugisha, together with two other LGBTQ activists, Dennis Wamala and Ssenfuka Joanita Wary, argue the Court of Appeal judges’ application of the principle of public morality in interpreting constitutional and human rights law in its March 12 ruling was erroneous.

“The learned justices of the Court of Appeal erred in law when they held that the proposed objectives of Sexual Minorities Uganda (SMUG) are criminal and prohibited under Section 145 of the Penal Code Act,” reads the Supreme Court petition.

The three appellants also argue the Court of Appeal judges incorrectly maintained SMUG’s name was “undesirable” and the NGOs Bureau was within its mandates to disallow the registration in the “public interest” under the Companies Act. They also argue the Court of Appeal judges erred when they dismissed their appeal and want the Supreme Court to grant them to fully consider their petition.

 “It is proposed to ask the Supreme Court for orders that the decision and orders of the Court of Appeal be set aside and substituted with orders of this honorable court,” reads the petition.  

Activists consider the NGOs Bureau and the Uganda Registration Services Bureau’s decision to reject SMUG’s registration a violation of the right to freedom of expression and association. 

The appeal of the Court of Appeal’s ruling to the Supreme Court comes on the heels of the appeal of the Constitutional Court’s ruling that upheld the Anti-Homosexuality Act that Museveni signed in May 2023. Mugisha is among the 22 activists who petitioned the Supreme Court to overturn the Constitutional Court’s ruling on July 11.

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Politics

Log Cabin Republicans president, Ric Grenell outline conservative LGBTQ positions

Big Tent Event took place outside the Republican National Convention on Wednesday

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From left, former U.S. Ambassador to Germany Richard Grenell and Log Cabin Republicans President Charles Moran attend the Log Cabin Republicans Big Tent Event at Discovery World in Milwaukee on July 17, 2024. (Washington Blade photo by Michael Key)

MILWAUKEE — Log Cabin Republicans President Charles Moran outlined his organization’s position on divisive LGBTQ issues during the organization’s Big Tent Event offsite from the Republican National Convention in Milwaukee on Wednesday.

“As conservative members of the LGBT community, we’re extremely concerned” that a “radical gender theory” is “being advanced in the name of LGBT equality,” Moran said in a video address following his remarks at the event.

“The last three years have been a real watershed moment for these radical leftists working in conjunction with woke corporations, out of sync academics, and cultural elitists who want to hijack our hard-earned civil rights movement to advance an extremist agenda,” he said.

The problem, Moran said, is that “Americans are seriously reconsidering their support for LGBT equality as a result” as evidenced by a Gallup poll last year which found for the first time that general and broad support for LGBTQ inclusion was in decline.

“The left’s war on our traditional values is starting to take a toll on the overall amount of acceptance and tolerance for average gays and lesbians in this country,” Moran said.

The Log Cabin president then explained how his organization had worked with Republican Florida Gov. Ron DeSantis and the Republican state legislature on the controversial Parental Rights in Education (“Don’t Say Gay”) law, which “prevented mandated curriculum from being instructed on sexual orientation and gender identity from age three to grade three.”

Moran characterized the legislation as policy driven by a “common sense” approach, noting, however, that “in 2023, when the presidential primary races started kicking into high gear, we saw a broad push across the nation with legislation that was an overreaction and poorly thought out.”

“That next year, the reintroduction of that same Florida bill took the prohibition on those conversations all the way up from age three to age 18 in Florida schools, which was not practical nor needed, and thus we opposed that new version of the bill,” Moran said. “It just wasn’t smart public policy.”

Broadly, “average Americans see themselves as tolerant and inclusive — and we when we present a message that smacks of homophobia, anger, vitriol, and exclusion, they will vote against us every time,” he said.

“Eighty percent of this country supports equality and inclusion for the Ls, the Gs, the Bs, and the Ts,” added Moran, “but this comes with some guardrails concerning specific policy debates.”

“This is indicative of a very serious messaging problem. This is where we at Log Cabin Republicans need to step in to help the Republican Party steer through these issues with precision,” he said.

In practical terms, Moran said this will mean, “One, fight back against leftist extremists and cultural Marxists who are trying to undo strong cultural mores in society that are hijacking our civil rights movement and two, fight back against hardline social conservatives who never accepted the real evolution and acceptance of LGBT equality in the first place from dragging the Republican Party back into the middle of a gay marriage fight that has long been settled.”

With respect to specific policy debates, he highlighted “one, the protection and integrity of women’s spaces, two, support the preservation of women’s sports and Title IX, three, strong parental consent at every level in our schools, and four, no permanent gender transition under the age of 18.”

Taking the stage before Moran was former U.S. Ambassador to Germany Ric Grenell, who also served as acting director of national intelligence during the Trump administration.

The diplomat and conservative political operative celebrated the Republican Party’s issuance of a new platform this year that, for the first time, does not express opposition to same-sex marriage.

The two-page document does, however, call for banning transgender girls and women from competing in girls and women’s sports, as well as a proposal to cut federal funding for “any school pushing critical race theory, radical gender ideology, and other inappropriate racial, sexual, or political content on our children.”

“I couldn’t be more proud to have this platform under Donald Trump,” Grenell said. “After the platform was passed, President Trump called me and he said, ‘did you see what we did?’ I said, ‘Yes, sir, I did and it’s amazing. You know, I want you to know that we’re gonna stay quiet until it really gets into the fabric and we’ll give it a little time. And you know, I know it’s gonna be a little hard for some people. So, we’ll give it a little time before we talk about it.’ He goes, ‘No, we won! Start talking about it.’ He’s all in. He’s all in with us.”

“In 2016, when Donald Trump came to run this party, I never once worried that he would somehow use us politically,” Grenell said. “You’ll notice he doesn’t. He absolutely believes that we are part of the American society. And he thinks it’s really weird if you don’t.”

At the same time, however, he stressed that Trump expects “us to police our own community to make sure we call out the radical left” and told the audience they “should be very upfront about rejecting the crazy radical gay left” who “don’t speak for us.”

“Now, the gay left is going to constantly tell you that you need special protections because they like to keep us in a box and take us out six months before elections and parade us around,” Grenell said. “We don’t do that. We want to be included at the front.”

He added that “I got in the most trouble for when I said that the State Department should cut all of its DEI programs out. We don’t need a special office down the way that has glitter and rainbows. We want to be at the table of substance. When you do the African policy, we want to be in the room. When you develop European policy, we want to be in the room.”

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