News
Once again, marriage equality inches closer to Supreme Court
At least four appeals courts set to consider issue this spring
David Boies and Ted Olson are leading the VIrginia lawsuit heading to the U.S. Supreme Court (Washington Blade photo by Michael Key).
Not even a year has passed since the U.S. Supreme Court issued its landmark decisions against the Defense of Marriage Act and California’s Proposition 8, but a number of cases are already lining up that would enable the high court to make a nationwide ruling in favor of marriage equality.
At least four appellate courts are set to consider the issue this spring amid five district court decisions in favor of marriage equality in Utah, Oklahoma, Ohio, Kentucky and Virginia. Once the appellate courts make their decisions, they will likely be appealed this year to the Supreme Court, which would give justices the opportunity to make a final decision in 2015.
Although the Ohio ruling was limited to death certificates for married gay couples and the Kentucky ruling only provided recognition of out-of-state same-sex marriages, each of the rulings handed down since the DOMA decision were in favor of marriage equality. And in each ruling, justices invoked the decision against DOMA as part of their reasoning for determining state constitutional amendments against same-sex marriage violated the Constitution.
U.S. District Judge John Heyburn, an appointee of former President George H.W. Bush, noted last week in his decision that the words of the DOMA decision by U.S. Associate Justice Anthony Kennedy compels him to rule against Kentucky’s marriage laws.
“Ultimately, the focus of the Court’s attention must be upon Justice Kennedy’s majority opinion in Windsor,” Heyburn said. “While Justice Kennedy did not address our specific issue, he did address many others closely related. His reasoning about the legitimacy of laws excluding recognition of same-sex marriages is instructive. For the reasons that follow, the Court concludes that Kentucky’s laws are unconstitutional.”
Ted Olson, the Republican half of the legal duo arguing against Virginia’s ban on same-sex marriage, during a conference call Friday noted the consistency with which district courts have struck down anti-gay marriage amendments in the aftermath of the DOMA decision.
“Federal courts are consistently, regularly now, affirming the right of gay and lesbian citizens to be a part of the population of the rest of our citizens with equal rights to the fundamental right of marriage,” Olson said.
The cases against same-sex marriage bans in Utah and Oklahoma are the furthest advanced of all the lawsuits seeking marriage equality. They’re before the U.S. Tenth Circuit Court of Appeals in Denver, where oral arguments are scheduled in Utah case for April 10 and the Oklahoma case for April 17. The National Center for Lesbian Rights has joined the law firm of Magleby & Greenwood, P.C., as counsel in the Utah case.
Just behind that lawsuit is the case seeking marriage equality in Nevada filed by Lambda Legal known as Sevcik v. Sandoval. After Nevada Attorney General Catherine Cortez Masto declared her intent to withdraw her brief in favor of the marriage ban, the U.S. Ninth Circuit Court of Appeals last week acceded to her request and pledged to proceed with the lawsuit on an expedited basis, although no date has been set for oral arguments.
The Ohio case has already been appealed to the U.S. Sixth Circuit Court of Appeals, which is also the destination of the Kentucky lawsuit. These cases are also in their early stages at the appellate level, and schedule hasn’t been determined.
And the court ruling against Virginia’s ban on same-sex marriage, the latest to come down from a federal court, will be headed to the U.S. Fourth Circuit of Appeals. Although Virginia Attorney General Mark Herring isn’t defending the ban against same-sex marriage in court, Olson said he sees no standing issue in the case and because county clerks are participating in the lawsuit, the state continues to enforce the law.
But according to Lambda Legal, a total of 52 marriage equality lawsuits are pending in 27 states, and any of the cases at district court level could soon join those at the appellate level.
A judge will likely render a decision soon in the other lawsuit seeking marriage equality in Virginia, which was filed by the American Civil Liberties Union and Lambda Legal. A judge in Michigan has set a trial for that state’s constitutional ban on same-sex marriage on Feb. 25, just as a trial has been set in the Pennsylvania case for June 9.
Given the sheer number of cases making their way through the courts, David Boies, the Democratic half of the legal duo in the Virginia lawsuit, said the Supreme Court would have no shortage of cases from which to choose by the time it begins its term in the fall.
“I think they will all get to the Supreme Court at about the same time,” Boies said. “The Supreme Court can decide to take them all and consolidate them, the Supreme Court can take one or more of the cases, but not all of then. I think that is something that will be determined by the Supreme Court, and, to some extent, by the timing of the court of appeals decision.”
It’s technically possible for the Supreme Court to take up this issue this term once those cases are appealed, which would mean a nationwide ruling by June.
Jon Davidson, legal director for Lambda Legal, nonetheless said it “seems extraordinarily unlikely” the litigation would play out in that way.
“Even if an appellate decision in one of these cases were issued by May, a certiorari petition likely would not get filed until the summer, and the Supreme Court wouldn’t act on that until October,” Davidson said. “It does not have to grant cert on the first, or, even any of these cases. Even if it does, there likely wouldn’t be a decision until the spring of 2015.”
One issue to watch as these cases make their way up is whether courts apply heightened scrutiny, or a greater assumption a law is unconstitutional, to their decisions on the marriage bans. Such a determination would designate gay people with a “quasi-suspect classification” and establish precedent making other laws related to sexual orientation less likely to stand up in court.
When it ruled on the DOMA case last year, the U.S. Second Circuit Court of Appeals already set a precedent for heightened scrutiny for laws related to sexual orientation, but every state in that jurisdiction — New York, Vermont and Connecticut — already has marriage equality.
More recently, the U.S. Ninth Circuit Court of Appeals applied heightened scrutiny in its decision for Smith Kline v. Abbott Laboratories, which determined that jurors cannot be excluded from a trial because of sexual orientation.
Because of the application of heightened scrutiny in that case, the Nevada attorney general stopped defending her state’s marriage ban. Further, expectations are high that courts in Oregon and Arizona, which lie within that jurisdiction, will strike down bans in those states.
It was speculated the Supreme Court took up the Edith Windsor’s challenge to DOMA as opposed to others because the Second Circuit applied heightened scrutiny on that decision, although the high court never explicitly addressed the issue of heightened scrutiny in its ultimate decision. Eyes will be on the Supreme Court to see if it will take up the Ninth Circuit marriage case among others to resolve the issue of heightened scrutiny in the next go-around with marriage equality.
Doug NeJaime, who’s gay and a law professor at University of California, Irvine, nonetheless said he doesn’t think the Supreme Court has interest in resolving this issue for laws related to sexual orientation.
“The Supreme Court in Windsor didn’t explicitly reach this question, even though the lower court had based its decision on heightened scrutiny,” NeJaime said. “Given that, it doesn’t seem the Court is particularly interested in resolving that question, and I don’t think it will do much to persuade the court to take or not take a case.”
Another question is the extent to which the Obama administration will participate in the pending lawsuits. The Justice Department helped litigate against DOMA as party in the lawsuit and assisted in the lawsuit against Prop 8 as a friend of the court, although in the latter case the administration filed a brief and took part in oral arguments only when the litigation reached the Supreme Court.
A number of LGBT advocates have said they’d welcome participation from the Obama administration in the marriage equality cases without making a full-throated call for assistance. On Friday, White House Press Secretary Jay Carney wouldn’t make a prediction on whether the administration will take part and deferred comment to the Justice Department, which hasn’t responded to the Blade’s request to comment.
The opportunity for the Justice Department to file a brief in the Nevada case before the Ninth Circuit has already passed, but another opportunity will come soon. The deadline for filing a friend-of-the-court brief before the Tenth Circuit in the Utah case is March 4.
Erik Olvera, spokesperson for the National Center for Lesbian Rights, echoed the sense of other advocates on the issue, saying a friend-of-the-court brief from the Obama administration would be “welcome” in the Utah case.
“We always welcome the Obama administration to express its views in cases concerning civil rights protected by the U.S. Constitution,” Olvera said.
Chile
Far-right José Antonio Kast elected Chile’s next president
Advocacy group declares ‘state of alert’ over president-elect’s opposition to LGBTQ rights
José Antonio Kast on Sunday won the second round of Chile’s presidential election.
Kast is the far-right leader of the Republican Party who was a member of the country’s House of Deputies from 2002-2018. He defeated Jeannette Jara, a member of the Communist Party of Chile who was former labor and social welfare minister in outgoing President Gabriel Boric’s government, by a 58.2-41.8 percent margin.
The election’s first round took place on Nov. 16.
Kast and Jara faced each other in the runoff after no candidate received at least 50 percent of the vote in the first round. Kast will take office on March 11.
“Under his leadership, we are confident Chile will advance shared priorities to include strengthening public security, ending illegal immigration, and revitalizing our commercial relationship,” said U.S. Secretary of State Marco Rubio on Sunday in a statement. “The United States looks forward to working closely with his administration to deepen our partnership and promote shared prosperity in our hemisphere.”
The Washington Blade has previously reported Kast has expressed his opposition to gender-specific policies, comprehensive sex education, and reforms to Chile’s anti-discrimination laws. The president-elect has also publicly opposed the country’s marriage equality law that took effect in 2022.
The Movement for Homosexual Integration and Liberation, a Chilean LGBTQ and intersex rights group known by the acronym Movilh, in a statement acknowledged the election result. Movilh also declared a “state of alert, given this leader’s (Kast’s) public and political trajectory, characterized for decades by systematic opposition to laws and policies aimed at equality and nondiscrimination of LGBTIQ+ individuals.”
“We urge the president-elect and far-right sectors that follow him to understand and internalize (the fact) that the rights of LGBTIQ+ people are inscribed in the universality of human rights, and they are not built upon an ideology or a political trend,” said Movilh in its statement. “This is not, and never has been, a left-wing or right-wing issue, although some on both sides have gone to great lengths to suggest otherwise, without any basis other than their own partisan or electoral aspirations.”
Organizado Trans Diversidades, a group that advocates on behalf of trans and nonbinary Chileans, on social media said it will “continue the fight for our community’s human rights.”
Virginia
DOJ seeks to join lawsuit against Loudoun County over trans student in locker room
Three male high school students suspended after complaining about classmate
The Justice Department has asked to join a federal lawsuit against Loudoun County Public Schools over the way it handled the case of three male high school students who complained about a transgender student in a boys’ locker room.
The Washington Blade earlier this year reported Loudoun County public schools suspended the three boys and launched a Title IX investigation into whether they sexually harassed the student after they said they felt uncomfortable with their classmate in the locker room at Stone Bridge High School in Ashburn.
The parents of two of the boys filed a lawsuit against Loudoun County public schools in U.S. District Court for the Eastern District of Virginia in Alexandria. The Richmond-based Founding Freedoms Law Center and America First Legal, which White House deputy chief of staff Stephen Miller co-founded, represent them.
The Justice Department in a Dec. 8 press release announced that “it filed legal action against the Loudoun County (Va.) School Board (Loudoun County) for its denial of equal protection based on religion.”
“The suit alleges that Loudoun County applied Policy 8040, which requires students and faculty to accept and promote gender ideology, to two Christian, male students in violation of the Equal Protection Clause of the 14th Amendment to the U.S. Constitution,” reads the press release.
Assistant Attorney General Harmeet K. Dhillon of the Justice Department’s Civil Rights Division in the press release said “students do not shed their First Amendment rights at the schoolhouse gate.”
“Loudoun County’s decision to advance and promote gender ideology tramples on the rights of religious students who cannot embrace ideas that deny biological reality,” said Dhillon.
Outgoing Virginia Gov. Glenn Youngkin and outgoing Virginia Attorney General Jason Miyares in May announced an investigation into the case.
The Virginia Department of Education in 2023 announced the new guidelines for trans and nonbinary students for which Youngkin asked. Equality Virginia and other advocacy groups claim they, among other things, forcibly out trans and nonbinary students.
The U.S. Department of Education’s Office of Civil Rights in February launched an investigation into whether Loudoun County and four other Northern Virginia school districts’ policies in support of trans and nonbinary students violate Title IX and President Donald Trump’s executive order that prohibits federally funded educational institutions from promoting “gender ideology.”
The White House
As house Democrats release Epstein photos, Garcia continues to demand DOJ transparency
Blade this week sat down with gay House Oversight Committee ranking member
Democrats on the House Oversight Committee have released new photos from Jeffrey Epstein’s email and computer records, including images highlighting the relationship between President Donald Trump and the convicted sex offender.
Epstein, a wealthy financier, was found guilty of procuring a child for prostitution and sex trafficking, serving a 13-month prison sentence in 2008. At the time of his death in prison under mysterious circumstances, he was facing charges of sex trafficking and conspiracy to traffic minors.
Among those pictured in Epstein’s digital files are Trump, former President Bill Clinton, former Trump adviser Steve Bannon, actor and director Woody Allen, economist Larry Summers, lawyer Alan Dershowitz, entrepreneurs Richard Branson and Bill Gates, and Andrew Mountbatten-Windsor.
One photo shows Trump alongside Epstein and a woman at a Victoria’s Secret party in New York in 1997. American media outlets have published the image, while Getty Images identified the woman as model Ingrid Seynhaeve.
Oversight Committee Democrats are reviewing the full set of photos and plan to release additional images to the public in the coming days and weeks, emphasizing their commitment to protecting survivors’ identities.
With just a week left for the Justice Department to publish all files related to Epstein following the passage of the Epstein Files Transparency Act, which requires the Justice Department to release most records connected to Epstein investigations, the Washington Blade sat down with U.S. Rep. Robert Garcia (D-Calif.), the ranking member on the Oversight Committee to discuss the current push the release of more documents.
Garcia highlighted the committee’s commitment to transparency and accountability.
“We’ve said anything that we get we’re going to put out. We don’t care who is in the files … if you’ve harmed women and girls, then we’ve got to hold you accountable.”
He noted ongoing questions surrounding Trump’s relationship with Epstein, given their long history and the apparent break in friendship once Trump assumed public office.
“There’s been a lot of questions about … Donald Trump and Jeffrey Epstein. They were best friends for 10 years … met women there and girls.”
Prior to Trump’s presidency, it was widely reported that the two were friends who visited each other’s properties regularly. Additional reporting shows they socialized frequently throughout the 1990s and early 2000s, attending parties at Trump’s Mar-a-Lago resort in Florida and Epstein’s residences. Flight logs from an associate’s trial indicate Trump flew on Epstein’s private jet multiple times, and Epstein claimed Trump first had sex with his future wife, Melania Knauss, aboard the jet.
“We’ve provided evidence … [that leads to] questions about what the relationship was like between Donald Trump and Jeffrey Epstein.”
Garcia stressed the need for answers regarding the White House’s role in withholding information, questioning the sudden change in attitude toward releasing the files given Trump’s campaign promises.
“Why is the White House trying to cover this up? So if he’s not covering for himself … he’s covering up for his rich friends,” Garcia said. “Why the cover up? Who are you hiding for? I think that’s the question.”
He confirmed that Trump is definitively in the Epstein files, though the extent remains unknown, but will be uncovered soon.
“We know that Trump’s in them. Yeah, he’s been told. We know that Trump’s in them in some way. As far as the extent of it … we don’t know.”
Garcia emphasized accountability for all powerful figures implicated, regardless of financial status, political party, or personal connections.
“All these powerful men that are walking around right now … after abusing, in some cases, 14‑ and 15‑year‑old girls, they have to be held accountable,” he said. “There has to be justice for those survivors and the American public deserves the truth about who was involved in that.”
He added that while he is the ranking member, he will ensure the oversight committee will use all available political tools, including subpoenas — potentially even for the president.
“We want to subpoena anyone that we can … everyone’s kind of on the table.”
He also emphasized accountability for all powerful figures implicated, regardless of financial status, political party, or relationship with the president.
“For me, they’re about justice and doing the right thing,” Garcia said. “This is about women who … were girls and children when they were being abused, trafficked, in some cases, raped. And these women deserve justice.”
“The survivors are strong.”
Deputy White House Press Secretary Abigail Jackson issued a statement regarding the release the photos, echoing previous comments from Republicans on the timing and framing of the photos by the Oversight Committee.
“Once again, House Democrats are selectively releasing cherry-picked photos with random redactions to try and create a false narrative,” Jackson said.
“The Democrat hoax against President Trump has been repeatedly debunked and the Trump administration has done more for Epstein’s victims than Democrats ever have by repeatedly calling for transparency, releasing thousands of pages of documents, and calling for further investigations into Epstein’s Democrat friends,”
In a press release on Friday, Garcia called for immediate DOJ action:
“It is time to end this White House cover-up and bring justice to the survivors of Jeffrey Epstein and his powerful friends. These disturbing photos raise even more questions about Epstein and his relationships with some of the most powerful men in the world. We will not rest until the American people get the truth. The Department of Justice must release all the files, NOW.”
(Photo courtesy of the U.S. House Oversight Committee)
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