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Once again, marriage equality inches closer to Supreme Court

At least four appeals courts set to consider issue this spring

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David Boies, Ted Olson, gay marriage, same-sex marriage, marriage equality, gay news, Washington Blade
David Boies, Ted Olson, gay marriage, same-sex marriage, marriage equality, gay news, Washington Blade

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 Courtā€™s attention must be upon Justice Kennedyā€™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 Kentuckyā€™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 ā€” New York, Vermont and Connecticut ā€” 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.

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National

Detroit teen arrested in fatal stabbing of gay man

Prosecutor says defendant targeted victim from online dating app

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Officials say Ahmed Al-Alikhan allegedly fatally stabbed Howard Brisendine. (Photo of Al-Alikhan courtesy of the Detroit Police Department; photo of Brisendine via GoFundMe)

A 17-year-old Detroit man has been charged with first-degree murder for the Sept. 24 stabbing death of a 64-year-old gay man that prosecutors say he met through an online dating app.

A statement released by the Wayne County, Mich., Prosecutorā€™s Office says Ahmed Al-Alikhan allegedly fatally stabbed Howard Brisendine inside Brisendineā€™s home in Detroit before he allegedly took the victimā€™s car keys and stole the car.

The statement says police arrived on the scene about 4:04 p.m. on Sept. 29 after receiving a call about a deceased person found in their home. Upon arrival police found Brisentine deceased in his living room suffering from multiple stab wounds, the statement says.

ā€œIt is alleged that the defendant targeted the victim on an online dating app because he was a member of the LGBTQ community,ā€ according to the prosecutorā€™s statement.

ā€œIt is further alleged that on Sept. 24, 2024, at the victimā€™s residence in the 6000 block of Minock Street in Detroit, the defendant stabbed the victim multiple times, fatally injuring him, before taking the victimā€™s car keys and fleeing the scene in his vehicle,ā€ it says.

It further states that Al-Alikhan was first taken into custody by police in Dearborn, Mich., and later turned over to the Detroit police on Oct. 1. The statement doesn’t say how police learned that Al-Alikhan was the suspected perpetrator. 

In addition to first-degree murder, Al-Alikhan has been charged with felony murder and unlawful driving away in an automobile.

ā€œIt is hard to fathom a more planned series of events in this case,ā€ prosecutor Kym Worthy said in the statement. ā€œUnfortunately, the set of alleged facts are far too common in the LGBTQ community,ā€ Worthy said. ā€œWe will bring justice to Mr. Brisendine. The defendant is 17 years and 11 months old ā€“ mere weeks away from being an adult offender under the law.ā€

She added, ā€œAs a result of that and the heinous nature of this crime, we will seek to try him as an adult.ā€

A spokesperson for the prosecutorā€™s office said the office has not designated the incident as a hate crime, but said regardless of that designation, a conviction of first-degree murder could result in a sentence of life in prison. The spokesperson, Maria Lewis, said the prosecutorā€™s office was not initially disclosing the name of the dating app through which the two men met, but said that would be disclosed in court as the case proceeds.

The NBC affiliate station in Detroit, WDIV TV, reported that Brisendine was found deceased by Luis Mandujano, who lives near where Brisendine lived and who owns the Detroit gay bar Gigā€™s, where Brisendine worked as a doorman. The NBC station report says Mandujano said he went to Brisendineā€™s house on Sept. 29 after Brisendine did not show up for work and his car was not at his house.

Mandujano, who is organizing a GoFundMe fundraising effort for Brisendine, states in his message on the GoFundMe site that Brisendine worked as a beloved doorman at Gigiā€™s bar.

ā€œWe will do what we can to honor Howardā€™s life as we put him to rest,ā€ Mandujano states in his GoFundMe message. ā€œHe left the material world in a volatile manner at the hand of a monster that took his life for being gay. Letā€™s not allow hate to win!ā€

In response to a Facebook message from the Washington Blade, a spokesperson for Gigiā€™s said the money raised from the GoFundMe effort will be used for Brisendineā€™s funeral expenses and his ā€œremaining bills.ā€ The spokesperson, who didnā€™t disclose their name, added, ā€œAny leftover money will be donated to local LGBTQ nonprofit groups to combat hate.ā€

The GoFundMe site can be accessed here.

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World

Out in the World: LGBTQ news from Asia and Europe

11 same-sex couples applied to register marriages in South Korea

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(Los Angeles Blade graphic)

SOUTH KOREA

Eleven same-sex couples have applied to register their marriages in what the group are saying is the first step in a legal challenge for same-sex marriage rights in South Korea.Ā 

The couples had their marriage applications rejected by the local district offices, so they filed objections with the local courts. The couples allege that the current law, which bans same-sex marriage, violates their constitutional rights to equality, and the pursuit of happiness.

Among the couples pursuing the cases is Kim Yong-min and So Sung-wook, who earlier this year won a case at the Supreme Court seeking to require the government to provide health benefits to same-sex partners. The National Health Insurance Service has, however, continued to deny claims by same-sex couples in defiance of the ruling, saying that there are no clear legal standards of what constitutes a same-sex couple.

South Korea does not have any legal framework for recognizing same-sex couples, and the country lacks national-level discrimination protections for LGBTQ people. Legislators have also tended to be hostile to queer rights, with the Seoul Queer Culture Festival facing repeated bans from the city government.

The courts have also taken an inconsistent view on LGBTQ rights. In 2022, the Supreme Court severely curtailed a law that banned soldiers from having same-sex intercourse, a ruling that was overturned the following year by the Constitutional Court, a co-equal top court of South Koreaā€™s judicial system. 

CYPRUS

The Cypriot parliament began debate this week on a bill that would stiffen existing penalties for hate crimes, following a string of violent attacks on LGBTQ people on the island over the past year.

The bill would raise the maximum penalty for anti-LGBTQ hate crimes from three years to five years in prison and double the maximum fine to ā‚¬10,000 ($10,924.35.)

The bill comes after more than 10 anti-gay attacks have been reported to police on the Mediterranean island of 1 million people this year alone. 

Last month, a gay man claimed he was assaulted by a security guard outside a Limassol nightclub. 

Last year, police issued arrest warrants for five students at Limassolā€™s Technical University of Cyprus, alleging they threw smoke bombs into an on-campus event hosted by Accept-LGBTI, the countryā€™s leading queer advocacy group, then vandalized the room and assaulted a student attendee.

Separately, the government approved the drafting of the countryā€™s first National Strategy for LGBTQ people.

The strategy will be drafted by the countryā€™s human rights commissioner with representatives from the ministries of justice, education, interior, and health, as well as representatives from Accept-LGBTI and academia.

The goal of the strategy is to align Cyprusā€™s legislation with European Union directives, addressing discrimination, ensuring equality and security, and promoting an inclusive society for the LGBTQ community.

Currently, Cyprus lacks comprehensive anti-discrimination protections for LGBTQ people and does not have a straightforward process for transgender people to update their legal gender, both of which are increasingly norms expected of EU members. The state also does not allow same-sex marriage or adoption, although neighboring Greece legalized both earlier this year.

NETHERLANDS

The Dutch governmentā€™s statistics bureau released a report on National Coming Out Day that estimates that LGBTQ people make up approximately 18 percent of the countryā€™s population, or approximately 2.7 million people.

The estimate is drawn from a study the bureau conducted last year on safety and criminality, which also asked its 182,000 participants about their gender identity and sexual orientation.

The study found that bisexual people make up by far the largest cohort of the countryā€™s LGBTQ community, with 1.7 million people, or just over 11 percent of the population, with about 20 percent more bisexual women than men. Conversely, gay men make up about 1.8 percent of the population, while lesbians account for 0.7 percent of the population

Asexuals make up just under 2 percent of the population, while just over 1 percent identified as some other non-heterosexual orientation or said they didnā€™t yet know their sexual orientation.

About 1 percent of the population is estimated to be trans or nonbinary, just under 200,000 people. The study estimated the intersex population at about 45,000, or 0.3 percent of the population.

The study found that LGBTQ people tended to be younger and more likely to live in urban areas than the general population. It also found that the proportion of LGBTQ people born outside the Netherlands was slightly higher at 17 percent, compared to the general population, at 14 percent.

GERMANY

The German government has announced it plans to update adoption law to recognize co-maternity for lesbian couples and allow unmarried couples to adopt.

The government says the new law will recognize modern realities of adoption and procreation.

Married same-sex couples have had the right to jointly adopt since same-sex marriage became legal in Germany in 2017. However, current law still presents challenges for some couples. 

For example, when a lesbian couple conceives a child through assisted reproduction, the non-birthing parent is not automatically recognized as a parent, and must go through a legal process to adopt their own child.

The proposed law will address that issue, but it will not address male couples who conceive a child using a surrogate, as German law currently only recognizes single paternity.

The Federal Constitutional Court delivered a ruling earlier this year that opened the door to legal recognition of multi-parent families, although it gave legislators until June 2025 to figure out how that would work. The draft law, however, states that children will continue to have only two legal parents.

ā€œThe hassle of stepchild adoptions for two-mother families must be brought to an end. After all, children from rainbow families have a right to two parents from birth, and regardless of their gender,ā€ says Patrick Dƶrr, a board member of the Queer Diversity Association, Germanyā€™s largest LGBTQ advocacy group, in a statement to German newspaper DW.

The proposal would also allow more flexibility in adoptions, by allowing unmarried couples to jointly adopt. Under current law, if a couple is unmarried, only one person will be legally recognized as the adopted childā€™s parent.

The draft bill is now out for consultations with Germanyā€™s state governments.

HONG KONG

Hong Kongā€™s Court of Final Appeal heard a case seeking to establish that same-sex couples can inherit property from each other last week, the latest same-sex couplesā€™ rights case to reach the cityā€™s top court. 

Last month, the Court of Final Appeal heard a case challenging the city governmentā€™s unequal treatment of same-sex couples seeking access to social housing. Both cases come after a 2023 ruling that found the government must give legal recognition to same-sex couples by a 2025 deadline.

The inheritance case was filed in 2019 by Edgar Ng, after he learned that his husband Henry Li could not inherit his government-subsidized apartment without a will. Ng passed away in December 2020, and Li has continued the case.

The governmentā€™s attorney told the court that the city does not recognize Ng and Liā€™s overseas marriage, and that they differ from a heterosexual married couple because heterosexual couples have a legal responsibility to financially support each other. The governmentā€™s position is that the court should not address inheritance rights until the government creates a framework for registering same-sex couples, as that could give rise to inconsistencies in the law.

Liā€™s attorneys, meanwhile, contested the suggestion that the inheritance issue could be settled with a written will, arguing that most people in Hong Kong die without a written will, and that written wills can be contested, unlike a legal marriage.

The court reserved its judgment for a later date.

Hong Kong, a former British colony, was returned to China in 1997, with the understanding that it would continue to operate as an autonomous unit for 50 years.

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Nigeria

Gay couple beaten, paraded in public in Nigeria

Incident took place in Port Harcourt this week

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(Bigstock photo)

A gay couple was beaten and paraded in public this week because of their sexual orientation.

In a video clip shared by Portharcourt Specials on X, the couple who appeared half naked were being insulted and slapped on the back, with one showing trails of blood on his back. The incident took place in Rumuewhara in Port Harcourt.

Although consensual same-sex sexual relations are criminalized in Nigeria and punishable by death on some states, many Nigerians viewed the attack against the couple as distasteful, arguing rapist or pedophiles don’t face the same treatment.

“This is where you will see Nigerians very active on; on matters that donā€™t concern them because why is someoneā€™s sexual orientation your problem? We are well deserving of politicians that punish us well,” said Rinu Oduala, a human rights activist.

No Hate Network Nigeria, an LGBTQ rights organization, said the couple’s public victimization was a stark reminder of the rampant homophobia in the country.

“The brutal attack on the gay couple is appalling and unacceptable,” said the organization. “It’s a stark reminder of the rampant homophobia and intolerance in Nigeria.” 

“Such violence is often fueled by discriminatory laws, societal norms, and lack of education, this incident highlights the urgent need for increased advocacy, education, and protection for LGBTQI+ individuals,” added No Hate Network Nigeria.

No Hate Network Nigeria also highlighted the plight of LGBTQ people in the country who are constantly under attack due to current laws and cultural and religious norms.

“The LGBTQI+ community in Nigeria faces extreme risks, including violence, harassment, and persecution, the Same-Sex Marriage (Prohibition) Act of 2014 exacerbates these challenges, effectively criminalizing LGBTQI+ individuals,” said No Hate Network Nigeria. “Many live in fear, hiding their identities to avoid persecution, the community requires enhanced support, safe spaces, and robust advocacy to ensure their basic human rights.”

For many LGBTQ people in the country, remaining in the closet is the only way they can preserve their life. They often flee Nigeria if they decide to come out.

There is currently no appetite from any lawmakers to amend or repeal parts of Section 21 of theĀ Criminal Code Act (Penal Code) that are used to arrest, charge, and prosecute those who identify as LGBTQ.

In northern states where Sharia law is practiced, one who is found to identify as LGBTQ or is an advocate may face death by stoning.

Although not widely practiced, death by stoning is the preferred punishment in many of the northern states if a Sharia court finds someone guilty of engaging in consensual same-sex sexual relations. A number of local and international human rights organizations in recent years have condemned this punishment. It is, however, still enforced in some of these states.

No Hate Network Nigeria said amending parts of the Criminal Code Act and repealing the Same Sex (Prohibition) Act might give relief to LGBTQ people in the country.

“Repealing or amending discriminatory laws, like the Same-Sex Marriage (Prohibition) Act, implementing education and awareness campaigns to combat homophobia, establishing safe spaces, and support networks for LGBTQI+ individuals and strengthening law officialsā€™ response to hate crimes as well as holding perpetrators accountable, will aid in averting and combating attacks on LGBTQI+ individuals,” said No Hate Network Nigeria.

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