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Appeals court halts Michigan same-sex marriages

In a 2-1 decision, judges rule they must follow guidance on Utah gay nuptials

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Regnerus, gay juror, National LGBT Bar Association, Gay News, Washington Blade

The Sixth Circuit has stayed same-sex marriages in Michigan pending appeal (Image courtesy Wikimedia Commons).

The U.S. Sixth Circuit Court of Appeals announced late Tuesday it has placed a hold on same-sex marriages in Michigan pending appeal — dashing the hopes of those who wanted the weddings to continue as litigation moved forward.

In a 2-1 decision, the majority ruled it must place a stay on ruling from U.S. District Judge Bernard Friedman striking down Michigan’s ban on same-sex marriage in case of DeBoer v. Snyder to conform to an earlier stay decision by the U.S. Supreme Court.

“There is no apparent basis to distinguish this case or to balance the equities any differently than the Supreme Court did in Kitchen,” the majority writes. “Furthermore, several district courts that have struck down laws prohibiting same-sex marriage similar to the Michigan amendment at issue here have also granted requests for stays made by state defendants.”

The U.S. Supreme Court had issued a stay on same-sex marriages in Utah pending the outcome of litigation, Kitchen v. Herbert, after a district judge struck down the state’s marriage ban and the Utah Gov. Gary Herbert sought to halt the weddings by filing a stay request.

The two judges in the majority for the stay decision were U.S. District Judge Karen Caldwell, sitting by designation on the appeals court, and U.S. Circuit Judge John Rogers. U.S. Circuit Judge Helene White was sole dissent in the stay decision. Each of the judges were appointed and confirmed by former President George W. Bush during his administration.

In her dissent, White writes the stay in the Utah case isn’t controlling for the Michigan marriages and says the state didn’t make a sufficient argument that it would succeed in the case on appeal.

“Michigan has not made the requisite showing,” White writes. “Although the Supreme Court stayed the permanent injunction issued by the Utah District Court in Kitchen v. Herbert pending final disposition by the Tenth Circuit, it did so without a statement of reasons, and therefore the order provides little guidance. I would therefore apply the traditional four-factor test, which leads me to conclude that a stay is not warranted.”

Although Friedman didn’t include a stay as part of his ruling, the Sixth Circuit instituted a temporary stay on the weddings after an estimated 315 marriage licenses were distributed to same-sex couples in Ingham, Washtenaw, Muskegon and Oakland counties.

Legal experts who spoke with the Washington Blade over the weekend say they didn’t think the Sixth Circuit needed to place a stay on Michigan same-sex marriages because the Supreme Court’s stay on same-sex marriages in Utah wasn’t controlling and numerous courts have ruled in favor of marriage equality since the stay decision in that case.

In a filing before the Sixth Circuit on Tuesday, attorneys for the plaintiff same-sex couples in the case, April DeBoer and Jane Rowse, made similar arguments to make the case that the court should allow the same-sex weddings to continue pending the outcome of the litigation.

“Permitting loving same-sex couples to marry pending the outcome of this appeal will not harm the state in any way; permitting the children of loving same-sex couples to have two legally recognized parents will not harm the state in any way; permitting the children of loving same-sex couples to have two legally recognized parents will better protect these children and will keep the state from continuing to ‘impair the rights of’ these children,'” the attorneys write.

Attorneys for Oakland County Clerk Lisa Brown, who assisted as a defendant in litigation against Michigan’s same-sex marriage ban, argued in a separate filing the court should reject a stay because it would harm same-sex couples living in the state.

“Couples and their families who want the legal protection and recognition of marriage will experience real harm if a stay is granted by this Court,” the attorneys write. “Defendant Brown will be forced to discriminate against couples and their families if a stay is granted. The State risks losing residents who can no longer live in a State that treats them and their families like second class citizens. They can no longer stay in a State that leaves them and their children legally vulnerable.”

But Michigan Attorney General Bill Schuette, who’s been defending Michigan’s ban on same-sex marriage, argued before the Sixth Circuit that the court must followed precedent by the Supreme Court, noting other federal judges instituted stays when striking down bans on same-sex marriage.

“As to the merits of the stay itself, none of the plaintiffs’ arguments overcome a simple fact: the Supreme Court has already addressed precisely this situation — a federal district court striking down a state marriage amendment — and concluded that a stay pending appeal was necessary,” Schuette writes.

In the event that the Sixth Circuit denied the stay pending appeal, Schuette requested a two-day temporary stay from the court so it could seek a stay from Supreme Court without same-sex marriages taking place in Michigan.

Plaintiffs in the case charged the state never formally asked for a stay from the district court, saying that was appropriate venue to ask for a stay. But in its filing, the state asserts it orally requested a stay during arguments.

Now that the Sixth Circuit has issued a stay, plaintiffs could appeal the stay decision the Supreme Court, but observers say a different outcome is unlikely.

Dana Nessel, one the plaintiffs’ attorneys in the lawsuit, said plaintiffs “have no plans to appeal” the stay decision at this time.

One lingering question is whether the state and the federal government will recognized the same-sex marriages already performed in Michigan over the weekend. In Utah, the results were split: the state elected not to recognize its marriage, but U.S. Attorney General Eric Holder said the federal government would recognize the unions.

Neither Michigan nor the federal government has definitively weighed on in the issue. The Associated Press quoted a spokesperson for Michigan Gov. Rick Snyder as saying the state won’t yet recognize the marriages until a decision was made on the stay pending appeal, and the Justice Department told the Blade situation remains under review.

Via Twitter, Brown called on the Snyder to recognize the same-sex marriages performed in the state, suggesting if he refused to do so, voters should elect the Democratic gubernatorial candidate in the 2014 election.

“When will Gov Snyder act like a leader and recognize the hundreds of MI citizens who married on Sat?” Brown tweeted. “MI needs true leadership.”

CORRECTION: An initial version of this article incorrectly reported Judge White was a Clinton appointee. She was initially named by Clinton, but wasn’t confirmed by the Senate under his administration. George W. Bush renamed her and the Senate confirmed her under his watch. The Blade regrets the error.

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Politics

U.S. Senate vote clears path for passage of the Respect for Marriage Act

Anti-LGBTQ groups have launched conservative effort to block bill

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U.S. Capitol
Capitol Building dome. (Washington Blade photo by Michael Key)

Passage of the Respect for Marriage Act became all but certain with the U.S. Senate’s procedural 61-35 vote on Monday night to forego additional debate in the chamber over the landmark legislation.

From here, the bill will return to the U.S. House of Representatives, which will consider — and is expected to approve — an amendment that was added by a bipartisan group of Senators led by Tammy Baldwin (D-Wis.). Then, it will reach President Joe Biden’s desk.

The president has repeatedly urged lawmakers to pass the bill so he can sign it into law. His administration, along with Congressional Democratic leadership, has made the Respect for Marriage Act a top legislative priority in the weeks before the new Congress is seated in January.

Today’s move by the Senate came on the heels of a coordinated campaign by conservative and anti-LGBTQ advocacy groups that wield considerable influence on Capitol Hill and marshaled their efforts to peel off support from Republican senators in the days leading up to Monday’s vote.

Republican Sens. Todd Young (Ind.) and Cynthia Lummis (Wyo.), who were among the 12 Senate Republicans who supported advancing the legislation in a procedural vote taken before Thanksgiving, cast the final two votes on Monday allowing the measure to clear the 60-vote majority threshold to pass. Axios reports the two lawmakers faced particular pressure from conservative activists who sought to erode their support for the legislation.

The Respect for Marriage Act will repeal the Clinton-era Defense of Marriage Act, adding legal protections for same-sex couples, many of whom would otherwise face devastating consequences if the U.S. Supreme Court reverses or substantially weakens the constitutional right to marriage equality.

Notwithstanding criticism from some progressives who feel the bill is too conservative in scope, the Respect for Marriage Act — along with the bipartisan amendment that was introduced in the Senate to enshrine protections for religious liberty — is supported by major LGBTQ organizations including the Human Rights Campaign, GLAAD, Lambda Legal, the National Center for Transgender Equality, GLSEN and PFLAG National, among others.

The bill’s aim, narrowly tailored, was to gird against the possibility that the high court would revisit its precedential decisions in United States v. Windsor (2013) and Obergefell v. Hodges (2015).

Justice Clarence Thomas signaled his intention to do so with his concurring opinion earlier this year in Dobbs v. Jackson Women’s Health Organization — a case that revoked Americans’ constitutional right to abortion, overturning the Court’s historic rulings in Roe v. Wade (1973) and Planned Parenthood v. Casey (1992).

Over the summer, the House passed the Respect for Marriage Act with an overwhelming majority, including votes from 47 Republican members. Dozens of religious denominations and groups that represent a broad spectrum of beliefs have endorsed the legislation, including the Mormon church, which took pains to reaffirm its position that same-sex relationships are sinful. Scholars representing a similarly diverse range of opinions on germane legal questions have also publicly backed the bill.

Still, the opposition remained steadfast.

“Religious Americans will be subject to potentially ruinous litigation, while the tax-exempt status of certain charitable organizations, educational institutions, and non-profits will be threatened,” said Sen. Mike Lee (R-Utah) in a statement opposing the legislation as written and proposing an additional amendment to the bill.

Organizations like the Heritage Foundation, a conservative think tank, echoed Lee’s concerns about the Respect for Marriage Act vis-à-vis protections for religious liberty. Others, like the Liberty Counsel, designated by the Southern Poverty Law Center as an anti-LGBTQ hate group, peddled outrageous arguments including the lie that the Respect for Marriage Act would normalize or facilitate child sexual exploitation and abuse.

Even in the aftermath of the deadly shooting on Nov. 19 at a Colorado Springs, Colo., LGBTQ nightclub, these attacks from conservative groups continued apace and even increased as the Senate’s vote on Monday drew nearer.

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State Department

U.S. diplomat says negotiations to release Brittney Griner have stalled

WNBA star remains in Russian penal colony

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(Washington Blade photo by Michael Key)

In remarks published Monday, Elizabeth Rood, the U.S. chargée d’affaires in Moscow, told Russia’s state-owned RIA news agency that talks to free jailed Americans Brittney Griner and Paul Whelan were continuing through the “designated channel.”

During the long ranging interview covering a variety of subjects, Rood was asked if she intended to visit the imprisoned WNBA star who is serving time in a Mordovian prison.

“Of course, we are going to do this as soon as the Russian authorities give us permission to visit Brittney Griner in the new colony where she was recently transferred,” the American diplomat responded and in answer to a follow-up question regarding Griner’s status. “As far as we understood from talking to her, she is healthy and doing as well as can be expected in her difficult circumstances.”

RIA then focused on the negotiations asking for some of the details including the possibility of convicted arms dealer Viktor Bout being included in the “exchange list” in the potential prisoner swap deal between the Russian and American authorities.

“I can say that the United States continues to discuss with the Russian authorities through special channels the issue of the release of Brittney Griner and Paul Whelan.  As we have already said, the United States has submitted a serious proposal for consideration. We finalized this proposal and offered alternatives. Unfortunately, the Russian Federation has so far received no serious response to these proposals, ” the U.S. chargée d’affaires answered.

“However, I would like to emphasize that the main concern and the first priority of the U.S. Embassy is to ensure the well-being of the American citizens who are here. And the situation is not limited to the names of those who are mentioned in the media headlines — a number of American citizens are kept in Russian prisons. We are extremely concerned about the condition of each of them, and we continue to follow their affairs very closely and support them in every possible way,” she added.

RIA then asked: “What did you mean by ‘serious response’ from Russia? Moscow has repeatedly stressed that the negotiations are being conducted through professional channels … What does the American side mean by “serious response”?

Rood answered telling RIA; “I mean, we have made a serious proposal that reflects our intention to take action to free American prisoners. We did not see a serious response from the Russian side to our proposal.”

“By ‘serious answer’ do you mean consent?” RIA asked in a follow-up question.

“I mean an answer that would help us come to an agreement,” she answered.

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Africa

Kenyan LGBTQ rights groups honor transgender refugees, asylum seekers

Event coincided with the Transgender Day of Remembrance

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The Refugee Trans Initiative and the Entrepreneur Empowerment and Advocacy Health used the Transgender Day of Remembrance to honor transgender refugees and asylum seekers in Kenya. (Photo courtesy of Entrepreneur Empowerment and Advocacy Health)

Two LGBTQ rights groups in Kenya this month used the Transgender Awareness Week and the Transgender Day of Remembrance to honor transgender refugees and asylum seekers in the country. 

The Refugee Trans Initiative and Entrepreneur Empowerment and Advocacy Health on Nov. 20 hosted an event in Nairobi, the Kenyan capital. It did not take place in the Kakuma refugee camp; but former residents who now live in Nairobi, Kisumu and Mombasa attended. 

“The event was to celebrate Trans Awareness Week for trans refugees and asylum seekers and we invited other individuals who are part of the 2SLGBTQIA+ refugee community,” Entrepreneur Empowerment and Advocacy Health Director Vanilla Hussein. “We had time to reflect on the memory of our friends we have lost and most recently Francis, who was murdered in Uganda.”

Hussein said the conditions in Kakuma made it unsafe for the group to hold an event in the refugee camp.

Two gay men in March 2021 suffered second-degree burns during an attack on Block 13 in Kakuma, which the U.N. Refugee Agency created specifically for LGBTQ and intersex refugees. One of them died a few weeks later at a Nairobi hospital. 

A report the Organization for Refuge, Asylum and Migration and Rainbow Railroad released in May 2021 indicates nearly all of the LGBTQ and intersex people who live in Kakuma have experienced discrimination and violence because of their sexual orientation and/or gender identity. UNHCR in a statement after the March 15, 2021, attack noted Kenya “remains the only country in the region to provide asylum to those fleeing persecution based on sexual orientation, gender identity or expression,” even though consensual same-sex sexual relations remain criminalized.

“Trans refugees continue to live in appalling conditions due to poor welfare, lack of access to jobs, affordable healthcare and opportunities in Kenya,” said Hussein. “Currently, some trans refugees and gender non-conforming refugees lack proper documentation.”

Hussein further noted NGOs “are not funded by the donors adequately because of bureaucratic hurdles and requirements to access funding such as bank statements, which have made it hard to get access to funds that can provide food, shelter, and relief emergency assistance.”

“To sum up, Kenya remains a threat to the 2SLGBTQIA+ community due to transphobia and homophobia,” said Hussein.

Alvin Mwangi, a reproductive rights activist, stressed trans people simply want basic human rights.

“Basic human rights are not special rights, the right to get and keep a job based on merit is not a special right, the right to be served food in a restaurant is not a special right, the right to have a roof over one’s head is not a special right, the right to walk down a street and not be attacked because of who you are and whom you love is not a special right,” said Mwangi. 

“The government of Kenya should ensure its laws and systems protect transgender persons just like any other citizen of Kenya against all forms of violence and discrimination,” added Mwangi. “The government of Kenya should commit to end all forms of violence and discrimination against transgender persons, by publicly condemning any major instances of homophobic and transphobic violence that occur in the counties and in the country in general.”

Mwangi also stressed trans people are “beautiful” and “deserve love.”

“We all have the right to live with dignity and respect,” said Mwangi. “As we just marked and celebrated the Transgender Day of Remembrance, which memorializes victims of transphobic violence, and as we continue to celebrate Transgender Awareness month until the end of November, we remember those in the transgender community who have lost their lives due to violence brought by hate and ignorance and we honor, celebrate, and advocate for the respect of the rights of transgender and gender diverse communities.”

“All transgender persons have a right to equality and freedom from discrimination of all forms. All transgender persons require equal protection against any form of violence,” added Mwangi. “The right to equality includes the full and equal enjoyment of all human rights and fundamental freedoms.”

Daniel Itai is the Washington Blade’s Africa Correspondent.

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