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Judges appear split during historic arguments over Utah marriage

Two of three judges seem inclined to strike down gay ban

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Byron White Courthouse, gay news, Washington Blade, utah marriage
Byron White Courthouse, gay news, Washington Blade, utah marriage

Judges heard arguments on Utah’s same-sex marriage ban in the Byron White Courthouse. (Washington Blade photo by Chris Johnson)

DENVER — A three-judge panel of the U.S. Tenth Circuit Court of Appeals appeared divided Thursday during oral arguments over Utah’s prohibition on same-sex marriage, although two of the judges expressed skepticism over the constitutionality of the ban.

For the first time since the U.S. Supreme Court’s historic decisions on marriage last year, a federal appeals court heard arguments on same-sex marriage. In this case, Kitchen v. Herbert, the question at hand was the constitutionality of Amendment 3, the same-sex marriage ban approved by Utah voters in 2004.

Over the course of more than an hour, judges asked questions about the appropriate level of scrutiny for review, whether a ruling against the ban would lead to polygamy and the impact of the ban on children raised by same-sex couples. At no time did they signal when they’d render a decision, even though the court agreed to consider the lawsuit on an expedited basis.

The room in the Byron White Courthouse where the arguments took place was packed with observers. Seated near the judges were the plaintiff same-sex couples, who sat with arms around their partners during the proceedings.

Judge Carlos Lucero, a Clinton appointee, appeared most inclined to rule against Utah’s ban on same-sex marriage. Noting the string of recent court decisions against similar bans, the judge expressed concern about children being raised by same-sex couples and wondered why a straight couple would be more likely to get married if gay couples were banned from marriage.

Lucero placed considerable emphasis on U.S. Associate Justice Anthony Kennedy’s decision against the Defense of Marriage Act, saying the “expositive language” of the ruling “disavowed a decision predicated on federalism” allowing states to ban same-sex marriage.

Talking about the stigma faced by children raised by same-sex couples that can’t marry in Utah, Lucero asked, “Wasn’t that precisely the concern that Justice Kennedy expressed in Windsor and to some degree what motivated his decision in the case?”

The judge went so far as to say the situation in which a same-sex couple can marry in Iowa, but not have that union recognized in Utah, is “identical of the situation” created by the Dred Scott case in the 19th century, which held an individual could continue to own slaves even if they moved to a free state.

Judge Jerome Holmes, appointed by President George W. Bush, also seemed critical of the marriage ban. Holmes, who’s black, asked why bans on same-sex marriage shouldn’t be struck down because they affect a certain category of individuals — much like the 1969 Loving v. Virginia decision striking down interracial marriage bans.

“In Loving, it was about race; in this, it’s about gender,” Holmes said, suggesting he was prepared to strike down the same-sex marriage ban under a ruling guided by heightened scrutiny.

Still, Holmes wasn’t completely sold on the idea that the marriage ban should be struck down, saying he doesn’t see how the court could overturn the marriage ban through a rational basis review standard.

Notably, Holmes was one of two judges that denied Utah’s request for a stay on same-sex marriages in Utah after a district court ruled the state’s marriage ban unconstitutional, but before the U.S. Supreme Court stepped in to institute a stay.

Paul Kelly, an appointee of President George H.W. Bush, seemed most inclined to uphold Utah’s ban on same-sex marriage. Several times, he invoked the prerogative of Utah voters to define marriage through the democratic system without being overruled through the judicial process.

At one point, he questioned why the court shouldn’t also require polygamous marriages in Utah if it were to require same-sex marriages, saying, “It seems like it all goes together.”

Representing Utah in court was Gene Schaerr, an attorney who left his job as partner at the prominent law firm of Winston & Strawn to defend Utah’s ban on same-sex marriage.

Schaerr maintained Utah voters have a right to define marriage as one man, one woman through “democratic means,” just as New York decided to legalize same-sex marriage through a similar process.

Among the arguments Schaerr made was that the diversity under opposite-sex marriages is good for children because it exposes them to “gender diversity” in the same way the state has decided to expose them to racial diversity by requiring integration in the public school system.

Invoking the words of prominent same-sex marriage opponent Maggie Gallagher, Schaerr said a boy raised by a father obtains a “deep personal experience of masculinity,” and when that’s absent, studies have shown they don’t fare as well in society.

Under questioning over whether children of same-sex parents would be better off if their parents could marry, Schaerr said the same argument could be made for children being raised in polygamous families. At which point, Lucero retorted there’s plenty of time to talk about polygamy, but the issue at hand is same-sex marriage.

On the evening prior to arguments, Schaerr submitted a request to the court asking judges to ignore citations in an earlier brief to the criticized study of Mark Regnerus, which found that same-sex parents aren’t as fit as opposite-sex parents. That study has been debunked by LGBT advocates and ridiculed in an earlier decision by a federal judge in the Michigan marriage case.

Peggy Tomsic, a lawyer at the Salt Lake City-based firm of Magelby & Greenwood, argued on behalf of the plaintiff same-sex couples seeking to wed or to have their marriages recognized in Utah.

“These laws are not the type of laws that our Constitution will permit because, as the court has said before, the court does not allow the creation of class between its citizens,” Tomsic said in her closing arguments.

The appropriate standard of judicial review was discussed extensively during arguments. Schaerr maintained the right level is the rational basis standard, which would give Utah the greatest chance of success in the case.

Tomsic pressed for a review under heightened scrutiny because the Supreme Court applied a higher degree of rational basis in its decision against DOMA. Still, she maintained the marriage ban would fail under a lower form of rational basis, saying while it is a more “deferential standard, it is not a toothless standard.”

In a give-and-take between Kelly and Tomsic over whether animus was behind Utah’s same-sex marriage ban, Tomsic insisted animus was a factor because Utah’s law does nothing to impact the institution of marriage other than keeping out “same-sex couples who have children or want to procreate.”

Even though the issue before the court is Utah’s law, the decision would have precedent on marriage laws throughout the entire Tenth Circuit, which consists of Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming. Of these states, only New Mexico has marriage equality.

The arguments took place exactly one week before scheduled arguments on Oklahoma’s marriage ban on April 17 before the same three-judge panel in the case of Bishop v. Smith. It’s possible the judges will issue a combined decision for both cases.

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3 Comments

3 Comments

  1. El Dorado

    April 10, 2014 at 8:29 pm

    The Polygamous marriage argument is a specious one. Like in the case of Loving, same-sex couples are not asking for the right to marry multiple partners just one!

    Further, if states have the right to define marriage, then why was the Loving case ruling constitutional? Virginia defined marriage to be between same race couples not different races yet the Supreme Court Struck the law down!

    Tying the right to marriage to procreation is also specious. Being able to procreate isn’t a requirement under the law to be married if your partner is opposite sex. The infertile and elderly couples can marry but can’t have children. There is no fertility test required for a marriage license either.

  2. Marco Luxe

    April 11, 2014 at 6:25 am

    Schaerr's "gender diversity" argument is offensive and Orwellian. Integration is to address historical inequality, while Schaerr uses the language of diversity to promote inequality. It's beyond chutzpah, it's despicable.

  3. Richard Harney

    April 11, 2014 at 6:42 pm

    As a lawyer for the defense, you should know that you aren't allowed to just say "studies have shown". YOU have to provide the studies you speak of if you are going to make that claim. Also, I don't understand the logic that Judge Paul Kelly uses when talking about polygamous marriages. For one thing, that is a slippery slope argument that a judge, especially a circuit judge, should not be making. The judge should not be making the case for the defense. It is up to the defense to bring that up and prove somehow that is what will happen. One could see that since we've had gay marriage in this country and in Canada for 10 years that polygamy is not an issue worth raising. Also polygamy is not the issue and even if it could be used to make polygamy legal, that still should not be an issue raised because it is a completely separate issue altogether.

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Top 10 Blade news stories by web traffic

COVID breakthroughs, Equality Act, and anti-trans attacks

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Elliot Page created excitement by posting his first photo in swim trunks back in May.

Each year our staff gathers in late December to review the highest trafficked stories of the year and there’s more than a little bit of competitive spirit as we review the results. Here are the top 10 stories by web traffic at  HYPERLINK “http://washingtonblade.com”washingtonblade.com for 2021.

#10: Mark Glaze, gun reform advocate, dies at 51

The sad, tragic story of Glaze’s death captivated readers in November. 

#9: COVID breakthrough infections strike summer tourists visiting Provincetown

This one went viral in July after a COVID outbreak was blamed on gay tourists.

#8: Thank you, Kordell Stewart, for thoughtful response to ‘the rumor’

This opinion piece thanked the former NFL quarterback for writing a personal essay addressing gay rumors. 

#7: Elliot Page tweets; trans bb’s first swim trunks #transjoy #transisbeautiful

The actor created excitement by posting his first photo in swim trunks back in May.

#6: Romney declares opposition to LGBTQ Equality Act

Mitt Romney disappointed activists with his announcement; the Equality Act passed the House but never saw a vote in the Senate.

#5: White House warns state legislatures that passing anti-trans bills is illegal

The year 2021 saw a disturbing trend of GOP-led legislatures attacking trans people.

#4: Lincoln Project’s avowed ignorance of Weaver texts undercut by leaked communications

The Lincoln Project’s leaders, amid a scandal of co-founder John Weaver soliciting sexual favors from young men, have asserted they were unaware of his indiscretions until the Blade obtained electronic communications that called that claim into question.

#3: FOX 5’s McCoy suspended over offensive Tweet

Blake McCoy tweeted that obese people shouldn’t get priority for the COVID vaccine. 

#2: Transgender USAF veteran trapped in Taliban takeover of Kabul

Among the Americans trapped in the suburban areas of Kabul under Taliban control was a transgender government contractor for the U.S. State Department and former U.S. Air Force Sergeant. She was later safely evacuated.

#1: Amid coup chaos, Trump quietly erases LGBTQ protections in adoption, health services

And our most popular story of 2021 was about the Trump administration nixing regulations barring federal grantees in the Department of Health & Human Services from discriminating against LGBTQ people, including in adoption services.

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CDC still falling short on LGBTQ data collection for COVID patients: expert

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COVID-19 vaccine, gay news, Washington Blade
The CDC is still not issuing guidance to states on LGBTQ data collection among COVID patients.

Despite requests since the start of the COVID pandemic for the U.S. government to enhance data collection for patients who are LGBTQ, the Centers for Disease Control & Prevention is still falling short on issuing nationwide guidance to states on the issue, a leading expert health on the issue told the Blade.

With a renewed focus on COVID infections reaching new heights just before the start of the holidays amid the emergence of Omicron, the absence of any LGBTQ data collection — now across both the Trump and Biden administrations — remains a sore point for health experts who say that information could be used for public outreach.

Sean Cahill, director of Health Policy Research at the Boston-based Fenway Institute, said Wednesday major federal entities and hospitals have been collecting data on whether patients identify as LGBTQ for years — such as the National Health & Nutrition Examination Survey, which has been collecting sexual orientation data since the 1990s — but the CDC hasn’t duplicated that effort for COVID even though the pandemic has been underway for two years.

“It’s not like this is a new idea,” Cahill said. “But for some reason, the pandemic hit, and all of a sudden, we realize how little systematic data we were collecting in our health system. And it’s a real problem because we’re two years into the pandemic almost, and we still don’t know how it’s affecting this vulnerable population that experiences health disparities in other areas.”

The Blade was among the first outlets to report on the lack of efforts by the states to collect data on whether a COVID patient identifies as LGBTQ, reporting in April 2020 on the absence of data even in places with influential LGBTQ communities. The CDC hasn’t responded to the Blade’s requests for nearly two years on why it doesn’t instruct states to collect this data, nor did it respond this week to a request for comment on this article.

Cahill, who has published articles in the American Journal of Public Health on the importance of LGBTQ data collection and reporting in COVID-19 testing, care, and vaccination — said he’s been making the case to the CDC to issue guidance to states on whether COVID patients identify as LGBTQ since June 2020.

Among those efforts, he said, were to include two comments he delivered to the Biden COVID-19 Health Equity Task Force in spring 2021, a letter a coalition of groups sent to the Association of State & Territorial Health Officers asking for states to collect and report SOGI in COVID in December 2020 as well as letters to HHS leadership and congressional leadership in spring and summer 2020 asking for them to take steps to encourage or require SOGI data collection in COVID.

Asked what CDC officials had to say in response when he brought this issue to their attention, Cahill said, “They listen, but they don’t really tell me anything.”

“We’ve been making that case, and to date, as of December 22, 2021, they have not issued guidance, they have not changed the case report form. I hope that they’re in the process of doing that, and maybe we’ll be pleasantly surprised in January, and they’ll come up with something…I really hope that’s true, but right now they’re not doing anything to promote SOGI data collection and reporting in surveillance data.”

Cahill, in an email to the Blade after the initial publication of this article, clarified CDC has indicated guidance on LGBTQ data collection for COVID patients may come in the near future.

“HHS leaders told us this fall that CDC is working on an initiative to expand SOGI data collection,” Cahill said. “We are hopeful that we will see guidance early in 2022. Key people at CDC, including Director Walensky, understand the importance of SOGI data collection given their long history of working on HIV prevention.”

In other issues related to LGBTQ data collection, there has been a history of states resisting federal mandates. The Trump administration, for example, rescinded guidance calling on states to collect information on whether foster youth identified as LGBTQ after complaints from states on the Obama-era process, much to the consternation of LGBTQ advocates who said the data was helpful.

The White House COVID-19 Health Equity Task Force has at least recognized the potential for enhancing LGBTQ data collection efforts. Last month, it published an implementation plan, calling for “an equity-centered approach to data collection, including sufficient funding to collect data for groups that are often left out of data collection (e.g….LGBTQIA+ people).”

The plan also calls for “fund[ing] activities to improve data collection…including tracking COVID-19 related outcomes for people of color and other underserved populations,” and specifically calls for the collection of LGBTQ data.

The importance of collecting LGBTQ data, Cahill said, is based on its potential use in public outreach, including efforts to recognize disparities in health population and to create messaging for outreach, including for populations that may be reluctant to take the vaccine.

“If we see a disparity, we can say: Why is that?” Cahill said. “We could do focus groups of the population — try to understand and then what kind of messages would reassure you and make you feel comfortable getting a vaccine, and we could push those messages out through public education campaigns led by state local health departments led by the federal government.”

The LGBTQ data, Cahill said, could be broken down further to determine if racial and ethnic disparities exist within the LGBTQ population, or whether LGBTQ people are likely to suffer from the disease in certain regions, such as the South.

“We have data showing that lesbian or bisexual women, and transgender people are less likely to be in preventive regular routine care for their health,” Cahill said. “And so if that’s true, there’s a good chance that they’re less likely to know where to get a vaccine, to have a medical professional they trust to talk to about it today.”

Among the leaders who are supportive, Cahill said, is Rachel Levine, assistant secretary for health and the first openly transgender person confirmed by the U.S. Senate for a presidential appointment. Cahill said he raised the issue with her along with other officials at the Department of Health & Human Services three times in the last year.

In her previous role as Pennsylvania secretary of health, Levine led the way and made her state the first in the nation to set up an LGBTQ data collection system for COVID patients.

“So she definitely gets it, and I know she’s supportive of it, but we really need the CDC to act,” Cahill said.

Although the federal government has remained intransigent in taking action, Cahill said the situation has improved among states and counted five states — California, Pennsylvania, Rhode Island, Nevada and Oregon — in addition to D.C. as among those that have elected to collect data on sexual orientation and gender identity of COVID patients.

However, Cahill said even those data collection efforts are falling short because those jurisdictions have merely been public about collecting the data, but haven’t reported back anything yet.

“Only California has reported data publicly, and the data that they’re reporting is really just the completeness of the data,” Cahill said. “They’re not reporting the data itself…And they’re also just asking people who tests positive. So, if somebody says positive COVID in California, a contact tracer follows up with that individual and asks them a battery of questions, and among the questions that are asked are SOGI questions.”

As a result of these efforts, Cahill said, California has data on the LGBTQ status of COVID patients, but the data is overwhelmingly more complete for the gender identity of these patients rather than their sexual orientation. As of May 2021, California reported that they had sexual orientation data for 9.5 percent of individuals who had died from COVID and 16 percent of people who tested positive, but for gender identity, the data were 99.5 percent.

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Equality Act, contorted as a danger by anti-LGBTQ forces, is all but dead

No political willpower to force vote or reach a compromise

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Despite having President Biden in the White House and Democratic majorities in both chambers of Congress, efforts to update federal civil rights laws to strengthen the prohibition on discrimination against LGBTQ people by passing the Equality Act are all but dead as opponents of the measure have contorted it beyond recognition.

Political willpower is lacking to find a compromise that would be acceptable to enough Republican senators to end a filibuster on the bill — a tall order in any event — nor is there the willpower to force a vote on the Equality Act as opponents stoke fears about transgender kids in sports and not even unanimity in the Democratic caucus in favor of the bill is present, stakeholders who spoke to the Blade on condition of anonymity said.

In fact, there are no imminent plans to hold a vote on the legislation even though Pride month is days away, which would be an opportune time for Congress to demonstrate solidarity with the LGBTQ community by holding a vote on the legislation.

If the Equality Act were to come up for a Senate vote in the next month, it would not have the support to pass. Continued assurances that bipartisan talks are continuing on the legislation have yielded no evidence of additional support, let alone the 10 Republicans needed to end a filibuster.

“I haven’t really heard an update either way, which is usually not good,” one Democratic insider said. “My understanding is that our side was entrenched in a no-compromise mindset and with [Sen. Joe] Manchin saying he didn’t like the bill, it doomed it this Congress. And the bullying of hundreds of trans athletes derailed our message and our arguments of why it was broadly needed.”

The only thing keeping the final nail from being hammered into the Equality Act’s coffin is the unwillingness of its supporters to admit defeat. Other stakeholders who spoke to the Blade continued to assert bipartisan talks are ongoing, strongly pushing back on any conclusion the legislation is dead.

Alphonso David, president of the Human Rights Campaign, said the Equality Act is “alive and well,” citing widespread public support he said includes “the majority of Democrats, Republicans and independents and a growing number of communities across the country engaging and mobilizing every day in support of the legislation.”

“They understand the urgent need to pass this bill and stand up for LGBTQ people across our country,” David added. “As we engage with elected officials, we have confidence that Congress will listen to the voices of their constituents and continue fighting for the Equality Act through the lengthy legislative process.  We will also continue our unprecedented campaign to grow the already-high public support for a popular bill that will save lives and make our country fairer and more equal for all. We will not stop until the Equality Act is passed.”

Sen. Jeff Merkley (D-Ore.), chief sponsor of the Equality Act in the Senate, also signaled through a spokesperson work continues on the legislation, refusing to give up on expectations the legislation would soon become law.

“Sen. Merkley and his staff are in active discussions with colleagues on both sides of the aisle to try to get this done,” McLennan said. “We definitely see it as a key priority that we expect to become law.”

A spokesperson Senate Majority Leader Charles Schumer (D-N.Y.), who had promised to force a vote on the Equality Act in the Senate on the day the U.S. House approved it earlier this year, pointed to a March 25 “Dear Colleague” letter in which he identified the Equality Act as one of several bills he’d bring up for a vote.

Despite any assurances, the hold up on the bill is apparent. Although the U.S. House approved the legislation earlier this year, the Senate Judiciary Committee hasn’t even reported out the bill yet to the floor in the aftermath of the first-ever Senate hearing on the bill in March. A Senate Judiciary Committee Democratic aide, however, disputed that inaction as evidence the Equality Act is dead in its tracks: “Bipartisan efforts on a path forward are ongoing.”

Democrats are quick to blame Republicans for inaction on the Equality Act, but with Manchin withholding his support for the legislation they can’t even count on the entirety of their caucus to vote “yes” if it came to the floor. Progressives continue to advocate an end to the filibuster to advance legislation Biden has promised as part of his agenda, but even if they were to overcome headwinds and dismantle the institution needing 60 votes to advance legislation, the Equality Act would likely not have majority support to win approval in the Senate with a 50-50 party split.

The office of Manchin, who has previously said he couldn’t support the Equality Act over concerns about public schools having to implement the transgender protections applying to sports and bathrooms, hasn’t responded to multiple requests this year from the Blade on the legislation and didn’t respond to a request to comment for this article.

Meanwhile, Sen. Susan Collins (R-Maine), who declined to co-sponsor the Equality Act this year after having signed onto the legislation in the previous Congress, insisted through a spokesperson talks are still happening across the aisle despite the appearances the legislation is dead.

“There continues to be bipartisan support for passing a law that protects the civil rights of Americans, regardless of their sexual orientation or gender identity,” said Annie Clark, a Collins spokesperson. “The Equality Act was a starting point for negotiations, and in its current form, it cannot pass. That’s why there are ongoing discussions among senators and stakeholders about a path forward.”

Let’s face it: Anti-LGBTQ forces have railroaded the debate by making the Equality Act about an end to women’s sports by allowing transgender athletes and danger to women in sex-segregated places like bathrooms and prisons. That doesn’t even get into resolving the issue on drawing the line between civil rights for LGBTQ people and religious freedom, which continues to be litigated in the courts as the U.S. Supreme Court is expected any day now to issue a ruling in Fulton v. City of Philadelphia to determine if foster care agencies can reject same-sex couples over religious objections.

For transgender Americans, who continue to report discrimination and violence at high rates, the absence of the Equality Act may be most keenly felt.

Mara Keisling, outgoing executive director of the National Center for Transgender Equality, disputed any notion the Equality Act is dead and insisted the legislation is “very much alive.”

“We remain optimistic despite misinformation from the opposition,” Keisling said. “NCTE and our movement partners are still working fruitfully on the Equality Act with senators. In fact, we are gaining momentum with all the field organizing we’re doing, like phone banking constituents to call their senators. Legislating takes time. Nothing ever gets through Congress quickly. We expect to see a vote during this Congress, and we are hopeful we can win.”

But one Democratic source said calls to members of Congress against the Equality Act, apparently coordinated by groups like the Heritage Foundation, have has outnumbered calls in favor of it by a substantial margin, with a particular emphasis on Manchin.

No stories are present in the media about same-sex couples being kicked out of a restaurant for holding hands or transgender people for using the restroom consistent with their gender identity, which would be perfectly legal in 25 states thanks to the patchwork of civil rights laws throughout the United States and inadequate protections under federal law.

Tyler Deaton, senior adviser for the American Unity Fund, which has bolstered the Republican-led Fairness for All Act as an alternative to the Equality Act, said he continues to believe the votes are present for a compromise form of the bill.

“I know for a fact there is a supermajority level of support in the Senate for a version of the Equality Act that is fully protective of both LGBTQ civil rights and religious freedom,” Deaton said. “There is interest on both sides of the aisle in getting something done this Congress.”

Deaton, however, didn’t respond to a follow-up inquiry on what evidence exists of agreeing on this compromise.

Biden has already missed the goal he campaigned on in the 2020 election to sign the Equality Act into law within his first 100 days in office. Although Biden renewed his call to pass the legislation in his speech to Congress last month, as things stand now that appears to be a goal he won’t realize for the remainder of this Congress.

Nor has the Biden administration made the Equality Act an issue for top officials within the administration as it pushes for an infrastructure package as a top priority. One Democratic insider said Louisa Terrell, legislative affairs director for the White House, delegated work on the Equality Act to a deputy as opposed to handling it herself.

To be sure, Biden has demonstrated support for the LGBTQ community through executive action at an unprecedented rate, signing an executive order on day one ordering federal agencies to implement the U.S. Supreme Court’s decision last year in Bostock v. Clayton County to the fullest extent possible and dismantling former President Trump’s transgender military ban. Biden also made historic LGBTQ appointments with the confirmation of Transportation Secretary Pete Buttigieg and Rachel Levine as assistant secretary of health.

A White House spokesperson insisted Biden’s team across the board remains committed to the Equality Act, pointing to his remarks to Congress.

“President Biden has urged Congress to get the Equality Act to his desk so he can sign it into law and provide long overdue civil rights protections to LGBTQ+ Americans, and he remains committed to seeing this legislation passed as quickly as possible,” the spokesperson said. “The White House and its entire legislative team remains in ongoing and close coordination with organizations, leaders, members of Congress, including the Equality Caucus, and staff to ensure we are working across the aisle to push the Equality Act forward.”

But at least in the near-term, that progress will fall short of fulfilling the promise of updating federal civil rights law with the Equality Act, which will mean LGBTQ people won’t be able to rely on those protections when faced with discrimination based on sexual orientation or gender identity.

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