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Before summer’s end, a succession of marriage cases

Sixth Circuit to hear arguments in Mich., Ohio, Tenn., Ken. on Aug. 6

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April DeBoer, Jayne Rowse, Michigan, gay news, Washington Blade, marriage equality, same-sex marriage, gay marriage
April DeBoer, Jayne Rowse, Michigan, gay news, Washington Blade, marriage equality, same-sex marriage, gay marriage

April DeBoer (left) and Jayne Rowse filed the lawsuit against Michigan’s ban on same-sex marriage. (Washington Blade file photo by Chris Johnson)

After three rulings in support of marriage equality at the federal appeals level, litigation seeking marriage rights for gay couples will only intensify: No fewer than three appellate courts are set to hear oral arguments on the issue before summer’s end.

The most imminent hearing is scheduled for Aug. 6, when the U.S. Sixth Circuit Court of Appeals in Cincinatti will consider six lawsuits against marriage bans in four states: Michigan, Ohio, Kentucky and Tennessee.

It’s the first time that a federal appeals court will consider at the same time challenges to marriage bans in each of the states within the circuit.

James Esseks, director of the LGBT project for the American Civil Liberties Union, is co-counsel to the Ohio cases and said preparations consist of anticipating questions judges may ask in court.

“It’s not too exciting,” Esseks said. “We talk through the issues and try to figure out what we think the judges might ask.”

Shortly afterward, the U.S. Seventh Circuit Court of Appeals in Chicago will hear arguments on Aug. 26 for litigation in two states — Wisconsin and Indiana — and the U.S. Ninth Circuit Court of Appeals in San Francisco will hear arguments on Sept. 8 for another two — Nevada and Idaho.

The U.S. Fifth Circuit Court of Appeals hasn’t yet set a time to hear arguments for the challenge to Texas’ ban on same-sex marriage, but that date should be scheduled soon in the aftermath of a legal brief that Texas Solicitor General Jonathan Mitchell filed in defense of the state law.

The actions from these courts will follow rulings in favor of marriage equality for Utah and Oklahoma from the U.S. Tenth Circuit Court of Appeals and, just this week, for Virginia from the U.S. Fourth Circuit Court of Appeals. They’re among the 70 pending cases related to marriage equality that have led to an unbroken string of 29 wins following the U.S. Supreme Court’s decision against the Defense of Marriage Act.

But the oral arguments before the Sixth Circuit may set the tone for later arguments in other cases because the ruling will affect laws in four states and will likely reflect rulings from other appeals courts striking down bans in Oklahoma, Utah and Virginia.

The three-judge panel that’ll consider the litigation consists of U.S. Circuit Judge Martha Craig Daughtry, a Clinton appointee; U.S. Circuit Judge Jeffrey Sutton, a George W. Bush appointee; and U.S. Circuit Judge Deborah Cook, another George W. Bush appointee.

Arguments are set to begin at the Potter Stewart U.S. Courthouse at 1 p.m. The court set 30 minutes for each side in the Michigan and Ohio cases, but 15 minutes for each side in the Tennessee and Kentucky cases.

Doug NeJaime, who’s gay and a law professor at University of California, Irvine, said the court may focus on aspects of the raising of children by same-sex couples given the attention to that issue as a reason for lower courts to strike down marriage bans.

“The Sixth Circuit is of course aware of the growing consensus around this issue,” NeJaime said. “Importantly, one of the cases from the Sixth Circuit, DeBoer, had a full trial in which the empirical claims about same-sex couples and child-rearing were deeply engaged and considered. This might focus the court on those questions specifically and put the court on good footing to address them at length.”

Another issue that may come up during the arguments is whether the marriage bans passed in Michigan, Kentucky, Ohio and Tennessee were motivated by anti-gay animus.

In his concurring opinion against Oklahoma’s ban on same-sex marriage, U.S. Circuit Judge Jerome Holmes ruled the law was unconstitutional, but insisted that animus wasn’t a factor in voters’ decision to enact the marriage ban in the first place. He goes out of his way to make this argument seemingly in an attempt to influence subsequent rulings on same-sex marriage.

As The New York Times’ Adam Liptak points out, Holmes’ view, if accepted by other courts, could put up a roadblock for additional rulings in favor of same-sex marriage.

“Judge Holmes’s conclusion that animus did not figure in state bans on same-sex marriage would, if accepted by the Supreme Court, block one path to victory for gay rights groups,” Liptak writes. “There are other paths, of course, as the winning streak in the lower courts makes clear.”

There have been differing views of the definition of animus among justices, although a law enacted for this reason would be hard-pressed to survive scrutiny from the courts.

The differing views on animus are evident by the U.S. Supreme Court’s decision against the Defense of Marriage Act, Liptak notes. In his opinion, U.S. Associate Justice Anthony Kennedy sees animus in a law that has the effect of “impos[ing] a disadvantage, a separate status, and so a stigma.”

On the other hand, Chief Justice John Roberts in his dissent suggested that animus has a more strict requirement of a “sinister motive,” and Associate Justice Antonin Scalia goes further by speaking of “unhinged members of a wild-eyed lynch mob.”

ACLU’s Esseks said animus is a “term of art” that has different meanings among legal practitioners, but the issue shouldn’t preclude a court from overturning a marriage ban.

“It’s both true that animus isn’t required in order to win one of these cases, even in front of Justice Kennedy, and that animus doesn’t mean evil intent, so it’s not as hard to prove as you might think,” Esseks said.

Each of the six cases pending before the Sixth Circuit is related to same-sex marriage, but is different in certain ways. The Michigan case, DeBoer v. Snyder, was filed by private attorneys on behalf of a lesbian couple seeking adoption rights, but later developed into a lawsuit seeking the right to same-sex marriage in the state.

The only other case with an outright marriage equality component is the Kentucky litigation. It’s two consolidated cases: Bourke v. Beshear, which seeks state recognition of out-of-state same-sex marriages, and Love v. Beshear, which seeks the right to marry for the same-sex couples in Kentucky.

The Tennessee case, Tanco v. Haslam, was filed by the National Center for Lesbian Rights and is an appeal of a preliminary injunction requiring the state to recognize the out-of-state marriages of the three plaintiff same-sex couples in the lawsuit.

There are two Ohio cases: Obergefell v. Himes and Henry v. Himes. Both were filed by the same private attorneys and were decided by the same district judge, but the former case seeks recognition of out-of-state same-sex marriages for the purposes of death certificates, and the latter seeks recognition of these unions for the purpose of birth certificates for children born to same-sex couples.

Another Ohio ruling could take place before next week in Gibson v. Himes, another case that seeks outright marriage equality in the state, but it’s unlikely that litigation will be briefed before the appeals court in time for the arguments with other cases.

Esseks said the way in which the Sixth Circuit will decide the litigation — whether by one ruling or multiple rulings — is yet to be seen, but in any event a ruling for marriage equality in just one state would establish precedent for others within the circuit.

Regardless of the way the Sixth Circuit decides the case, the ruling that will follow — along with others from other appellate courts — will likely join others at the Supreme Court as the justices begin their term in the fall. Utah Attorney General Sean Reyes has already vowed to appeal the Tenth Circuit’s decision against his state’s marriage ban to the high court.

Although the Supreme Court is under no obligation to take up any of the cases, observers expect the justices will take up at least one of the marriage lawsuits — if not a combination — and deliver a ruling by summer 2015.

Esseks said additional rulings in favor of marriage equality from the Sixth Circuit and other courts will only add to the strength of the cases when they reach the Supreme Court.

“Building the consensus helps us, I think, very significantly with the U.S. Supreme Court to be able to point to the current reality, that there’s an unbroken line of state and federal court decisions since Windsor on what the Constitution means in terms of the freedom to marry,” Esseks said. “That is enormously helpful, enormously powerful to be put in front of the Supreme Court.”

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D.C. mayor to lift all restrictions on bars, nightclubs on June 11

‘We will definitely be celebrating Pride’ next month

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Mayor Muriel Bowser announced Monday that she will fully lift capacity and other restrictions on most businesses, including restaurants and places of worship, on May 21. (Washington Blade file photo by Michael Key)

D.C. Mayor Muriel Bowser announced at a news conference on Monday that a continuing trend of significantly lower numbers of coronavirus cases and deaths in the city has enabled her to fully lift capacity and other restrictions on most businesses, including restaurants and places of worship, on May 21.

The mayor said bars and nightclubs will be allowed to increase indoor capacity from the current 25 percent to 50 percent on May 21, with all capacity restrictions for bars and nightclubs to be removed on June 11.

The mayor’s announcement came after representatives of the city’s nightlife businesses, including the city’s gay bars and restaurants, expressed concern that D.C. had yet to lift its capacity restrictions beyond 25 percent while surrounding jurisdictions in Maryland and Virginia had already lifted most restrictions.

“On May 21, restrictions on public and commercial activity, including capacity limits, types of activities, and time restrictions, will be lifted,” the mayor’s directive says.

It says restrictions for bars and nightclubs would continue at a 50 percent capacity from May 21 through June 11. The directive says restrictions for large sports and entertainment venues would also continue from May 21 to June 11, which includes a requirement such events apply for a waiver of the restrictions on a case-by-case basis.

“On June 11, capacity limits and restrictions will be lifted on those venues that cannot fully reopen on May 21,” the directive says.

In response to a question at the news conference, Bowser said the June 11 date would essentially end all restrictions on nightclubs and bars, including the current requirement that they close at midnight rather than the pre-epidemic closing times of 2 a.m. on weekdays and 3 a.m. on weekends.

In a development that could have a major impact on plans for D.C.’s LGBTQ Pride events, the mayor’s revised health directive announced on Monday includes the lifting of all capacity restrictions on large outdoor and indoor sports and entertainment events beginning on June 11.

That change would remove restrictions that have, up until now, prevented D.C.’s Capital Pride Alliance from holding its annual Pride Parade and Festival in June during Pride Month.

Capital Pride Executive Director Ryan Bos told the Washington Blade shortly after the mayor’s announcement that Capital Pride is assessing its options for expanding its current plans for in-person events in June.

“We will definitely be celebrating Pride in June,” Bos said. “We just received this information as well. So, we will be getting further information,” he said. “We have not been informed that they will be issuing any permits yet, so at this time we are moving forward with our original plans for doing things.”

Bos was referring to a city requirement for obtaining permits for street closings and use of other public spaces for events such as a parade or street festival. He said existing plans, among other things, call for an informal parade of cars and other vehicles on June 12 that will drive throughout the city to view homes and businesses that will be decorated with Pride displays such as signs, photos, and other symbols of Pride.

Those familiar with the city’s past Pride events don’t think there will be enough time for Capital Pride to organize the traditional large parade and street festival in time for June. But Capital Pride officials have talked about holding a possible parade and festival in October, and the lifting of the capacity restrictions announced by Bowser on Monday would likely make that possible.

In addition to lifting all capacity restrictions on May 21 for restaurants, the mayor’s May 21 timeframe for lifting restrictions includes these additional venues and events:

  • Weddings and special events
  • Business meetings and seated conventions
  • Places of worship
  • Non-essential retail
  • Personal services
  • Private at-home gatherings
  • Libraries, museums, galleries
  • Recreation Centers
  • Gyms and fitness centers
  • Pools
  • Office space
  • Schools
  • Childcare

“We’re very pleased that over the last several days, we have seen our case spread, our community spread numbers, venture out of the red into the yellow and fast approaching the green,” Bowser said in referring to a health department chart that shows the changes in coronavirus cases in the city.

“You might remember that our daily case rate peaked in January at 45.9. And today you can see it’s down to 6.6,” she said at her news conference on Monday.

“Throughout this process I have said how proud I am of D.C. residents and businesses who have responded, who have followed health guidance and have worked together to help protect our community throughout the pandemic. And we see it in these numbers today,” she said.

“Containing the virus will continue to require all of us to be focused on maintaining a robust health system,” the mayor said, adding that while over 200,000 D.C. residents have been fully vaccinated since December 2020, “many more thousands” still need to be vaccinated. “Vaccines are free and available on demand at walk-up sites across the District,” she said.

The mayor also noted that the city will continue to require residents and visitors to use a mask in accordance with existing and updated guidance set by the U.S. Centers for Disease Control and Prevention.

Mark Lee, coordinator of the D.C. Nightlife Council, an association that represents restaurants, bars, nightclubs and other entertainment venues, said the mayor’s directive on May 10 leaves some details to be addressed but will open the way to bring nightlife businesses back to life.

“What we do know is that on Friday, May 21, businesses begin returning to normal operations and, three weeks later, on June 11, all restrictions for all businesses in the District will end,” Lee said. “It’s a day we’ve long awaited and one that will save much of our community enterprise from financial ruin.”

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Family code bill to be introduced in Cuban Parliament in July

CENESEX made announcement during May 4 press conference

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Mariela Castro at a CENESEX press conference

 

Tremenda Nota is the Washington Blade’s media partner in Cuba. A Spanish version of this story was published on May 6.

HAVANA — The National Center for Sexual Education on May 4 during a press conference in which it unveiled the program for the 14th annual International Day Against Homophobia, Transphobia and Biphobia events in Cuba announced a bill to amend the family code will be introduced in Parliament in July.

CENESEX Director Mariela Castro Espín said during a meeting with official and foreign media outlets at the International Press Center that this year’s events are part of the process of amending the family code.

She added that this legal change will reflect several rights guaranteed in the constitution, which is why it is necessary to sensitize and educate the Cuban population to avoid prejudice and discrimination.

“I was able to appreciate that the majority of the population … is in favor of recognizing the rights of LGBTI+ people and especially the rights in the family sphere that include the possibility, the option, of marriage,” said Mariela Castro during the press conference.

The official referred to the results of the National Survey on Gender Equality in Cuba, conducted in 2016 and published in 2019. According to this official study, 77 percent of the Cuban population between 15 and 74-years-old said that gays, lesbians, bisexuals and transgender people should have the same rights as any other citizen.

CENESEX’s director, however, did not use this information in the 2018 parliamentary debates sparked by Article 68 of the bill to amend the constitution. The idea that it was not the appropriate time to implement same-gender marriage in Cuba eventually won out.

Mariela Castro told Tremenda Nota a few days before the referendum in which Cuban voters approved the current constitution that she was aware of the survey, but she did not explain why she did not use the data it revealed as an argument (in favor of marriage equality.)

“It was a wasted tool that now we can only use in the next referendum,” then-MP Luis Ángel Adán Roble told Tremenda Nota during a February 2019 interview, as did Mariela Castro.

The moment that Adán Roble mentioned has arrived.

It became known during the May 4 press conference that the family code will be introduced in the scheduled parliamentary session in July. The Council of State on March 22 appointed a commission that will be in charge of preparing the bill, but the list of its members was not made public until April 30. None of them are openly LGBTI+.

Activists over the last few weeks have demanded that Parliament reveal the identities of those who make up the commission and the deadline they have to prevent the Family Code. The May 4 press conference resolved the last outstanding point.

The Cuban IDAHOBiT program

Mariela Castro and CENESEX Deputy Director Manuel Vázquez Seijido explained that numerous activities with the goal of making visible and fighting against all types of discrimination based on sexual orientation and gender identity will virtually take place from May 4 through May 30.

The IDAHOBiT events in Cuba have a program that includes academic dialogue, social activism and artistic presentations from virtual spaces.

Forum debates are among the activities. The Juventud Rebelde newspaper will host the first one with the theme “Deconstructing myths around same-sex families and partners” and Cubadebate will hold the second called “Constitution and Sexual Rights in Cuba: Progress and Main challenges.”

They also announced at the press conference the books “Paquito el de Cuba: A Decade of Online Activism” and “Non-Heteronormative Sexualities and Gender Identities. Tensions and Challenges for Human Rights” will be presented.

There will be virtual panels titled “Diverse Families: Histories of Non-Hegemonic Lives,” “National Program for the Advancement of Women: Opportunities to Confront Homophobia and Transphobia,” “Keys for Inclusive Communication” and “Sexual Rights and Religious Fundamentalisms.”

Castro Espín explained that CENESEX will use its social media accounts to promote the program, contribute to the sexual education of Cubans and the recognition of rights for all people, regardless of gender or sexual orientation.

A show against homophobia and transphobia that will officially end the events will be broadcast on social media and on television.

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Bill to ban conversion therapy dies in Puerto Rico Senate committee

Advocacy group describes lawmakers as cowards

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Puerto Rico Pulse nightclub victims, gay news, Washington Blade

 

A Puerto Rico Senate committee on Thursday killed a bill that would have banned so-called conversion therapy on the island.

Members of the Senate Community Initiatives, Mental Health and Addiction Committee voted against Senate Bill 184 by an 8-7 vote margin. Three senators abstained.

Amárilis Pagán Jiménez, a spokesperson for Comité Amplio para la Búsqueda de la Equidad, a coalition of Puerto Rican human rights groups, in a statement sharply criticized the senators who opposed the measure.

“If they publicly recognize that conversion therapies are abuse, if they even voted for a similar bill in the past, if the hearings clearly established that the bill was well-written and was supported by more than 78 professional and civil entities and that it did not interfere with freedom of religion or with the right of fathers and mothers to raise their children, voting against it is therefore one of two things: You are either a hopeless coward or you have the same homophobic and abusive mentality of the hate groups that oppose the bill,” said Pagán in a statement.

Thursday’s vote comes against the backdrop of continued anti-LGBTQ discrimination and violence in Puerto Rico.

Six of the 44 transgender and gender non-conforming people who were reported murdered in the U.S. in 2020 were from Puerto Rico.

A state of emergency over gender-based violence that Gov. Pedro Pierluisi declared earlier this year is LGBTQ-inclusive. Then-Gov. Ricardo Rosselló in 2019 signed an executive order that banned conversion therapy for minors in Puerto Rico.

“These therapies lack scientific basis,” he said. “They cause pain and unnecessary suffering.”

Rosselló issued the order less than two weeks after members of the New Progressive Party, a pro-statehood party  he chaired at the time, blocked a vote in the Puerto Rico House of Representatives on a bill that would have banned conversion therapy for minors in the U.S. commonwealth. Seven out of the 11 New Progressive Party members who are on the Senate Community Initiatives, Mental Health and Addiction Committee voted against SB 184.

“It’s appalling. It’s shameful that the senators didn’t have the strength and the courage that our LGBTQ youth have, and it’s to be brave and to defend our dignity and our humanity as people who live on this island,” said Pedro Julio Serrano, founder of Puerto Rico Para [email protected], a Puerto Rican LGBTQ rights group, in a video. “It’s disgraceful that the senators decided to vote down this measure that would prevent child abuse.”

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