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Marriage bans take a beating in Sixth Circuit arguments

Three-judge panel seems poised to rule 2-1 against laws barring gay nuptials in four states

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Potter Stewart U.S. Courthouse, gay news, Washington Blade, Cincinnati, Ohio
Potter Stewart U.S. Courthouse, gay news, Washington Blade, Cincinnati, Ohio

Judges heard arguments for marriage lawsuits in four states at the Potter Stewart U.S. Courthouse. (Washington Blade photo by Chris Johnson)

CINCINNATI — State bans on same-sex marriage took a beating Wednesday from a three-judge panel during oral arguments before the U.S. Sixth Circuit Court of Appeals.

The three-hour arguments were historic because they marked the first time a court heard over the course of one day challenges to marriage bans in four states. The Sixth Circuit heard six lawsuits challenging laws in each of the states within its jurisdiction: Michigan, Ohio, Tennessee and Kentucky.

Based on their line of questioning, two judges — U.S. Circuit Judge Martha Craig Daughtrey and U.S. Circuit Judge Jeffrey Sutton — seemed prepared to rule against bans on same-sex marriage. The remaining judge, U.S. Circuit Judge Deborah Cook, was relatively quiet, but appeared poised to rule in favor of the laws. Similar to other federal appeals courts, the panel seems headed to make a 2-1 decision in favor of marriage equality.

Although Sutton didn’t make an effort to telegraph how he’d rule, throughout his questioning he suggested he believes  prohibition on gay nuptials are unconstitutional. Ruminating on the changing societal perception of marriage, Sutton said a ban a same-sex marriage “seems too hard to justify even on rational basis grounds” if the institution is intended to express love and commitment.

That said, Sutton also had tough questions for attorneys seeking to overturn bans on same-sex marriage, posing the inquiry of why the LGBT rights movement would want to proceed through the judicial process — as opposed to legislative and ballot process — if the desired result was changing hearts and minds to achieve greater acceptance.

But Daughtrey was the most skeptical of the three judges, invoking the 1967 U.S. Supreme Court decision on Loving v. Virginia, which ended state bans on interracial marriage, as precedent for a legal basis that the right to marry whom someone chooses is fundamental. Noting that 19 states already have legalized same-sex marriage, Daughtrey observed that “it doesn’t look like the sky is falling in.”

When state attorneys made the arguments that bans on same-sex marriage had a rational basis because the purpose of marriage was procreation, Daughtrey took them to task, repeatedly asking them why excluding same-sex couples from the institution was necessary when opposite-sex couples can procreate with or without marriage.

“There’s nothing about this that has stopped heterosexual couples from getting married [or] getting pregnant accidentally,” Daughtrey said.

Leigh Gross Latherow, the attorney for Kentucky, maintained the state’s position was that marriage enabled procreation, while the attorney for Tennessee, Joseph Frederick Whalen, III, simply refused to answer Daughtry’s questions.

Additionally, in response to arguments from lawyers that the democratic process should decide the marriage issue as opposed to the courts, Daughtrey said women’s rights movement took 78 years to achieve the right to vote before it was assured under the 19th Amendment to the U.S. Constitution.

As she maintained her point was sometimes the democratic process takes an extraordinary amount of time, Daughtrey joked about the figure she cited and said, “I just thought you’d like to know that in case you were ever on ‘Jeopardy,'” eliciting laughter from attendees in the courtroom.

Cook only spoke a handful times over the course of nearly four hours of marriage arguments, but when she did, she indicated bans on same-sex marriage could withstand scrutiny by the courts.

At one point, she suggested certain benefits and consistency for a state that only recognized opposite-sex marriages. When an attorney made the claim that bans on same-sex marriage created a two-class system, Cook posited that was only the result of the laws, not the intent.

The six lawsuits before the Sixth Circuit are DeBoer v. Snyder in Michigan; Tanco v. Haslam in Tennessee; Love v. Beshear and Bourke v. Beshear in Kentucky; and Henry v. Himes and Obergefell v. Himes in Ohio.

Each of the attorneys arguing against bans on same-sex marriage also had differing takes based on the differing nature of their lawsuits. For example, while attorneys for couples in Michigan and Kentucky were arguing were to right for same-sex couples to marry in those state, lawyers for couples in Tennessee and Ohio took narrower approach because they were seeking recognition of out-of-state unions.

Carole Margaret Stanyar, an attorney representing same-sex couples in the Michigan lawsuit, made the case that the state’s marriage ban had the effect of treating individuals in a same-sex relationship like strangers to each other.

“We are not seeking to redefine the marital relationship,” Stanyar said. “We are merely [asking] for the end of the exclusion of same-sex couples from the right to marry.”

After Sutton asked whether the 1972 marriage case known as Baker v. Nelson, which the Supreme Court declined to hear, should serve as precedent, Stanyar said she doesn’t believe so because the understanding of marriage has “evolved” since that time.

Following the Supreme Court ruling against the Defense of Marriage Act, Stanyar noted that “every single court in the country” has ruled for marriage equality despite Baker. Additionally, Stanyar observed the Supreme Court agreed to take up the challenge to California’s Proposition 8 after Baker, even though justices side-stepped the marriage issue by ruling on the basis of standing.

Alphonse Gerhardstein, an attorney representing same-sex couples in Ohio, on the other hand, said while he agrees with arguments presented in the Michigan case, the Buckeye State must recognize the out-of-state marriages of same-sex couples.

“I represent four couples; their kids deserve two parents,” Gerhardstein said. “They deserve them today.”

Additionally, Gerhardstein said language in the Ohio marriage law prohibiting not only same-sex marriage, but marriage-like unions, demonstrates a “real prejudice.”

“It’s saying get away from us as far as you can,” Gerhardstein said. “These are the kinds of things the Supreme Court looks at.”

Gerhardstein also said the ban on same-sex marriages harms the state, as well as children, because it makes it so same-sex parents who are negligent can’t be prosecuted under current law. The marriage ban, Gerhardstein said, creates the “practical problem of children not getting recognition of their parents.”

The discussion of whether animus was a motivating factor in passage of the marriage bans was most piqued when Laura Landenwich, an attorney for same-sex couples, made that a component of her argument that Kentucky’s law “places a badge of inferiority on people and families.”

“Animus in a constitutional sense does not mean bigotry and prejudice, it can mean thoughtless or insensitivity,” Landenwich said.

Landenwich urged the court to rule against Kentucky’s ban on same-sex marriage because its duty is to “protect the minority from the will of the majority.”

“The fundamental right to marry has not changed,” Landenwich said. “What has changed is a fundamental understanding of what it means to be gay and lesbian.”

William Harbison, attorney for Sherrard & Roe who’s litigating for same-sex couples in Tennessee, made the case that the law causes “extreme intrusion” into the lives of plaintiff same-sex couples seeking recognition of their unions.

“For the life of me, I cannot see the logical connection of the effect of the laws, which is excluding same-sex couples from marriage, and anything related to procreation,” Harbison said.

A common theme among lawyers defending marriage bans was that they served a governmental interest to enable procreation and ensure children have opposite-sex parents.

Michigan Solicitor General Aaron Lindstrom said the ban makes it “more likely a child will have both a mother and father” in a marriage established by the democratic process.

Asked by Daughtrey whether the state has a rational basis to exclude other couples from marriage, such as opposite-sex couples who can’t procreate, Lindstrom replied that scenario would be an infringement upon the fundamental right to marry.

In addition to making this argument on behalf of Kentucky, Latherow took aim at U.S. District Judge John Heyburn II for striking down the state’s marriage law in a decision that determined “homosexuals are a suspect class.”

“It was not necessary for him to make that ruling, but he made it nonetheless,” Latherow said.

Now that the Sixth Circuit has heard arguments, the next step is for judges to produce a ruling — or multiple rulings — to settle the lawsuits that are at hand.

James Esseks, director of the LGBT project at the American Civil Liberties Union, told the Washington Blade a decision could come in another month or two.

“I think at this point in time the courts of appeals appear in some kind of friendly competition in terms of deciding the issues, and having their say and weighing in because they all know it’s going to be fodder for what the Supreme Court is going to do,” Esseks said. “So, I think those judges are going to go back to their chambers and sit down and decide what they’re going to do, but then I think they’re going to sit down and start writing.”

But the sense that the U.S. Constitution guarantees the right of same-sex couples to marry was most clearly expressed by Stanyar at end of her argument.

“It can and must be interpreted to recognize a changing society,” Stanyar said. “There is no reason to treat people this way.”

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35 Comments

35 Comments

  1. Val Charles

    August 6, 2014 at 11:14 pm

    Want to be free to do what others do.

  2. Manny Carvajal

    August 6, 2014 at 11:33 pm

    Gays and Lesbians can be together, but it can't be called marriage because marriage is between a man and a women period. They are equal already just call there unions something else because it's not marriage. I know call it civil unions that sounds good and let them get all the perks married couples get the benefits and so fourth, but marriage is already taken by straight couples so let them come up with there own term for gay and lesbian couples, problem solved.

  3. Valerie Jones

    August 6, 2014 at 11:42 pm

    Your logic is flawed. Your belief that marriage is appropriate for opposite-sex couples only is not proof that it IS that way. The way the laws are written are being deemed unconstitutional. Just because one finds same-sex marriage "icky" doesn't mean it shouldn't exist.

  4. Eric Chamberlain

    August 6, 2014 at 11:50 pm

    They aren't equal. Some of the parties to the case are already married, the state is refusing to recognize that marriage, because of the genders of the couple.

  5. Manny Carvajal

    August 7, 2014 at 12:16 am

    Valerie Jones The constitution doesn't afford gays or lesbians the right to marriage as a matter of fact the U.S constitution doesn't even mention marriage. Gays and lesbians are using equality as an excuse to gain a right which has only been afforded a man and a women since humanity has been keeping record of itself, marriage. To allow gays to use the word marriage for there unions goes against what the principal of marriage is in its true essence the forming of a special bond between a man and a women which has the possibility of procreation of the human species. Let me ask you this if the world was full of gays and lesbians how the fuck would the human race continue to exist, it couldn't because gays and lesbians can't procreate the human species, so nature itself does not allow a method for gays and lesbians to procreate, so if nature does not recognize your union as valid I sure as hell wont either and neither should anyone else. Like I said you want to be together fine go ahead but its not marriage, call it what it is a civil union or make up a term, but marriage is taken by straight couples since the beginning of human history, sorry gays and lesbians tough cookies.

    • Mico

      August 6, 2014 at 9:41 pm

      Traditional marriage from old times, isn’t one made out of ‘love’ but the reasons from a time, we no longer live in. Women have a say in life, women can own property, not be owned by their husbands and father before the marriage, as it was over one hundred years ago in the western world. Our founding American fathers, among those who owned slaves and the founding fathers’ wives, didn’t have a say in voting either. No one, wants to step into the shoes of a husband & wife. Besides, when a man and a woman, both ‘mature’, passed the age of wanting to have or able to have children, want to get married to one another, the logic, that marriage is for procreation, prevents two heterosexuals from marrying, if the two, cannot procreate. They can copulate, but cannot procreate. Why, would anyone want to deny, two single consenting adults the right to marry each other? Because, never has this been the way of the majority of humankind? Really? Because a man is to marry a woman and the two are to form a family, with the man as the head and the woman listening to her husband? Doesn’t this sound like NO MARRIAGE of today? (I’m sure, there are exceptions, but again, not the majority) Traditional marriage, if it ever existed, passed out of existence at least in the very early 1900s, if not before. Many missed it as it died and no one really noticed. Sadly, many think it’s still alive and they are keeping it kicking, when it’s a corpse that rotted its’ way into history. Let it go and live your life instead of in the bedroom of strangers, who might live happier than you.

  6. Ron Robertson

    August 7, 2014 at 12:34 am

    Manny Carvajal It's an individual right to choose your partner in marriage. When women got the vote, did that change the definition of voting? No. And neither do gays getting married change the definition of marriage.

  7. Mark Holbert

    August 7, 2014 at 12:37 am

    I have a hot news flash for you Manny Carvajal-we are human beings and gay human beings deserve the same benefits, end of story. Marriage should be allowed to all persons, not just straight people. Gays have been around since the beginning of time. Come on, you actually believe that woman was made from a man's rib???give me a break. The bible is a man made story book. When people get married they don't have to go to a freaking church. It is a legal institution and should be available equally. I am married to my husband and let me tell you wee are MARRIED…No civil unions for me as I am NOT a second class human being.

  8. Manny Carvajal

    August 7, 2014 at 12:58 am

    Mark Holbert Calling the Bible a a story book, ok! when you die and go to Heaven to meet god and Jesus to be judged you can explain that one to them on your own. Interesting how everyone dodged my question about nature not recognizing the union of gays by not making a method for gays or lesbians to procreate, if the world was full of gays and lesbians how the fuck would the human species go on existing please answer me that? Nature did not make a method for gays and lesbians to procreate for a reason, maybe because it's just plain wrong, the DNA of a man mixing with another man makes nothing and the DNA of a women mixing with another women makes nothing, but the DNA of man and women makes the most special thing known to us a human baby the procreation of our species. Marriage is special because it refers to this man and women special bond that is inherit in nature, the two coming together to make another human baby and progress our species further. Gays and lesbians should respect that marriage is for a man and a women, instead of starting there equality tantrum blah, blah, blah and second class citizen BS blah, blah, blah. The homosexual community has to give that argument a rest already, they say it all the time to get there way like little spoiled children.

  9. Mark Holbert

    August 7, 2014 at 1:13 am

    Manny Carvajal-the answer to your lame question regarding procreation is simple…there wil always be straight people having kids they don't want putting them up for adoption. And, there is always the surrogate route. Gay marriage will not take the place of straight marriage, it is an addition to it.

  10. Hans Klaus

    August 7, 2014 at 1:38 am

    Says who? Just because someone sleeps with the opposite sex, doesn't mean he/she gets special rights under the law. We pay the same taxes, we deserve, and will get, the same rights.

  11. Ron Robertson

    August 7, 2014 at 1:46 am

    Manny Carvajal If there is a God, Manny, I think you're the one who's going to be surprised. Jesus never said a thing about homosexuality, even though it existed during the time of his purported existence. Every single bible quote used to justify your homophobia has an alternate explanation, one that's more credible than yours. So, when you choose to be homophobic, it's a lifestyle choice. You need to decide if you're going to use faith as an argument (the bible), science (when you're talking about DNA), or observed nature. Why do you think you know more about being gay, and how it occurs than gay people do? That's just foolish. Gay people make bonds with other gay people, that's in our nature. It's not our DNA that prevents two men from having children, incidentally. And we should "respect" your definition of marriage for no other reason than you demand it? Look who's the spoiled child stamping his foot that we should believe what he says, because he said it.

  12. Anonymous

    August 7, 2014 at 1:47 am

    In this country we do not believe in the the principle of "Separate but Equal". Manny you need to pack your belongings and head to the Middle East. Because you are Un-American!

  13. Paul Linxwiler

    August 7, 2014 at 1:55 am

    Manny Carvajal I use your magic book for toilet paper.

  14. Valerie Jones

    August 7, 2014 at 1:57 am

    At this point, Manny, you are coming off as a troll. So to you I say, "Be gone!"

  15. Manny Carvajal

    August 7, 2014 at 2:03 am

    hnl95 Kiss my red, white and blue butt, just cause you don't like my opinion of gays and marriage doesn't mean I'm un-American. I love my country and have the right to practice my First Amendment on this websites comment section. Now if you are all mad because you know deep down inside I might be right, then you all have to learn to deal with it. Do some research and you'll discover that being gay starts out in the mothers womb the genes with attract you to the opposite sex during your development in the womb malfunction and cause you to become attracted to your own sex instead, it's been scientifically proven, so in essence being gay is a genetic malfunction and here's the scientific research to back up my statements. http://www.theguardian.com/world/2008/dec/01/homosexuality-genetics-usa http://www.theguardian.com/science/2014/feb/14/genes-influence-male-sexual-orientation-study http://www.usnews.com/news/articles/2012/12/11/scientists-may-have-finally-unlocked-puzzle-of-why-people-are-gay

  16. Manny Carvajal

    August 7, 2014 at 2:08 am

    Valerie Jones I see when someone tells you the truth and backs it up with scientific research you get all defense and call them a troll and run away, what's a matter you don't agree with the scientific facts now?

  17. Kristine Evenson

    August 7, 2014 at 2:20 am

    Manny Carvajal When same sex marriage becomes legal in all 50 states all the anti-gay religious zealots will finally be free to work on improving their own marriages instead of spying on and trying to control the bedroom activities of their neighbors. It's a win-win situation for everyone.

  18. John Teixeira

    August 7, 2014 at 2:41 am

    The argument about procreation was found to be invalid. Should heterosexual couples who cannot have children, be banned from marriage?

  19. Manny Carvajal

    August 7, 2014 at 3:45 am

    John Teixeira You analogy is flawed because in principal heterosexual couples have been designed by nature for the specific purpose of the procreation of there species. While some heterosexual couples cannot have children because of medical conditions etc, that does not validate the argument that homosexual couples have the same right to marriage as heterosexual couples do.

  20. Scott Wooledge

    August 7, 2014 at 4:04 am

    Sutton asked why proceed through the judicial process — as opposed to legislative and ballot process — if the desired result was changing hearts and minds to achieve greater acceptance.

    Simple answer: "My clients will be dead before Kentucky and Tennessee legislature pass marriage equality, your honor."

  21. John Teixeira

    August 7, 2014 at 4:21 am

    Manny Carvajal No, your argument is flawed. You state that because procreation is the purpose for marriage, homosexual couples should not be allowed to marry. Address, therefore, why heterosexuals who can't have kids should be allowed to marry. Marriage is more than just about procreation; it's about love, companionship, benefits, etc. We are not back in the days with Abraham and them. It's a new day. You spend so much time hating, I wonder if you are a closeted homosexual.

  22. Manny Carvajal

    August 7, 2014 at 4:41 am

    John Teixeira Lets just agree to disagree, I will not change your views on this subject just as you will not change mines. As for hate, your assumption of me hating homosexuals is wrong, I don't hate anyone. I simply disagree with there sexual lifestyle and there idea of marriage between two members of the same gender. I enjoy debating highly controversial subjects such as homosexuality and marriage, I'm well aware that we are in an advanced technical age and no longer in the days of Abraham, but thanks for pointing that out. Well it seems this debate has reached its end for me, as I see it as bating a dead dog with a stick now. To all god bless and goodnight.

    • Rik

      August 7, 2014 at 3:23 pm

      Manny Cavajal, if you could please learn to spell “their” in your obnoxious and ill-informed posts, it would at least make me wince a little less.

  23. John Teixeira

    August 7, 2014 at 4:43 am

    Manny Carvajal Good night!

  24. Dan Clegg

    August 7, 2014 at 9:43 am

    Manny Carvajal your comments are so full of stupid, I don't even know where to start. But let's be clear – marriage doesn't make a blind bit of difference to conception. We could ban marriage tomorrow and babies would continue to be born. If by some very odd, weird and unlikely circumstance that allowing gays to marry will suddenly turn EVERYONE in the world gay (you realise how mind-numbingly stupid this sounds, yes) then gay men will still have sperm and gay women will still have ovaries. Ergo, I'm sure we'd find a way to keep the population going, albeit the children being brought into the world would actually be planned and wanted and not just accidental. But hey, you're clearly a closed-minded bigot with no power of independent thought so all of this will be lost on you anyway.

  25. Ken

    August 7, 2014 at 10:23 am

    Heterosexual couples do not have to pass a fertility test or a child-rearing text to get a marriage license. This requirement exists only in the attorney’s arguments, not in the law they are defending. They define the plaintiffs sitting in the same room as not meeting the requirement, even though they do.

    In other words. The attorneys are inventing imaginary requirements to bar a minority group from marrying. How is this not animus?

  26. Ken Collins

    August 7, 2014 at 2:32 pm

    There are about six people in this article who are mentioned by name, and for me at least it is confusing. Deep in the article it's hard to tell who's what. It says "Smith said A, Jones replied B, Johnson interjected C, then Smith said D. Who are the judges and who are the attorneys? It would be a lot clearer if it said, "Smith said A, Judge Jones replied B, Judge Johnson interjected C, then Smith said D." Or "Judge Smith said A, Jones replied B, Judge Johnson interjected C, then Judge Smith said D." Or whatever you mean.

  27. DONALD

    August 7, 2014 at 11:43 am

    I don’t see why there is debate. I was married legally in the “constitution state”, the state of Connecticut. I had my marriage solemnized by the priest of my local Episcopal (Episcopal is the name of the Anglican church in the United States (all Anglican churches are officiated by bishops and are national churches, not to be under the shepherding of a foreign)) parish, in the church where I have a membership “in good standing.” The idea that somehow Marriage is a name that’s left only to opposite sex couples is weird.

    My legally binding marriage by both state . . . ( traditionally any states legally performed marriage has been recognized as the norm and usually accepted as such when one goes home to ones own state). . . . the state of Connecticut in my case and my religion of choice which is the largest Christian denomination in the world, Anglican/Episcopal should be condidered marriage in vow, word and deed. We the people, my spouse and I, have done everything legally possible to get married. Marriage creates bonds that cannot be achieved by any other means, it protects property, it protects family and it protects the rights of our children to have two legal dads and possibly two legal moms. These are our rights. These are possibilities we only get when gay parents get married. I, and my spouse went to great lengths to get married legally and to have a Christian marriage and I had to travel with my soon to be spouse just to get married. Most people are able to just go around the corner to city hall in their locality. I had to rent a car and drive to Connecticut from Fort Lauderdale. I had to go to great expense to marry. Because my church will only solemnize legal marriages we had to do it legally. So, potentially the ethics behind my “gay” marriage are somewhat greater than the ethics involved in that straight marriage. I was married by a former marine, a priest, and a full church. I went dancing at the rainbow room on the top floor of Fort Lauderdale’s Bank of America with that same church (a traditional place to have one’s reception in Fort Lauderdale.) I feel blessed to have my spouse, I am blessed to have a supportive parish church, and I’m blessed to have a supportive bishop. Let’s continue on this path of good ethics!!!

  28. Morgan Pearson

    August 7, 2014 at 3:44 pm

    Manny, There has been same sex unions since long before the bible was written. It is not something new but has been around for eons. The Romans had them, the Mesopotamians had them, the Egyptians had them and so on. marriage is a bond between 2 people who love each other, first and foremost.

  29. John Simpson

    August 7, 2014 at 7:49 pm

    Funny, I'm married to the guy in the picture with me and it has only benefited us and made us more equal in the eyes of the law. The definition of marriage has changed countless times of the centuries and for prejudice and blind ignorance to now try to block this evolution of human understanding is predicate upon a fallacy propagated by the GOP and the Fundamentalists of this country.

  30. Audrey Fisher

    August 7, 2014 at 8:11 pm

    I'm more amused that the GOP decided to partner with the far Religious Right and decided to try and substitute Equal Rights with "popularity vote". That left the LGBT with essentially one avenue – which was to sue. GOP made a huge mistake and refuse to admit it. hee hee hee.

  31. Alex Robbins

    August 7, 2014 at 9:21 pm

    Manny Carvajal – Completely and utterly absent from your rhetoric: a good reason for denying same sex couples the right to get marrried.

    Thankfully, the country is waking up to the fact that you don't have a good argument to make. Consequently, that's why your definition, and its validity, is crumbling before your very eyes.

    Edit – Also, we all know Odin is the one true god; Thor is his son, wielder of Mjolnir. Repent now and discard your book of fables before the one true god!

    • Valerie Jones

      August 7, 2014 at 11:00 pm

      Alex wins!

  32. Troy A Morgan

    August 7, 2014 at 11:56 pm

    Manny Carvajal if you are saying your ok with all the exact same terms then why have two names for it when it is exactly the same? That idea is flawed in it's self! Gay's and Lesbians can procreate using modern technologies and surrogate mothers. For that mater some that are married and straight are not getting married to have children and never do. That is also a flawed idea that you get married so you can have kids. Some never marry and have children and are very happy that way. I think you need to put more thought into why people get married and not say everyone does it for the same reasons.

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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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D.C. bill to ban LGBTQ panic defense delayed by Capitol security

Delivery of bill to Congress was held up due to protocols related to Jan. 6 riots

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New fencing around the Capitol following the Jan. 6 insurrection prevented some D.C. bills from being delivered to the Hill for a required congressional review. (Blade file photo by Michael K. Lavers)

A bill approved unanimously last December by the D.C. Council to ban the so-called LGBTQ panic defense has been delayed from taking effect as a city law because the fence installed around the U.S. Capitol following the Jan. 6 insurrection prevented the law from being delivered to Congress.

According to Eric Salmi, communications director for D.C. Council member Charles Allen (D-Ward 6), who guided the bill through the Council’s legislative process, all bills approved by the Council and signed by the D.C. mayor must be hand-delivered to Congress for a required congressional review.

“What happened was when the Capitol fence went up after the January insurrection, it created an issue where we physically could not deliver laws to Congress per the congressional review period,” Salmi told the Washington Blade.

Among the bills that could not immediately be delivered to Congress was the Bella Evangelista and Tony Hunter Panic Defense Prohibition and Hate Crimes Response Amendment Act of 2020, which was approved by the Council on a second and final vote on Dec. 15.

Between the time the bill was signed by Mayor Muriel Bowser and published in the D.C. Register under procedural requirements for all bills, it was not ready to be transmitted to Congress until Feb. 16, the Council’s legislative record for the bill shows.

Salmi said the impasse in delivering the bill to Congress due to the security fence prevented the bill from reaching Congress on that date and prevented the mandatory 60-day congressional review period for this bill from beginning at that time. He noted that most bills require a 30 legislative day review by Congress.

But the Evangelista-Hunter bill, named after a transgender woman and a gay man who died in violent attacks by perpetrators who attempted to use the trans and gay panic defense, includes a law enforcement related provision that under the city’s Home Rule Charter passed by Congress in the early 1970s requires a 60-day congressional review.

“There is a chance it goes into effect any day now, just given the timeline is close to being up,” Salmi said on Tuesday. “I don’t know the exact date it was delivered, but I do know the countdown is on,” said Salmi, who added, “I would expect any day now it should go into effect and there’s nothing stopping it other than an insurrection in January.”

If the delivery to Congress had not been delayed, the D.C. Council’s legislative office estimated the congressional review would have been completed by May 12.

A congressional source who spoke on condition of being identified only as a senior Democratic aide, said the holdup of D.C. bills because of the Capitol fence has been corrected.

“The House found an immediate workaround, when this issue first arose after the Jan. 6 insurrection,” the aide said.

“This is yet another reason why D.C. Council bills should not be subject to a congressional review period and why we need to grant D.C. statehood,” the aide said.

The aide added that while no disapproval resolution had been introduced in Congress to overturn the D.C. Evangelista-Hunter bill, House Democrats would have defeated such a resolution.

“House Democrats support D.C. home rule, statehood, and LGBTQ rights,” said the aide.

LGBTQ rights advocates have argued that a ban on using a gay or transgender panic defense in criminal trials is needed to prevent defense attorneys from inappropriately asking juries to find that a victim’s sexual orientation or gender identity or expression is to blame for a defendant’s criminal act, including murder.

Some attorneys have argued that their clients “panicked” after discovering the person against whom they committed a violent crime was gay or transgender, prompting them to act in a way they believed to be a form of self-defense.

In addition to its provision banning the LGBTQ panic defense, the Evangelista-Hunter bill includes a separate provision that strengthens the city’s existing hate crimes law by clarifying that hatred need not be the sole motivating factor for an underlying crime such as assault, murder, or threats to be prosecuted as a hate crime.

LGBTQ supportive prosecutors have said the clarification was needed because it is often difficult to prove to a jury that hatred is the only motive behind a violent crime. The prosecutors noted that juries have found defendants not guilty of committing a hate crime on grounds that they believed other motives were involved in a particular crime after defense lawyers argued that the law required “hate” to be the only motive in order to find someone guilty of a hate crime.

Salmi noted that while the hate crime clarification and panic defense prohibition provisions of the Evangelista-Hunter bill will become law as soon as the congressional review is completed, yet another provision in the bill will not become law after the congressional review because there are insufficient funds in the D.C. budget to cover the costs of implementing the provision.

The provision gives the D.C. Office of Human Rights and the Office of the D.C. Attorney General authority to investigate hate related discrimination at places of public accommodation. Salmi said the provision expands protections against discrimination to include web-based retailers or online delivery services that are not physically located in D.C.

“That is subject to appropriations,” Salmi said. “And until it is funded in the upcoming budget it cannot be legally enforced.”

He said that at Council member Allen’s request, the Council added language to the bill that ensures that all other provisions of the legislation that do not require additional funding – including the ban on use of the LGBTQ panic defense and the provision clarifying that hatred doesn’t have to be the sole motive for a hate crime – will take effect as soon as the congressional approval process is completed.

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D.C. man charged with 2020 anti-gay death threat rearrested

Defendant implicated in three anti-LGBTQ incidents since 2011

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shooting, DC Eagle, assault, hate crime, anti-gay attack, police discrimination, sex police, Sisson, gay news, Washington Blade

A D.C. man arrested in August 2020 for allegedly threatening to kill a gay man outside the victim’s apartment in the city’s Adams Morgan neighborhood and who was released while awaiting trial was arrested again two weeks ago for allegedly threatening to kill another man in an unrelated incident.

D.C. Superior Court records show that Jalal Malki, who was 37 at the time of his 2020 arrest on a charge of bias-related attempts to do bodily harm against the gay man, was charged on May 4, 2021 with unlawful entry, simple assault, threats to kidnap and injure a person, and attempted possession of a prohibited weapon against the owner of a vacant house at 4412 Georgia Ave., N.W.

Court charging documents state that Malki was allegedly staying at the house without permission as a squatter. An arrest affidavit filed in court by D.C. police says Malki allegedly threatened to kill the man who owns the house shortly after the man arrived at the house while Malki was inside.

According to the affidavit, Malki walked up to the owner of the house while the owner was sitting in his car after having called police and told him, “If you come back here, I’m going to kill you.” While making that threat Malki displayed what appeared to be a gun in his waistband, but which was later found to be a toy gun, the affidavit says.

Malki then walked back inside the house minutes before police arrived and arrested him. Court records show that similar to the court proceedings following his 2020 arrest for threatening the gay man, a judge in the latest case ordered Malki released while awaiting trial. In both cases, the judge ordered him to stay away from the two men he allegedly threatened to kill.

An arrest affidavit filed by D.C. police in the 2020 case states that Malki allegedly made the threats inside an apartment building where the victim lived on the 2300 block of Champlain Street, N.W. It says Malki was living in a nearby building but often visited the building where the victim lived.

“Victim 1 continued to state during an interview that it was not the first time that Defendant 1 had made threats to him, but this time Defendant 1 stated that if he caught him outside, he would ‘fucking kill him.’” the affidavit says. It quotes the victim as saying during this time Malki repeatedly called the victim a “fucking faggot.”

The affidavit, prepared by the arresting officers, says that after the officers arrested Malki and were leading him to a police transport vehicle to be booked for the arrest, he expressed an “excited utterance” that he was “in disbelief that officers sided with the ‘fucking faggot.’”

Court records show that Malki is scheduled to appear in court on June 4 for a status hearing for both the 2020 arrest and the arrest two weeks ago for allegedly threatening to kill the owner of the house in which police say he was illegally squatting.

Superior Court records show that Malki had been arrested three times between 2011 and 2015 in cases unrelated to the 2021 and 2020 cases for allegedly also making threats of violence against people. Two of the cases appear to be LGBTQ related, but prosecutors with the U.S. Attorney’s Office did not list the cases as hate crimes.

In the first of the three cases, filed in July 2011, Malki allegedly shoved a man inside Dupont Circle and threatened to kill him after asking the man why he was wearing a purple shirt.

“Victim 1 believes the assault occurred because Suspect 1 believes Victim 1 is a homosexual,” the police arrest affidavit says.

Court records show prosecutors charged Malki with simple assault and threats to do bodily harm in the case. But the court records show that on Sept. 13, 2011, D.C. Superior Court Judge Stephen F. Eilperin found Malki not guilty on both charges following a non-jury trial.

The online court records do not state why the judge rendered a not guilty verdict. With the courthouse currently closed to the public and the press due to COVID-related restrictions, the Washington Blade couldn’t immediately obtain the records to determine the judge’s reason for the verdict.

In the second case, court records show Malki was arrested by D.C. police outside the Townhouse Tavern bar and restaurant at 1637 R St., N.W. on Nov. 7, 2012 for allegedly threatening one or more people with a knife after employees ordered Malki to leave the establishment for “disorderly behavior.”

At the time, the Townhouse Tavern was located next door to the gay nightclub Cobalt, which before going out of business two years ago, was located at the corner of 17th and R Streets, N.W.

The police arrest affidavit in the case says Malki allegedly pointed a knife in a threatening way at two of the tavern’s employees who blocked his path when he attempted to re-enter the tavern. The affidavit says he was initially charged by D.C. police with assault with a dangerous weapon – knife. Court records, however, show that prosecutors with the U.S. Attorney’s Office lowered the charges to two counts of simple assault. The records show that on Jan. 15, 2013, Malki pleaded guilty to the two charges as part of a plea bargain arrangement.

The records show that Judge Marissa Demeo on that same day issued a sentence of 30 days for each of the two charges but suspended all 30 days for both counts. She then sentenced Malki to one year of supervised probation for both charges and ordered that he undergo alcohol and drug testing and undergo treatment if appropriate.

In the third case prior to the 2020 and 2021 cases, court records show Malki was arrested outside the Cobalt gay nightclub on March 14, 2015 on multiple counts of simple assault, attempted assault with a dangerous weapon – knife, possession of a prohibited weapon – knife, and unlawful entry.

The arrest affidavit says an altercation started on the sidewalk outside the bar when for unknown reasons, Malki grabbed a female customer who was outside smoking and attempted to pull her toward him. When her female friend came to her aid, Malki allegedly got “aggressive” by threatening the woman and “removed what appeared to be a knife from an unknown location” and pointed it at the woman’s friend in a threatening way, the affidavit says.

It says a Cobalt employee minutes later ordered Malki to leave the area and he appeared to do so. But others noticed that he walked toward another entrance door to Cobalt and attempted to enter the establishment knowing he had been ordered not to return because of previous problems with his behavior, the affidavit says. When he attempted to push away another employee to force his way into Cobalt, Malki fell to the ground during a scuffle and other employees held him on the ground while someone else called D.C. police.

Court records show that similar to all of Malki’s arrests, a judge released him while awaiting trial and ordered him to stay away from Cobalt and all of those he was charged with threatening and assaulting.

The records show that on Sept. 18, 2015, Malki agreed to a plea bargain offer by prosecutors in which all except two of the charges – attempted possession of a prohibited weapon and simple assault – were dropped. Judge Alfred S. Irving Jr. on Oct. 2, 2015 sentenced Malki to 60 days of incarnation for each of the two charges but suspended all but five days, which he allowed Malki to serve on weekends, the court records show.

The judge ordered that the two five-day jail terms could be served concurrently, meaning just five days total would be served, according to court records. The records also show that Judge Irving sentenced Malki to one year of supervised probation for each of the two counts and ordered that he enter an alcohol treatment program and stay away from Cobalt.

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