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Tenn. court breaks string of marriage equality rulings, upholds ban

Judge says DOMA decision applies to federal laws, not the states

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gavel, gay news, Washington Blade, justice
gavel, gay news, Washington Blade, justice

A Tennessee court has broken the string of victories for marriage equality within the courts (Photo by Bigstock).

A county judge in Tennessee has upheld the state’s ban on gay nuptials, reportedly breaking a string of at least 30 court victories in favor of marriage equality.

Ninth Judicial District Circuit Court Judge Russell Simmons Jr. of Kingston upheld the Tennessee ban in a seven-page decision issued on Aug. 5 that became electronically available on Monday.

“The Court finds that marriage is a fundamental right,” Simmons writes. “However, neither the Tennessee Supreme Court nor the United States Supreme Court has ever decided that this fundamental right under a state’s laws extends beyond the traditional definition of marriage as a union between one (1) man and one (1) woman.”

Simmons upheld both Tennessee’s ban on same-sex marriage, approved by voters as part of the state constitution in 2006, and the state’s Anti-Recognition Law prohibiting recognition of same-sex marriages performed elsewhere.

Unlike other judges who’ve determined bans on same-sex marriage cannot withstand scrutiny following the U.S. Supreme Court’s decision against the Defense of Marriage Act, Simmons determined the DOMA decision doesn’t apply to cases against marriage laws within the states.

“The Windsor case is concerned with the definition of marriage, only as it applies to federal laws, and does not give an opinion concerning whether one State must accept as valid a same-sex marriage allowed in another state,” Simmons writes.

Instead, Simmons finds that a 1972 decision resulting from the marriage equality case of Baker v. Nelson, which the Supreme Court refused to hear for lack of federal question, is “still applicable” to the courts.

Simmons emphasizes that his ruling is only binding on this case and on this court. Further, he invites appellate courts to assess whether doctrinal developments in the judicial system after the Baker decision have changed judicial precedent with respect to marriage.

That ruling from an appellate court may come soon now that a three-judge panel on the U.S. Sixth Circuit Court of Appeals has heard a federal challenge to Tennessee’s ban on same-sex marriage. A decision from the court is expected in a month or two.

According to SCOTUSblog’s Lyle Denniston, the Tennessee ruling marks the first time in the 14 months since the Supreme Court ruled against DOMA that a court has determined a ban on same-sex marriage is constitutional.

“More than two dozen courts, from trial courts to state supreme courts and federal appeals courts, have faced that constitutional issue, and the string of decisions nullifying the bans was unbroken until the Tennessee decision,” Denniston writes.

Marc Solomon, national campaign director for the LGBT group Freedom to Marry, said the loss for supporters of marriage equality in this court is an isolated one.

“One wrong-headed decision out of more than 35 cases since the landmark victory at the Supreme Court last year isn’t too shabby,” Solomon said. “It also serves as a reminder that, while we’ve been winning, we haven’t yet won and so we need to keep making the case in the court of public opinion that America’s ready for national resolution and that the denial of marriage in Tennessee and elsewhere has real, human consequences.”

The lawsuit was filed by Frederick Michael Borman and Larry Kevin Pyles-Borman, a gay couple that resides in Tennessee, but married in Iowa in 2010. The couple challenged the constitutionality of the marriage laws in Tennessee because they’re seeking a divorce.

Although SCOTUSblog is asserting that the Tennessee decision is the first in favor of a marriage ban since the DOMA decision, the Human Rights Campaign is disputing that characterization.

Other state judges have refused to grant divorces to same-sex couples in Mississippi and Florida as a result of bans on same-sex marriage, HRC noted. The string of rulings in favor of marriage equality at the federal level also remains unbroken.

“We have consistently pointed to the consecutive string of federal court victories, as it would be inaccurate to lump in state court rulings to that string of wins,” said Charles Joughlin, an HRC spokesperson.

The decision comes several months after Simmons, 70, announced he would retire from the bench after completing his eight-year term this year. Simmons was appointed interim judge in 1990 by the late Gov. Ned McWherter, a Democrat, and won elections to continue serving on the bench in 1992, 1998 and 2006.

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31 Comments

31 Comments

  1. Tony Wichowski

    August 11, 2014 at 10:01 pm

    Say NO to the Radical Christofascist Agenda, before the minions of hater-Jesus turn their vile gaze on YOUR family's citizenship.

  2. VisionofHildegardofBingen

    August 11, 2014 at 6:53 pm

    Christianity is a social disease. Kill it. It is directly responsible for this discrimination, and we continue to clean up its sewage without any help from its infected pions. Instead, Christianity continues to spread its disease through the mouths of its leading liars who’ve never, ever, been exposed to the discrimination that is the product of a worthless, empty religion. Destroy the social disease of Christianity.

  3. Doug Williams

    August 11, 2014 at 11:43 pm

    leave it to Tennessee the state of Sista Mommas…inbred fucktards!

  4. Doug Williams

    August 11, 2014 at 11:43 pm

    leave it to Tennessee the state of Sista Mommas…inbred fucktards!

  5. Jokie X Wilson

    August 12, 2014 at 12:31 am

    The weird thing is his decision, as worded, could be helpful later. I wish he wasn't deciding this by technical issues, but that can be used towards a win at another time.

  6. Godwin Slaugh

    August 12, 2014 at 1:50 am

    I still can't quite believe that a state case from the early 70s–one that SCOTUS didn't even hear–can have any kind of precedent today. It's confounding, and very convenient for a judge wanting to find a loophole.

    • El Dorado

      August 12, 2014 at 8:51 pm

      Precedent has no statute of limitations unless it’s later found the case was ruled upon based on faulty reasoning. Roe V Wade was decided in 1973 and still impacts us today.

      Of course, our enemies will always look for a loophole but the case they site I’d say has been trumped by the court reviewing the Windsor and Prop 8 case. DOMA is also a federal law that allows states to deny recognition of marriage equality. You can no loner say it’s not a federal issue.

      Finally, we have precedent in Romer V. Evans which ruled laws cannot be passed based on a majority’s dislike of gay people that infringe upon their equal protection under the law. That’s what DOMA is doing. The good thing is this majority was written by Justice Kennedy! You can see where this is heading.

  7. David Mitchell

    August 12, 2014 at 4:48 am

    Another county or state judge can overrule that judges decision.

  8. charles

    August 12, 2014 at 1:08 am

    Hopefully the 6th circuit court will rule in favor of the gay marriage ban. That would all but guarantee that the Supreme Court will take up the Gay Marriage Issue.

    Then it will finally be over. It will be 5-4 in favor of gay marriage with Kennedy being the swing vote. Soon we will be done with this ridiculousness and gay marriage will be legal nationally.

    • El Dorado

      August 12, 2014 at 8:54 pm

      Your assessment will likely be the outcome BUT I would never say it’s over. Roe V Wade made abortion legal in 1973 and conservatives have been fighting that decision to this day!

      If you believe they will give up on opposing marriage equality, you are likely dreaming. It never really ends it seems. Heck, even despite gains by racial minorities under the law, conservatives are always trying to reverse them.

  9. jonathon

    August 12, 2014 at 6:25 am

    Good for Tennessee. Nice to know morals still exist and God is heard. Absolutely nothing against the people but that doesnt mean people have to empower it.

    • El Dorado

      August 12, 2014 at 8:57 pm

      Well, if marriage were owned by religion you might have an argument but it’s not. You can get married without having religion involved at all.

      The state issues the license, enforces the laws of marriage and grants divorces. Churches can do none of that.

  10. Rennie

    August 12, 2014 at 6:40 am

    If you rant uncontrollably about issues and other peoples viewpoints without regard to truth or circumstance: You might be an extremist.
    If your words of hate are directed towards others as a group, and not as the individuals you actually have a problem with, you might be a bigot.
    If vile and contemptible things flow from your lips like water without regard to who you might hurt or offend, you might be a self-rightous prick. It does not matter which side you’re on, if you are an extremist, angry, foul mouthed a-hole you’re just standing the way. Move over and let the adults take over.

  11. Stefan Varner

    August 12, 2014 at 2:13 pm

    Baker imposes no precedent here nor in any LGBT Marriage case. Judge Simmons focuses on the 'Rights of States', rather than the Rights of Individuals which factually prevail under the U.S. Constitution. Bottom line: He is Constitutionally wrong. Judge Simmons has made the decision to abandon his integrity, to cower to his constituents, and to defy the U.S. Constitution, and in doing so he has created his own shameful legacy. Sadly, there will be those on the Supreme Court who will do the same. Those who support the bans will be remembered like those who supported the maintenance of Slavery in the Confederate South. This should not be a difficult decision for the Constitutionally-literate. History is being made, and Chief Justice Roberts should know this very well.

    • El Dorado

      August 12, 2014 at 9:00 pm

      Don’t count on Roberts to make a just decision. I don’t think he sides with marriage equality. This will solely hinge on Justice Kennedy.

  12. Frank Cardinalli

    August 12, 2014 at 3:12 pm

    This from the same state that gave us the Scopes monkey trial in the 1920's. A seven
    page decision? A hick county judge?

  13. James Fox

    August 12, 2014 at 4:30 pm

    Why would anyone say no to common sense… Unless it is based off of a mythical god!

    • Alexander Everhart

      August 12, 2014 at 12:40 pm

      Hey get off my 15,000 year old flat earth and leave my talking snakes and booming voices from the sky alone. Oh and don’t touch my bacon either, even though I’m not supposed to be eating pork products.

    • El Dorado

      August 12, 2014 at 9:02 pm

      Well, as Mark Twain put it, “faith is believing in something you know ain’t so!”

  14. Alexander Everhart

    August 12, 2014 at 12:36 pm

    Christinsanity is a social and mental disease and should not be allowed. It is immoral. It is a choice. I do not agree with the lifestyle. Gay people getting married does not take away anyone’s freedom of religion. However, denying gay marriage DOES take away religious freedom from others such as myself. CONservative Christians don’t believe in religious freedom, they are very selfish, vile hypocrites who violate their own gods commandments. Going to church on Sunday even though sabbath is Saturday. Eating so much pork that they become so fat you would think the guys are going to give birth to their Anti-Christ. I wish all CONservative Christians would move to the South and that the South would finally secede from The Union and be done with them once and for all.

  15. Comer Martin

    August 12, 2014 at 6:25 pm

    As a resident of Tennessee for 39 of my 57 years…we're not all as described…we do wear shoes, we don't marry our second cousin…it's our third cousin. Let this play out in the courts and don't knock the whole state for one miss-guided judge.

  16. Kenneth Trout

    August 12, 2014 at 6:47 pm

    Cheer up Comer. You could be from TEXAS! LOL

  17. Mike Brooks

    August 12, 2014 at 7:01 pm

    It's not a ban on gay "marriage," it defines marriage as the union of one man and one woman, which includes many other arrangements beyond same-sex couples.

  18. Mike Brooks

    August 12, 2014 at 7:03 pm

    Never took one course in civil law? Look up Marbury v. Madison (1803), still good precedent. The law doesn't change just because a culture gets confused.

  19. El Dorado

    August 12, 2014 at 8:45 pm

    “The Windsor case is concerned with the definition of marriage, only as it applies to federal laws, and does not give an opinion concerning whether one State must accept as valid a same-sex marriage allowed in another state,” Simmons writes. Instead, Simmons finds that a 1972 decision resulting from the marriage equality case of Baker v. Nelson, which the Supreme Court refused to hear for lack of federal question, is “still applicable” to the courts.
    ==========================================================================
    At the time of the 1972 decision, there was no federal precedent for reviewing any case on marriage equality for Same-Sex Marriage. So of course, there would have not been a federal question. Simmons has it ass-backwards like most conservatives! Windsor and the Prop 8 case, established a federal question on marriage equality which the SCOTUS cannot ignore.

    How can marriage at the state level not be in question given that DOMA, a federal law, restricts recognition of marriage equality based on state laws and gives states the right to refuse recognition of such marriages? We have precedent for gay rights under Romer V. Evans which said laws cannot single out gay people as they have equal protection under the US constitution. Our arguments must site the Romer precedent which Justice Kennedy wrote!

  20. Sam Overbey

    August 13, 2014 at 1:29 am

    for an article detailing discriminatory practices by one person against a group, I certainly wouldn't think someone would label an entire group of people as ______. you are just as bad as that inbred fucktard judge.

  21. Jane Daffron

    August 13, 2014 at 4:31 pm

    The county judge needs a fresher course on the US Constitution and the 14th Amendment.

  22. Jane Daffron

    August 13, 2014 at 4:33 pm

    Considering that all overturns have been from the Federal court, which holds more importance than a yahoo county judge who needs to go back to school (if he ever went), this so-called "ruling" won't hold up under the 14th Amendment of the US Constitution.

    COUNTY judge needs to learn how to read.

  23. Drew Heinrich

    August 13, 2014 at 6:52 pm

    Maybe appointed officials and others with strong religious views will one day be able to separate Church from State.

    I would like to dissect the Judge's statement on the Tenn. ruling:

    1. “Marriage simply cannot be divorced from its traditional procreative purposes"
    So if you are unable, or too old to procreate, you can't get married?

    2. "The promotion of family continuity and stability is certainly a legitimate state interest."
    Having two loving parents of the same sex in the same environment is not considered a stable environment and could alter the next generation of family?

    3. "There is nothing irrational about limiting the institution of marriage for the purpose for which it was created, by embracing its traditional definition."
    The traditional definition of marriage originated way before the religious adaptation of the Bible for various reasons (alliances, wealth, etc.) and usually included more than one woman.

    4. "To conclude otherwise is to impose one’s own view of what a State ought to do on the subject of same-sex marriage."
    Is the Judge not imposing his own (Religious Biblical) view on same-sex marriage?

    Much of the recent debate has focused on the notion of who "owns" marriage – the Church or the State. Both, however, have played key roles at different times in the history of the institution.
    http://www.bbc.com/news/magazine-17351133

  24. Julien Pierre

    August 13, 2014 at 11:34 pm

    You just have to love the judge's analysis of whether the same-sex marriage ban meets "rational basis". Essentially he states : "it is rational because the voters said so" !

  25. Princess Sheilyia

    August 14, 2014 at 6:59 am

    Yayyyyyyyyyyy! Great job!

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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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