Connect with us

homepage news

Supreme Court may decide Monday to take up marriage

Lack of conflict at circuit level could lead to delay

Published

on

Supreme Court, same-sex marriage, gay marriage, marriage equality, gay news, Washington Blade
Supreme Court, gay news, Washington Blade

The U.S. Supreme Court may decide to take up a marriage case next week. (Washington Blade file photo by Michael Key)

Next week, the U.S. Supreme Court will have its first opportunity to decide whether to take up a lawsuit seeking a nationwide constitutional right to same-sex marriage.

For the first conference of its upcoming term on Monday, the court has docketed five cases seeking marriage equality for which petitions for certiorari have been filed: Kitchen v. Herbert, the Utah case; Bishop v. Smith, the Oklahoma case; Bostic v. Schaefer, the Virginia case; Wolf v. Walker, the Wisconsin case; and Baskin v. Bogan, the Indiana case.

It takes a vote of four justices out of the nine to grant certiorari (or decide to take up a case) for any particular case. Most observers expect the Supreme Court to take up one or more of the cases to decide an issue with such nationwide importance as marriage equality, but justices are under no obligation to take up a case and may well hold off on a decision until a later conference.

Suzanne Goldberg, a lesbian and co-director of Columbia University’s Center for Gender & Sexuality Law, said it’s hard to predict what the court will do at its initial conference, even though justices are under significant pressure to act.

“While it is great sport to predict what the Supreme Court might do on marriage, or any other issue, it is certainly not science,” Goldberg said. “There is pressure on the court from many quarters – including same-sex couples, states, federal elected officials and others – to resolve the marriage equality question. At the same time, the court is being asked to review decisions that all upheld marriage equality claims.”

A total of 32 states in some form of legal filing have called on the Supreme Court to take up a lawsuit to settle the issue of whether same-sex couples have a constitutional right to marry. Religious groups, including the Church of Latter-day Saints and the U.S. Conference of Catholic Bishops, signed a friend-of-the-court brief asking justices to uphold laws banning same-sex marriage.

The Obama administration hasn’t formally weighed in before the Supreme Court on whether it should take up a lawsuit seeking same-sex marriage, even though U.S. Attorney General Eric Holder has already said the Obama administration would file a friend-of-the-court brief in support of a case seeking marriage equality. It’s unclear when the Justice Department will formally state its opinion on the constitutional right of same-sex marriage before the Supreme Court.

Also uncertain is when the public will know whether the court has decided to take up a case during its initial conference on Sept. 29. Orders from the court on decisions made at the conference could come down that week or beyond.

In the event that the court doesn’t make a decision, the next opportunity for the court to opt to take up a case is at the subsequent conference on Oct. 10. The next scheduled conferences for this term are Oct. 17, Oct. 31, Nov. 7, Nov. 14, Nov. 25, Dec. 5, Dec. 12, Jan. 9, Jan. 16 and Jan. 23.

Adam Romero, federal legal director for the Williams Institute at the University of California, Los Angeles, said he’d be “surprised” if the court made a decision at its initial conference because of the unanimity thus far of decisions against bans on same-sex marriage among the circuit courts.

“The three Courts of Appeals that have issued decisions on same-sex marriage bans have agreed the bans are unconstitutional, so there is not a ‘conflict’ or ‘split’ between the Courts of Appeals that the Supreme Court often looks for when deciding whether or not to accept a case,” Romero said. “Furthermore, at least four additional Courts of Appeals are poised to issue decisions on same-sex marriage bans in the next several months, so the Supreme Court may want to wait to take action until some or all of those decisions are issued.”

The U.S. Ninth Circuit Court of Appeals could issue its decision on cases challenging marriage bans in Nevada and Idaho at any time, as could the U.S. Sixth Circuit Court of Appeals for cases challenging marriage bans in Michigan, Ohio, Tennessee and Kentucky. Some observers believe the Sixth Circuit has the greatest chance among all the circuit courts to uphold bans on same-sex marriage following nearly unanimous decisions against such laws.

Even if those decisions came down from the courts and petitions for certiorari in the cases were filed before the Supreme Court’s initial conference, they’d still be ineligible for consideration because the deadline for a case to be docketed for consideration was Sept. 10.

One indication that the Supreme Court may hold off on deciding whether or not to take up a case came in comments that U.S. Associate Justice Ruth Bader Ginsburg offered before a Minnesota audience last week.

If the Sixth Circuit falls in line with other decisions from other circuit courts to strike down bans on same-sex marriage, Ginsburg said there’s “no need for us to rush,” but if the appeals court upholds the ban “there will be some urgency,” according to the Associated Press.

That could be a suggestion the court is willing to deny cert in cases before the court because appeals courts have heretofore been unanimous in asserting laws against same-sex marriage are unconstitutional. If so, those denials would mean marriage equality would come to the states under those jurisdictions. As SCOTUSBlog writer and National Constitution Center adviser Lyle Denniston observes, denial of cert could quickly raise the tally of marriage equality states from 19 to 30, or as many as 35.

Goldberg said if, on the other hand, the lack of conflict among the circuits on marriage equality prompts the Supreme Court to simply hold off on a decision, the continued wait will have consequences.

“There is not the conflict between lower court decisions that the court typically prefers, nor would any of these individual decisions cause injustice to same-sex couples in those states, if the decisions stay in place,” Goldberg said. “The problem, of course, is that marriage rights are on hold or non-existent for same-sex couples in many parts of the country, and every day denies fairness and causes real harm to those couples.”

Continue Reading
Advertisement
19 Comments

19 Comments

  1. Kenny Claing

    September 24, 2014 at 9:08 pm

    This is a Gay site, any comment will be taken with a grain of salt. SSM will lose when the chips are down. It cannot stand under scrutiny., because it has no legs to stand on. It is Laws that they want, not Laws that we have. Their "choice" is inequality. Their "choice" is discrimination. Pity

  2. Margo Schulter

    September 24, 2014 at 6:36 pm

    Actually it’s the marriage bans which “cannot stand under scrutiny,” because they don’t have any legitimate legislature purposes. Rather they either preserve a gender-based classification for the sake of doing so, or are motivated by sheer inertia or animus (if those two things are really distinguishable).

    At the time of Baker v. Nelson (1972), the SCOTUS summary disposition of a marriage ban challenge, it may have made sense to argue, “Since we can outlaw homosexual acts between consenting adults in private, it makes sense that we can refuse to recognize marriages whose consummation would likely involve some of those forbidden acts.” However, Lawrence v. Texas (2003) removed that argument, and Justice Scalia very aptly observed in his dissent that if moral disapproval of Lesbian or Gay sex is no longer a permissible legislative purpose, then restriction of marriage to one man/one woman no longer has a basis.

    He was right, as Judge Posner shows in the recent Seventh Circuit decision overturning the bans in Indiana and Wisconsin. As Federal District Judge Heyburn in Kentucky nicely summed it up: “These arguments are not those of serious people.”

  3. Evelyn Gray

    September 25, 2014 at 12:06 am

    I'm pleased to note that you have used quotes around the word choice, so indicating that being gay is NOT a choice! If it was a choice, why would anyone choose to be gay in the many countries around the world that have penalties ranging from imprisonment to death?

  4. Ken Collins

    September 25, 2014 at 10:49 pm

    There doesn't seem to be any reason to delay the issue. Everyone wants them to decide it, which means no one will complain about the process, even if they don't like the result. Yes, there is no dissenting circuit court decision, but stays are in place in most of the cases that prolong the irreparable damage suffered by the plaintiffs. The stays won't come off until the Supreme Court either hears the case or denies the appeal, but not if they just wait. Surely Ginsburg and the other justices realize that the issue has already come to a head and that the longer they wait for an undefined, vague propitious moment, the more the plaintiffs suffer harm. The function of the court is to dispense justice, not to prolong harm, so I fervently hope that the Supreme Court will announce on Monday which case or cases they are going to hear. It's time to get this over with.

    This is like calling 911 for an ambulance and having to make an appointment for next Thursday.

  5. Ken Collins

    September 25, 2014 at 10:59 pm

    Gay marriage will win, because 1) marriage is a right, 2) the constitution guarantees all citizens equal rights, 3) the constitution prohibits states from passing laws that diminish rights or give people unequal rights. The legal argumentation in favor of SSM have not changed.

    On the other hand, the legal argumentation against SSM is constantly shifting. It was imaginary pedophilia, fallacious slippery slope reasoning, invoking imaginary requirements not imposed on others (childrearing skills, procreation), invoking ideals that are not present realities and won't be brought about by banning marriage (no child who lacks a father has received one because gay marriage is banned) or apocalyptic musing that is not born out by fact (Massachusetts has the opposite experience of the doomsayers), alleging that gay marriage is a social experiment when it has been a reality in this country for ten years, and now it is down to children, which is not part of marriage law. Some have even argued that gays don't need marriage because they are more moral! It's all speculation and catastrophizing, or it is religious, which is legally irrelevant.

    Gay marriage has an unprecedented winning streak in court, because the other side, which does not believe that other people's marriages are other people's business, haven't come up with a viable legal argument to back up their side.

  6. Kenny Claing

    September 26, 2014 at 6:18 am

    You don't understand my meaning of "choice" like the 'choices' we make in Life. I am not referring to their Homosexual "choice" which may well be. You do know that Homosexuality is an anonymous entity, don't you? The only reason that it keeps them alive in other Countries. Pity

  7. Kenny Claing

    September 26, 2014 at 6:27 am

    Ken Collins You are clueless at best. You are right and yet wrong. You do seem knowledgeable, and yet lost. I don't believe you understand the intent of the Constitution. You make it say what you want to hear type of thing. You say that Religion is irrelevant, but do not include what you want to excluded. Pity

  8. Kenny Claing

    September 26, 2014 at 6:31 am

    It is only for your agenda that you mention their suffering and plight. It is disingenuous and misplaced. Pity

  9. Kim Simmons

    September 28, 2014 at 1:24 pm

    And your "choice' is to be an ignorant SOB.

  10. Kenny Claing

    September 28, 2014 at 10:38 pm

    Kim Simmons And your "choice" is to be nasty because you are Gay and have nothing intelligent to add. Pity

  11. Jerry Reiter

    September 29, 2014 at 2:58 am

    It is time for the Supreme Court to remember the basic rule: Justice delayed is justice denied.

  12. Ken Collins

    October 2, 2014 at 3:00 pm

    Kenny Claing This is a late comment that you will probably not see. I hope you do.

    Religion is relevant in this way: You have the right to the free exercise of your religion, but the other people have the right to the free exercise of their religion, too. If you have a religious conviction that you should not eat pork, you must not eat a ham sandwich. However, since other people have the freedom of their religion, they can eat all the ham sandwiches they like. You also have the freedom to let your religion govern your marriage, but other people have the same freedom.

    Your marriage doesn't affect theirs, and theirs does not affect yours. No one has come up with a legal argument that consistently convinces judges that banning marriage A improves marriage B. If you come up with one, call the defense lawyers and explain it to them.

    The constitution was written by the same people who rebelled against the Christian king who had the divine right to rule them.

  13. Ken Collins

    October 2, 2014 at 3:08 pm

    Kenny Claing The only agenda I have is a list of groceries. I'm just quoting the judges. I've downloaded their findings and read them. They say there is irreparable harm. I observe that if the judges believe themselves and are right, the stays are inflicting more harm.

  14. Kenny Claing

    October 2, 2014 at 8:48 pm

    Ken Collins You don't understand what the question is. Whether same Genders can Marry. It is NOT in the Constitution that says, yes. Your (Gays) "dignity' or being "deprived" is the same as your "groceries", irrelevant to Marriage. Pity

  15. Ken Collins

    October 4, 2014 at 8:08 pm

    Kenny Claing It is not explicitly in the constitution that states have the right to regulate marriage either. The Tenth amendment says that whatever powers the federal government does not have go to the states OR TO THE PEOPLE. The constitution also says that the rights that are written down in the Constitution are not an exhaustive list. We have more. The fact that a right is not written down, constitutionally, does not mean we do not have that right. The Tenth amendment goes on to say that while states have the powers not given to the federal government, they cannot do anything that the constitution prohibits them from doing. The fourteenth amendment has that prohibition. "No state shall pass or enforce a law…" US citizens are entitled to the same equal rights and privileges everywhere in the country. The 14th amendment says no state can diminish the rights of an American citizen, and the full faith and credit clause says that states must recognize each other's legal acts.

    It is illegal for a state to diminish a married couple's rights when they cross a state line, and it is illegal for a state not to recognize legal marriages from other states.

    The first amendment says that citizens have the right to redress their grievances, which is meaningless if people could vote to deprive other people their rights. That, and lynch mobs, are illegal no matter how many people vote for it.

    Anyway, other people's marriages are other people's business, so I don't see why anyone even cares about same-sex marriage.

  16. Kenny Claing

    October 5, 2014 at 5:20 am

    Ken Collins You should have finished the wording…."which shall abridge the privileges or immunities of citizens…" Privileges or immunities deal with other events NOT Marriages. Powers NOT delegated to the States, is then retained by the Federal Govt. I say that it is Marriage that is still retained by the Feds. You just don't understand what is equal Rights, to equal individuals. Pity

  17. Ken Collins

    October 5, 2014 at 5:33 pm

    Kenny Claing First, I suggest you read the constitution. It's available on line. Second, the Supreme Court, over a period of nearly a century, has found 14 times that marriage is a right, one that cannot even be taken away as punishment for a crime. The Supreme Court also ruled that the right to marriage derives from the right to privacy, and there is nothing more private than choosing one's own spouse. Therefore state governments cannot regulate who marries whom.

    If marriage is a right, then it is included in the rights and privileges that are guaranteed to all Americans equally. A state cannot diminish the rights of an American citizen, so not recognizing other states' marriages is illegal; not recognizing marriages from other states violates the full faith and credit clause. That's what the judges have said.

    The text of the tenth amendment is that whatever power is not assigned to the federal government devolves to the states or the people, except if it is prohibited by the constitution. You have it backwards. The Tenth amendment is a single sentence and you can read it online.

  18. Kenny Claing

    October 5, 2014 at 10:28 pm

    Ken Collins Even Judges do not know how to interpret this sentence as you call it. I have read it many times and is right next to where I sit. You even use words not in that sentence. The right words are 'delegated' and 'reserved' . You should obtain a copy of it. "The powers not delegated to the States…" tells me that they do and still have the powers not delegated. And that is Marriage. It does not say that Marriage powers are given to the States, does it? No. Your interpretation is wishful thinking only. If it is illegal for SSM, the 'full faith and credit' clause is moot. Pity

Leave a Reply

Your email address will not be published. Required fields are marked *

homepage news

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

No political willpower to force vote or reach a compromise

Published

on

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.

Continue Reading

homepage news

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

Published

on

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.

Continue Reading

homepage news

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

Defendant implicated in three anti-LGBTQ incidents since 2011

Published

on

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.

Continue Reading
Advertisement
Advertisement

Follow Us @washblade

Sign Up for Blade eBlasts

Popular