Opinions
Supreme Court considers taking marriage cases
‘We are better people than what these laws represent’
(Washington Blade file photo by Michael Key)
The United States Supreme Court is scheduled to discuss seven petitions from five different states today urging the Court to decide the constitutionality of state laws excluding same-sex couples from marriage on a nationwide basis. The Supreme Court has complete discretion over whether or not to take a case. And no one knows if the Court will decide whether to take any of the cases at this time or defer its decision until a future conference this fall. Indeed, the Court will have a lot to cover at its first conference with 53 petitions in other cases on its schedule as well. However, we could learn possibly as early as Tuesday whether the Court will take up the issue of the freedom to marry nationwide this term, with a substantive, definitive decision likely in June 2015.
The momentum toward marriage equality in the courts has accelerated at breakneck speed in the just over a year since the Supreme Court’s landmark decision in United States v. Windsor invalidated Section 3 of the misnamed “Defense of Marriage Act,” a statute that prohibited the federal government from recognizing the marriages of same-sex couples validly performed in states with marriage equality. Since Windsor, 27 federal courts have found state bans to be unconstitutional, with only one lower federal court upholding such a ban. Significantly, all four federal appellate decisions, from which the seven petitions to the Supreme Court come, favor equality. Judges ruling for the freedom to marry include appointees of Presidents Carter, Reagan, G.H.W. Bush, Clinton, G.W. Bush and Obama. Federal District Judge Richard Young of Indiana described in his ruling the winning streak as a phenomenon “never” before “witnessed … throughout the federal court system ….” Similarly, 13 state courts have ruled in favor of marriage equality, with only one opposed.
The petitions before the Supreme Court arise out of federal appeals court decisions striking down five states’ marriage bans: Indiana (7th Circuit), Oklahoma (10th Circuit), Utah (10th Circuit), Virginia (4th Circuit), and Wisconsin (7th Circuit). All of the cases present the issue of whether or not a state may prohibit same-sex couples from marrying. However, the cases differ as well, and the justices likely will be considering these differences in determining which case or cases to take. Attorneys for same-sex couples in each of the cases have argued the particular circumstances of their individual cases make them desirable for review.
One difference in the cases is that the Oklahoma case raises only the issue of whether a state may ban same-sex couples from marrying under its state laws, while the other states’ cases also involve challenges to whether a state must recognize the marriages of same-sex couples validly married in other states. If the Supreme Court were to strike down state marriage bans nationwide, the Court would not need to decide if and when one state must recognize marriages performed in other states. Alternatively, if the Court declined to decide the issue nationwide or upheld state marriage bans, the issue of recognition of out of state marriages could be very important.
The various states’ laws at issue in the petitions also differ. For instance, Wisconsin permits same-sex couples to enter into domestic partnerships, affording them limited legal rights, while the other states with petitions before the Court do not. The wording of the marriage bans and the history of the political campaigns to pass them vary from state to state. Procedural histories of the cases differ as well. For instance, in Virginia, the Attorney General, representing the state defendant agrees that the ban is unconstitutional, and local county clerks are defending the state ban. In the other states, the state has uniformly defended the bans. The attorneys in each case differ, too, and include lawyers from groups who have been advocating for LGBT equality for decades, such as the National Center for Lesbian Rights, Lambda Legal, Gay and Lesbian Advocates and Defenders, and the ALCU.
The legal bases for striking down the bans also differ between the various federal appellate decisions before the Court. The appellate courts in the Oklahoma, Utah, and Virginia cases invalidated those state bans on the grounds that that they violated same-sex couples’ “fundamental right to marry,” while the appellate court in the Indiana and Wisconsin cases struck down those states’ bans on the grounds that laws that discriminate on the basis of sexual orientation are entitled to elevated scrutiny under the Constitution. Windsor held that DOMA violated the Constitution’s guarantees of both liberty and equality. Both issues, and very possibly whether the bans constitute unlawful sex discrimination, will doubtlessly be argued before the Court regardless of which case or cases it takes. However, the Justices may consider the logic or rationale of one or more of the appellate court decisions particularly useful for review.
Two additional federal appellate circuits will likely weigh in this fall as well. The Sixth Circuit heard cases arising out of marriage bans in Kentucky, Michigan, Ohio, and Tennessee in early August, and the Ninth Circuit heard cases from Idaho and Nevada in early September. From relevant circuit court precedent and the questions and comments the judges made at oral argument, most observers believe the Ninth Circuit will very likely rule in favor of equality, but the outcome of the Sixth Circuit cases is much harder to predict.
In remarks last week at the University of Minnesota, Justice Ruth Bader Ginsburg fueled speculation that the Court might wait to determine whether or not to take a case until the Sixth Circuit rules. She stated that there would be “no need for [the Supreme Court] to rush” if the Sixth Circuit ruled in favor of the freedom to marry, as all the other circuits who have addressed the issue since Windsor have. However, she said that a Sixth Circuit ruling against equality would create “some urgency” for the Court to step in. The Supreme Court often takes cases to resolve disputes among the circuits.
Further, the Supreme Court will take a case if four of the nine justices vote to hear it. The Supreme Court has stayed decisions in the Fourth, Seventh, and Tenth Circuits from taking effect until final resolution of the cases. If the Sixth and Ninth Circuits were also to rule in favor of equality, most observers believe it unlikely that the four justices who dissented in Windsor would simply let all the petitions be dismissed by voting to deny review — effectively permitting marriage equality in 20 additional states located in those circuits. But if the Supreme Court held the petitions until a circuit court ruled against the freedom to marry, many thousands of LGBT Americans could have to wait even longer for a decision. Regardless of how the Sixth Circuit rules, the issue of marriage equality is, in fact, “urgent,” for LGBT Americans, many of whom have been together for decades without legal recognition and protection.
Many of us would love to be a proverbial “fly on the wall” at the justices’ conference chamber, but we will of course have to wait until the Court makes public its decisions from the conference either later this week or on Oct. 6, the official beginning of the new term. Federal District Judge John E. Jones III, a George W. Bush appointee, wrote in his opinion, invalidating Pennsylvania’s marriage ban: “We are better people than what these laws represent, and it is time to discard them into the ash heap of history.” That time cannot come too soon.
John Lewis is legal and policy director for Marriage Equality USA.
Opinions
WorldPride begins — let’s hope it ends well
D.C. events kick off despite boycotts, Trump attacks
As WorldPride begins with Trans Pride on May 17,, we can only hope when it is over on June 9t we will all be raving about its success.
When D.C. first got designated as host city in November 2022, after Taiwan didn’t work out, there were initial estimates of 2.5 to 3 million people showing up in D.C. to party and celebrate. We talked about this 50th anniversary of Pride as celebrating five decades of advocacy, visibility, and unity, for the LGBTQ community in Washington, D.C., honoring the past, celebrating the present, and inspiring the future.
Anticipation was greatly tempered when Trump, the felon, racist, anti-trans homophobe, liar, and all-around SOB, won the election in November 2024. Then the planning became more difficult and stressful. But here we are and the excitement is palpable. The signs are up around D.C. and Mayor Muriel Bowser, who has been so great for the LGBTQ community, is walking a tightrope to keep D.C. afloat, never knowing what the felon in the White House will do next. To her credit, she is doing an amazing job keeping him at bay. But his vicious anti-trans positions, and his general homophobia, have put a cloud over WorldPride. His immigration policies have led countries around the world to tell their citizens to be very wary if they come to the United States. It is projected as foreign tourists stay away, the United States could lose $12.5 billion this year.
Despite all that, the people at Capital Pride Alliance, who are running WorldPride, have done a commendable job of putting together a program for everyone. From the Human Rights Conference, to the parade, to the festival, where Cynthia Erivo will perform. Shakira will be doing the opening concert at Nat’s stadium, and there are more superstars at the dance party at the RFK site, that should be the site of the new Commanders domed stadium by 2030.
But let us never forget all this is taking place at a time when the United States has a president who is creating havoc in the world and embarrassing us even among our allies. He is a liar and a grifter, a man who thinks nothing of putting people’s lives in danger whether it is sending people illegally to prisons in El Salvador, or creating a culture so nasty, a trans person takes their life in their hands just walking down the street.
He surrounds himself with people like Stephen Miller who wants to suspend habeas corpus, and his Nazi sympathizing co-president, Elon Musk, who just got Trump to invite a bunch of racist South Africans to move here. It’s going on while we have a Secretary of HHS, RFK, Jr., who takes his grandchildren swimming in a polluted creek, and tells others to risk their children’s lives by avoiding vaccines. A president who has cut $800 million in grants from NIH meant to do research to save lives in the LGBTQ community, along with cutting grants and programs that have worked successfully to save people in Africa from dying of HIV/AIDS, malaria, and polio. This is what we are dealing with. Like it or not, this is the backdrop to WorldPride 2025.
Yet, if we give in to this horror, we make it even worse. WorldPride is a way we say to people here in the United States, and those around the world, we in the LGBTQ community are never going back into the closet. We are proud, we are smart, and we are valuable. We make the world a better place, and we will continue to do so despite the pig who occasionally sits in the Oval Office when he is not out golfing or grifting. We can never allow the gay Republicans who make excuses for him, the gay Secretary of the Treasury who has yet to speak out for his community, to go unchallenged. Their silence hurts us as much as the felon sitting in the Oval Office because as the Blade wrote, they are traitors. It is unfortunate, but once again the slogan silence = death has never been more real.
So, speak up, speak out, never stay quiet. Let the world know you are here, and you care. Your life is important and fuck them if they don’t understand that or value it.
Peter Rosenstein is a longtime LGBTQ rights and Democratic Party activist.
Opinions
Let love and compassion guide our response to Joe Biden’s cancer diagnosis
Former president is diminished, but he and family deserve love and prayers
When I heard Joe Biden had serious prostate cancer, I felt immediate compassion for him and his family. I am a prostate cancer survivor myself. Then I heard how Trump, and some of his MAGA Republicans, responded and was amazed at how they are able to constantly sink to new lows. Trump’s son posted on X “What I want to know is how did Dr. Jill Biden miss stage five metastatic cancer or is this yet another cover-up???” Clearly, they will never give up on being vile human beings.
The equally disgusting Joe Scarborough had on a doctor who declared he positively knows Biden must have known about his cancer years ago, although he knows nothing about the case. The reality, coming from many specialists, is at this time only Biden’s doctors know when he was diagnosed, and whether he even had regular PSA tests done, and when. Based on the latest research, the American Urological Association (AUA) age guidelines are that they do not recommend routine PSA screening for men 70 or older. This is because prostate cancer is normally very slow growing, and if you were to be diagnosed after 70, you will likely die of something else. Then you had the felon in the White House talking about “stage nine” cancer. Is he really so dumb? Guess he is as he tries to prove it nearly every time he opens his mouth. Talk about diminished.
Now is Biden diminished from what he was years ago? It is clear he is. Should the people around him have tried to hide that in order to have him run again, no! But the-then president’s hiding health issues is nothing new. Wilson was severely impaired and it is said his wife Edith ran the country for his last year in office. The same was said about Nancy Reagan when they hid Reagan’s Alzheimer’s. Kennedy hid his Addison’s disease and other infirmities, and Trump hid how sick he was from COVID, when being helicoptered to the hospital. Is it wrong to hide these things from the American public, yes, but clearly not unusual. Actually, the media is often complicit in this, which many said they were in Biden’s case. Then you have a guy like Jake Tapper who is happy to be complicit, so he can now write a book about it and make loads of money. Very sad.
I think the time has come in the case of Joe Biden, for us to just offer him and his family some love and prayers, and the hope he will be able to manage his cancer and live a long life. Then turn the page and deal with the things that will matter more to the lives of the American people today.
Those are the things the felon in the White House, and his Nazi sympathizing co-president, along with the MAGA Congress, are trying to do to them. Things like taking away their healthcare, and thereby also causing the closure of some rural hospitals. Things like the mass firings of federal workers, including thousands of veterans. Things like making it harder for our veterans to access their healthcare by cutting services at the Veterans hospitals. Things like increasing costs for groceries, and other items, due to the felon’s ineffective use of tariffs. Things like seeing college costs go up, as foreign students who pay the full fare at most schools, are sent home or denied visas. Things like making it harder to file for social security by closing so many offices, and pretending to lower drug prices, but not really doing it. Things like cutting research looking for cures for cancer, Alzheimer’s, MS, HIV/AIDS, and a host of other diseases, which will hurt people for decades to come. Things like creating havoc in the world, and bowing down to dictators. Things like walking away from our allies and making the world a less safe place for all of us, including abandoning Ukraine, and cozying up to his friend Putin. I always believed Putin has some dirt on him. Trump said Zelenskyy would be responsible for WW III. But it’s Trump who will be, if it happens. Then we must put a focus on the idiot who is secretary of HHS, RFK Jr., and whether he will allow the flu and covid vaccines, being readied for the fall, to be available in a timely manner. Will he continue to disparage all vaccines, and by doing so, cause deaths here, and around the world. Things like abandoning the fight against climate change and thereby screwing the planet and future generations.
These are the things the American public really needs to know about, and care about. It may have been wrong to hide Biden’s being diminished, but he is no longer in office, and he no longer impacts people’s lives on a daily basis. The felon in the WH does, and that is where the focus must be.
A first generation American from Queens, N.Y., Kameny was a decorated WWII veteran. With a prodigious 148 I.Q., he earned a Ph.D. in astronomy from Harvard University. In 1957 he was recruited by the Army Map Service, a pioneering agency in space exploration.
In 1953 in the wake of McCarthyism, President Eisenhower issued Executive Order 10450 that prohibited homosexuals from military or civilian employment. Having nothing to do with workplace conduct, the Army learned that Kameny might be a homosexual. When confronted, he equivocated and was terminated. Unlike then thousands of other homosexuals terminated from government employment, Kameny fought back.
He took on the military and Civil Service Commission including being the first openly gay man to file an appeal about gay rights to the U.S. Supreme Court. He helped co-found and chair the Mattachine Society of Washington, the first gay rights organization in the nation’s capital.
He wrote letters to, among others, FBI Director J. Edgar Hoover. He founded and chaired the Eastern Conference of Homophile Organization, the nation’s first regional gay organization.
In the 1960s homosexuality, even with a consenting adult in the privacy of one’s bedroom was criminal. The police entrapped and extorted gay men. The American Psychiatric Association classified homosexuality as a mental illness. A bar could lose its license if there was more than one homosexual in their establishment. Homosexuals were considered dangerous, deviant and demented.
Kameny coined the phrase “Gay Is Good.” He organized picketing called Annual Reminders each July 4 from 1965 to 1969 at Independence Hall. The picketers were the first to call for gay equality. The 1965 Annual Reminder had 39 activists making it then the largest demonstration for gay rights. In the mid-1960s the country had an estimated 300 gay and lesbian activists.
He published a newsletter that became the Washington Blade, now the nation’s oldest LGBTQ weekly newspaper. Kameny and Barbara Gittings, the mother of the movement that demonstrated for the right to be heard at the 1971 American Psychiatric Association meeting. Their panel at the 1972 meeting with a masked psychiatrist using a pseudonym and voice modulator was so impactful that the APA created a panel to determine if homosexuality as a mental illness was based on science or discrimination. In 1973, that classification was removed.
He advised gays and lesbians who were the subject of discharge from federal government service. He identified test cases and referred them to the ACLU, Lambda Legal and other counsel. Slowly, but surely those cases began a process for LGBTQ equality.
His efforts led D.C. to be the first city to overturn its sodomy criminal laws. He helped found the first national LGBTQ organization, the North American Conference of Homophile Organizations. His efforts laid the groundwork for HRC and National LGBTQ Task Force.
After Stonewall in June 1969, he chaired a meeting of NY, Philadelphia and D.C. activists that authorized and helped organize to help remember Stonewall the first New York Pride Parade. He believed that Stonewall could be the movement’s Boston Tea Party. He marched in that 1970 parade holding a picket emblazoned with “Gay Is Good.”
He was the first out person to run for Congress as the D.C. delegate. Money left over from his campaign was used to fund the first gay rights television commercial. In July 1975, he was the first to be advised by the Civil Service Commission that it would eliminate homosexuality as a basis for not hiring or for firing a federal civilian employee. In 1977, he attended the White House’s first meeting with gays and lesbians.
Kameny died on Oct. 11, 2011, National Coming Out Day. He lived to see marriage equality approved in several states. He attended the signing by President Obama of the repeal of “Don’t Ask, Don’t Tell,” which enabled gays and lesbians to serve openly in the military. Kameny is buried in the Congressional Cemetery. On his tombstone is inscribed “Gay Is Good.” Over 70,000 of his documents are in the Library of Congress and picket signs from the pioneering demonstrations are housed in the Smithsonian Institution.
On May 21 LGBTQ national organizations gather in front of the Supreme Court. One hundred activists will each hold a candle for his 100th birthday. Fifteen national leaders will engage in picketing similar to the 1965 picketing at the White House and Independence Hall. They will honor Frank Kameny; celebrate the 10th anniversary of marriage equality (Obergefell v Hodges, 2015); and push back on those who would attempt to render us invisible, deny our history and undermine our equality. We will remember the nation’s loss when it fired a Harvard Ph.D. in astronomy because of his status as a homosexual. History repeats itself. This month the U.S. Supreme Court allowed the federal government to terminate transgender servicemembers solely because of their sexual orientation. How far we have come. How much farther we have to travel.
Malcolm Lazin is the national chair, Kameny 100. He is the executive director, LGBT History Month and executive producer of three LGBTQ documentaries including Gay Pioneers. He was an adjunct professor of LGBT History and Rights at New College of Florida. www.kameny100.org.
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