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Supreme Court considers taking marriage cases

‘We are better people than what these laws represent’

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(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.

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Opinions

Barney Frank, a hero of mine

There’s never been a stronger, smarter LGBTQ advocate in Congress

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Barney Frank in 1985. (Washington Blade archive photo by Doug Hinckle)

Barney Frank has always been a hero of mine. We grew up in similar circumstances, he in New Jersey, me in upper Manhattan. Both of us knew at a young age we were gay, though that was not a term used when we were young. It was a time when one definitely couldn’t come ‘out’ if you wanted to go into politics. 

I met Barney when a mutual friend brought him to brunch at my home in D.C. I had moved to D.C. in 1978 to work for the Carter administration, directing the follow-up to the White House Conference on Handicapped Individuals. That is the term we used back then. I never went back to New York. Barney had been elected to Congress when we met. Neither one of us was publicly out. 

Barney Frank is brilliant, and I was honored to meet him. I always enjoy listening to him speak, whether it was at a congressional hearing, or an event we were both attending. Barney was never one for small talk. When we both ended up living in Dupont, he would see me sitting at a coffee shop when he walked by, and simply nod hello, not stopping to chat. If he ever did stop, I always knew it was to suggest something I should be doing, or writing about. Barney has a sparkling wit, when he wants to share it, and knows more about most topics than anyone else. In 2004, 2006, 2008, and 2010, Washingtonian magazine reported that congressional staffers named him the brainiest member of Congress. CBS News reported in 2008 and 2011 that Leslie Stahl and others, referred to him as the smartest guy in Congress. They were right. I had worked for another brilliant member of Congress, Bella S. Abzug (D-N.Y.), but she was out of Congress by the time Barney got there. It would have been fun seeing them work together. I was working for her when she introduced the first Equality Act in 1974. At the time I was deeply closeted.

I ended up coming out in 1984, which was before Barney did. But then I wasn’t running for office. He came out in 1987 and became an even more passionate supporter of the LGBTQ community than he was before. Because now he could make his speeches, and support, more personal. He spoke eloquently trying to pass the Equality Act which didn’t pass the House until after he retired, and then it died in the Senate. I was, and am, a passionate supporter of the Equality Act, and still believe in my lifetime it will pass Congress, and we will have a president who will sign it into law. Hope springs eternal as they say.

Barney is more than just an LGBTQ advocate. He has worked tirelessly on so many issues, in his effort to make life better for all Americans. He recently said the bill he is proudest of, is the Dodd-Frank Wall Street Reform and Consumer Protection Act. It is a sweeping law enacted to overhaul financial regulation following the 2008 financial crisis. Its primary purpose was to end ‘Too big to fail’ bailouts, and protect consumers from abusive financial practices. It was signed into law by President Obama in 2010. 

As it has become public that Barney Frank was entering home hospice, and being cared for by his husband Jim, so many of us are looking back at his amazing career. We are recognizing the giant he is, both during his time in Congress, and during his life before, and after. He is the first member of the LGBTQ community who married while in Congress. He is one of the people in our community who really made a difference, and in doing so made so many of our lives better. 

Barney has said he is in the process of writing another book on politics, and I already look forward to reading it. I keep visualizing Barney as our community’s Art Buchwald. Those of you who are old enough may remember Buchwald. He was an American humorist, best known for his columns in the Washington Post. He also went into hospice care. But in his case, after five months there, and giving many interviews, he left hospice and wrote another book. It was titled ‘Too Soon to Say Goodbye’ about his five months in hospice. Barney, I am praying I will get to hear you, and see you, on that next book tour. 

But if that shouldn’t be, I want to thank you for a life well lived, and all you have done to make my life, the lives of the rest of us in the LGBTQ community, better. We could have never asked for a stronger, or more passionate, advocate.

Peter Rosenstein is a longtime LGBTQ rights and Democratic Party activist.

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How do you vote a child out of their future?

Students reportedly expelled from Eswatini schools over alleged same-sex relationships

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(Photo by Vladgrin via Bigstock)

There is something deeply unsettling about a society that turns a child’s future into a public referendum. In Eswatini, there were reports that students were expelled from school over alleged same-sex relationships, and that parents were invited to vote on whether those children should remain, forcing us to confront a difficult question on when did education stop being a right and become a favor granted by collective approval? Because this is a non-neutral vote.

A vote reflects power, prejudice and personal beliefs, which are often linked to tradition, culture, politics and religion. It is shaped by fear, by stigma, by long-standing narratives about morality and belonging. To ask parents, many of whom may already hold hostile views about LGBTIQ+ people, to decide the fate of children is not consultation. It is deferring the responsibility and repercussion. It is placing the lives of young people in the hands of those most likely to deny them protection.

And where is the law in all of this?

The Kingdom of Eswatini is not operating in a vacuum. It has a constitution that guarantees the promotion and protection of fundamental rights, including equality before the law, equal protection of the laws, and the right to dignity. The constitution further goes on to protect the rights of the child, including that a child shall not be subjected to abuse, torture or other cruel, inhuman and degrading treatment or punishment.  

The Children’s Protection and Welfare Act of 2012 extends the constitution and international human rights instruments, standards and protocols on the protection, welfare, care and maintenance of children in Eswatini. The Children’s Protection and Welfare Act of 2012 promotes nondiscrimination of any child in Eswatini and says that every child must have psychosocial and mental well-being and be protected from any form of harm. The acts of this very instance place the six students prone to harm and violence. The expulsion goes against one of the mandates of this act, which stipulates that access to education is fundamental to development, therefore, taking students out of school and denying them education contradicts the law.  

Eswatini is a signatory to the United Nations Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child. These are not just commitments made to make our governments look good and appeasing. They are obligations. The Convention on the Rights of the Child is clear regarding all actions concerning children. The best interests of the child MUST be a primary consideration and NOT secondary one. According to the CRC, as indicated in the Declaration of the Rights of the Child, “the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth.” It is not something to be weighed against public discomfort and popularity.

The African Charter on the Rights and Welfare of the Child reinforces this, grounding rights in non-discrimination (Article 3), privacy (Article 10) and protection from all forms of torture (Article 16). Access to education (Article 11) within these frameworks is not conditional but is a foundational right. It is not something that can be taken away because a child is perceived as falling outside social norms and threatening the moral fabric of society. It is a foundational right and determines one’s ability to participate in civic actions with dignity.

So again, where is the law when children are being expelled?

It is tempting to say the law is silent but that would be too generous. The law is not silent rather, it is being ignored and bypassed in favor of systems of decision-making that make those in power comfortable. When schools and their leadership defer to parental votes rather than legal standards, they are not acting neutrally. Expelling a child from school because of allegations is not a decision to be taken lightly. It disrupts education and limits future opportunities and for children already navigating identity and social pressure, this kind of exclusion can have profound psychological effects. It isolates them. It marks them for potential harm. Imagine being a child whose future is discussed in a room where people debate your worth. That is exposure. That is harm. There is a tendency to justify these actions in the language of culture, tradition, religion and protecting social cohesion. But culture is not static and the practice of Ubuntu values is not an excuse to violate rights. If anything, the principle of Ubuntu demands the opposite of what is happening here.

Ubuntu is not about conformity. It is about recognition and is the understanding that our humanity is bound up in one another. That we are diminished when others are excluded. That care, dignity, respect and compassion are not optional extras but central to how we exist together. Where, then, is Ubuntu in a school where some children are deemed unworthy of access to education?

Why are those entrusted with protecting children are failing to do so?

There is a very loud contradiction at play. On one hand, there is a claim to shared values and to the importance of community. On the other hand, there is a willingness to isolate and exclude those who do not fit within the narrow definition of what is acceptable. You cannot have both. A community that thrives on exclusion is neither cohesive nor safe.

It is worth asking why these decisions are being made in this way. Why not follow the established legal processes? Why not ensure that any disciplinary action within schools aligns with national and international obligations? Why introduce a vote at all? The answer is uncomfortable and lies in legitimacy and accountability. A vote creates the appearance of a collective agreement. But again, I reiterate, it distributes responsibility across many hands, making it hard to hold anyone accountable. It allows the school leadership to say “lesi sincumo sebantfu”(“This is what the community decided, not me”) rather than confronting their own role in human rights violations. If the law is clear and rights, responsibilities and obligations are established, then the question is not what the community feels. The question is why those entrusted with protecting children are failing to do so.

There is also a deeper issue here about whose rights are seen as negotiable. When we talk about children, we often speak of care, of understanding, of protection and safeguarding them because they are the future. But that language becomes selective when it intersects with sexuality, particularly when it involves LGBTIQ+ identities. Suddenly, care, understanding, protection, and safeguarding give way to punishment.

Easy decisions are not always just ones.

If the kingdom is serious about its commitments under its constitution, the Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child, then those commitments must be visible in practice, not just in policy documents. Rather, they must guide decision-making in schools and in communities. That means recognizing that a child’s right to education cannot be overridden by a show of hands. It means ensuring that schools remain spaces of inclusion rather than sites of moral policing. It means holding leaders and institutions accountable when they fail to protect those in their care.

Bradley Fortuin is a consultant at the Southern Africa Litigation Center and a human rights activist.

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Tennessee’s trans data bill a frightening omen

Information collected for ‘research’ can be repurposed for enforcement

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Tennessee State Capitol (Photo by SeanPavonePhoto/Bigstock)

Something important recently happened in Tennessee — and it demands far more scrutiny than it’s getting.

The Tennessee state House passed a bill — HB 754 — that requires clinics and insurers to report data on patients receiving gender-affirming care to the state. On paper, it is framed as a neutral effort: a way to “study trends,” “understand outcomes,” and bring clarity to a politically charged area of medicine. That is how its supporters describe it.

But laws are not judged solely by their stated intent. They are judged by their structure, their context, and the foreseeable ways they can be used.

And in structure and context alike, this bill edges dangerously close to something far more unsettling: a system of tracking a politically targeted minority.

The mechanics matter. Under the legislation, providers must submit detailed information about transgender patients — data that will ultimately be compiled into state reports and made public in aggregated form.

Supporters emphasize a key safeguard: the data is supposed to be “de-identified.” No names, no Social Security numbers. In theory, no direct link to any one individual.

But that reassurance collapses under even minimal scrutiny.

Because data does not need to contain a name to identify a person. In smaller communities—rural counties, tight-knit towns—granular data points like age, treatment type, and geography can easily narrow a dataset down to a handful of individuals. In some cases, to one.

Privacy experts have been warning about this problem for years. Re-identification is not a hypothetical risk — it is a well-documented reality. And when the dataset concerns a stigmatized population, the stakes are not abstract. They are personal, immediate, and potentially dangerous.

That is why critics of the bill are not calling it “data collection.” They are calling it what it resembles: a registry in all but name.

And history gives that word weight.

Governments have always justified registries as tools of order and knowledge. Lists of dissidents. Lists of immigrants. Lists of the sick, the criminal, the different. They begin as bureaucratic exercises — tidy, rational, even boring. Only later do we confront what those lists enable.

To be clear, HB 754 is not a list of names published online. It is not, at least yet, a direct catalogue of individuals. But the architecture it builds—centralized data collection on a specific, politically contested group—is the same architecture that makes such lists possible.

And that is where context becomes unavoidable.

This bill does not exist in isolation. It comes after years of escalating legislation targeting transgender people in Tennessee—from restrictions on healthcare to limits on public expression. The trajectory is not ambiguous. It is cumulative.

When a government repeatedly singles out a group for legal scrutiny, and then begins building systems to track that group—even indirectly—it crosses a conceptual line. It moves from regulating behavior to mapping people.

Supporters argue that none of this is the point. That the bill is about medical evidence, not identity. That policymakers need data to evaluate treatments.

But this argument collapses under its own selectivity.

If the true goal were neutral scientific inquiry, we would expect similarly aggressive data collection across other areas of medicine—cosmetic surgery, psychiatric medication, fertility treatments. We do not see that. The focus here is narrow, targeted, and politically charged.

That selectivity reveals something important: this is not just about healthcare. It is about governance—about which populations the state chooses to monitor, and why.

And once that monitoring infrastructure exists, its use is not fixed.

Data collected today for “research” can be repurposed tomorrow for enforcement, litigation, or exposure. Laws change. Administrations change. What remains is the dataset—and the precedent that it is acceptable to build it.

That is the real risk embedded in HB 754. Not necessarily what it does on day one, but what it normalizes over time.

It normalizes the idea that transgender people are a category to be tracked. It normalizes the idea that their private medical decisions are of special interest to the state. And perhaps most dangerously, it normalizes the idea that the boundary between public policy and personal identity can be quietly, bureaucratically eroded.

There is a tendency, especially among lawmakers, to view policy as modular—each bill evaluated in isolation, each provision defended on its own terms. But for the people living under those laws, the experience is cumulative. It is the pattern that matters.

And the pattern here is becoming harder to ignore.

A state that restricts your care, debates your existence, and then begins compiling data about you is not neutral. It is not merely studying you. It is defining you as a subject of governance.

That distinction—between citizen and subject—is subtle. But it is where the stakes of this bill ultimately lie.

Because once a government begins building lists—even partial, anonymized, “harmless” ones—it is no longer just making policy.

It is deciding who counts.


Isaac Amend is a writer based in the D.C. area. He is a transgender man and was featured in National Geographic’s ‘Gender Revolution’ documentary. He serves on the board of the LGBT Democrats of Virginia. Contact him on Instagram at @isaacamend

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