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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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Words create worlds, so what kind of world do we want to live in?

Free speech comes with incredible responsibility

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It seems that each new day brings a fresh debate around speech and the weight of impact that speech holds. Back in October hundreds of Netflix employees staged a walkout protesting their company’s controversial Dave Chappelle stand-up special. At issue were a number of jokes aimed at the transgender community. The protest happened in response to Netflix CEO Ted Sarandos’ defense of the special, saying that “content doesn’t directly translate to real-world harm.” This statement could not be further from the truth. Not only do words carry impact and directly translate to real-world harm, words form our conception of the world and oftentimes what is seen as truth. The language we use and condone shapes how everything around us is perceived, which is why there is great responsibility in considering the words we use before we put them out into the world. 

We think about this every day at Reading Partners, an organization that places community volunteers in Title I elementary schools to support students in mastering reading skills. Because many of our volunteers do not share racial identity or a similar lived experience of the students we partner with, it is incredibly important to us that they understand that their role is to empower students who need a little extra support rather than coming to “help” or “save” them. The white-savior narrative has historically run rampant in spaces looking to mobilize volunteers for a cause and it is our responsibility to dismantle this narrative. This dismantling starts with the language we use and the stories we share about the communities we have the great privilege to partner with. Given that structural racism and oppression have created the current conditions facing under-resourced students, it is incumbent upon us that we recognize our role within the community and understand that we are here to act as a partner with students and their families whom have already created plans to address gaps in learning.

Because of the impact words yield, it is essential to carefully consider language choice, especially if it could affect marginalized and oppressed groups. Even those who have good intent, like journalists and public figures, often use outdated language and phrases that stigmatize communities or frame them through an othering lens. Some common examples of misguided language often used include phrases like “low-income students,” and “learning loss.” Both of these phrases place responsibility on students for the situation they are in despite the fact that students do not receive income, or have intentionally chosen to miss out on learning opportunities particularly with the disruptions that COVID-19 created. This type of framing has a direct corollary on how these students might be treated by teachers, administrators, and tutors, as well as how they are viewed by leaders, politicians and other people who hold power. It is therefore important that we use terms that accurately describe the situation, which may need to include political or historical context—so instead of “low-income students” we say, “historically under-resourced communities,” while a more accurate substitute for “learning loss” is actually “unfinished learning.” While these are subtle shifts in language, it completely reframes the situation, elucidating who shares responsibility for the current state of things and who does not.

It is also of note that the positive or negative connotations inherent in the language we use are hugely important to how we see those who may have different lived experiences than our own. At Reading Partners, we know that our students are not in fact “struggling” or “suffering from a lack of” something. We highlight our students as they are: “working hard,” “enduring,” “skill builders,” etc. despite growing up in a world where they have been denied access to high-quality literacy education. 

It is a fallacy that words cannot do harm. Language has served to dehumanize and subjugate people for as long as it has existed and it is often those in power who have the loudest voice. We as people, institutions, corporations, media, and otherwise must think through what we say and how it might impact others. Let’s be clear—this is not about censorship or ‘cancelling’ anyone. Language changes all of the time and it can be hard to keep up with. We are simply making the appeal that those in power, and with platforms, continue learning from and listening to those who have been harmed for centuries by systemic injustice. Free speech is a privilege, and with that privilege, there is incredible responsibility to utilize language that truly aligns with and demonstrates the user’s values.

Shukurat Adamoh-Faniyan is executive director of Reading Partners DC, a nonprofit that for more than 20 years has helped empower local students to succeed in reading and in life by engaging community volunteers to provide one-on-one tutoring. If you’re interested in learning more and becoming a volunteer visit readingpartners.org/volunteer-washington-dc.

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Why are gays so terrible at intergenerational friendships?

D.C. should create buddy program for elders

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Let me just start with a question. How many friends outside of your generation do you have? I mean honest-to-god friends. In my friend group, as large and fungible as that can be in the District and in the age of social media, it’s sort of me and a few other Gen Xers, and then just loads of Millennials. They do look to me to pass down some knowledge, but it’s mainly to do with the ins and outs of mortgages and things like that. 

But is it me? Or are gays just really, really terrible at having intergenerational friends? It’s striking. I’ve recently developed a friendship with — let’s call him — Bill. He’s almost 80. Maybe it’s the historian in me, but I just love the stories. But more on that later. For now, to ask another question, just why are gays bad at having friends removed from their respective generations? 

On social media this week I posted an obituary from a Houston paper dating from 1978. It was obviously from a gay man. You can tell from the coded language, “long time resident of this city despite stays on the West Coast.” And if that didn’t give it away, it ended with this rather heartbreaking language, “his parents requested that his friends not attend the memorial services!” Bill told me these sorts of obituaries — terribly vague but also cruelly pointed — were quite common in the dark days of AIDS. And this is succinctly why I think gays are so bad at having intergenerational friends, we’ve simply lost an entire generation of elders. And what was exactly lost with that generation is far more than can be enumerated in this column. 

Back to Bill’s stories for a second. There is a real value in oral histories, the telling and passing down of shared experiences make our culture certainly more valuable and rich, at the very least far more interesting. And again, this is nothing new, as cultures across the globe seek to capture personal stories and first-hand viewpoints of history unfolding. But it’s not just the story itself that’s important. It’s also the perspective and opinions. These remain nuanced between generations. Again, that’s really not saying anything new. But these varied opinions and outlooks, if not shared and debated risk isolating gay men into rigid and unchanging views crafted in echo chambers. 

Also, gays place a large premium on youth. And this, again, is nothing new, nor particularly gay. We just like what we like. But as Bill told me, he’s rather annoyed that any interest he expresses in a younger man is automatically filed under lecherous behavior. Let me just deal with this right here: We all, no matter the age, display to varying degrees lecherous behavior. Just get us a little dehydrated, a little tipsy, and throw us on the sand of Poodle Beach and watch the unwanted flirting unfold. So. But still we have to do better than mistaking anyone displaying interested in us as a simple sexual advance. That seems rather juvenile.  

With contact between our generations low, we are in danger of passing down a culture to future queer Americans that might seem a little lopsided and even a bit, well, shallow. But what’s to be done? I’ve commented in past columns on how we’re failing older LGBTQ Americans, especially in the District. To remedy this, we should use what I call the Chicago model and what is being done at the Center on Halsted, the city’s LGBTQ community center. The Center offers numerous programs geared to the city’s LGBTQ senior population. But one that sticks out is a sort of a buddy program, pairing seniors, even those in care facilities, with younger friends. This would certainly help us here in the District better care for our LGBTQ seniors, and would also of course help with the bridging of our considerable generational divide. So perhaps we could reproduce this here in the District. 

For now, I’ll continue to buddy up and enjoy my time with Bill. 

Brock Thompson is a D.C.-based writer. He contributes regularly to the Blade.

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Texas synagogue attack a reminder to fight anti-Semitism

Supporting Jewish community after latest tragedy

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Congregation Beth Israel (Screen capture via ABC News YouTube)

It was an all-too-familiar moment. A relaxed Saturday afternoon. Until an alert flashed on my screen. A gunman had taken hostages at a synagogue, Congregation Beth Israel, in Colleyville, Texas, a suburb of Dallas. He’d gone into the synagogue during Sabbath services.

It was an hours-long ordeal for the rabbi and three members of the congregation who were held hostage. The police intervened. The hostages emerged safely after 11 hours. The gunman, Malik Faisal Akram, died.

Like so many hearing this news, I was horrified, saddened, frightened, and shocked, but not surprised.

The hostage-taking at the Texas synagogue is part of a pattern of rising anti-Semitism. The Anti-Defamation League has tracked a rise in anti-Semitism in the United States in recent years – from the 2017 “Unite the Right” rally in Charlottesville, Va., where marchers threw Nazi salutes to the 2018 Tree of Life synagogue shooting that killed 11 people in Pittsburgh.

I don’t want to draw a false equivalency. Homophobia, biphobia and transphobia aren’t the same as anti-Semitism. But there are parallels. As I heard about the terrifying attack on the Texas synagogue, I remembered how frightened, enraged and sad we felt in 2016 when 49 LGBTQ people were killed in the Pulse nightclub massacre and how traumatized our community was by this attack.

As I write, much remains unknown about the hostage attack on the Colleyville synagogue. Authorities in the United Kingdom and the FBI are still investigating the situation.

Akram, the attacker at the Texas synagogue, came from Blackburn, England. In 2020, MI5 the U.K.’s counterintelligence and security agency, had investigated Akram, the BBC reported. The agency kept him on a watch list as a “subject of interest,” but determined that he wasn’t a “threat.” The FBI is investigating the hostage-taking at the synagogue as terrorism, the Washington Post reported. The authorities don’t know how Akram was allowed to get to Dallas or to buy a gun.

During the attack, Akram referred to Aafia Siddiqui, an American-educated woman known as “Lady al-Qaeda” and convicted of terrorism. Siddiqui is in a federal prison in Fort Worth for trying to kill U.S. soldiers, the Post reported.

Akram’s brother, Gulbar Akram, told media outlets and authorities that Akram had a mental illness.

Though the attacker’s motive still isn’t known, it’s clear that the Texas synagogue wasn’t randomly targeted, experts say. “It wasn’t a government office. It wasn’t another house of worship by a different faith community,” Holly Huffnagle, the American Jewish Committee’s U.S. Director for Combating Antisemitism, told NPR’s “Morning Edition.” “It was targeting Jews.”

Why should the LGBTQ community care about the attack on the Texas synagogue and the rise of anti-Semitism?

First, of course, because of the Jews in our community.

Those of us who are Jewish and LGBTQ know the double-whammy of encountering anti-Semitism along with homophobia, biphobia and/or transphobia. We run up against this prejudice in everything from slurs to stereotypes to violence.

Those of us who aren’t Jewish don’t know what anti-Semitism is like, though we may have Jewish family members or spouses who have experienced anti-Semitism. But because we’re LGBTQ, we have run into bigotry. We’ve been called names, discriminated against and wounded and killed by anti-queer violence.

Anti-Semitism and anti-queer bigotry aren’t identical, but I’d wager that many who are anti-Semitic are anti-queer.

“Then they came for the Jews,” wrote Martin Niemoller, a Christian pastor who resisted the Nazis in Hitler’s Germany in a poem, “And I did not speak out/Because I was not a Jew/Then they came for me/And there was no one left/To speak out for me.”

Our community needs to look within itself. We should work to expunge any anti-Semitism in our midst. 

Anti-Semitism has been a scourge for centuries. Combating it isn’t easy. But, let’s do all we can to support the Jewish community and to fight anti-Semitism.

Kathi Wolfe, a writer and a poet, is a regular contributor to the Blade.

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