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Why did Supreme Court refuse to hear marriage?

Unanimity of circuit decisions, perceived lack of votes to overturn rulings among reasons cited

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Supreme Court of the United States, John Roberts, Ruth Bader Ginsburg, Antonin Scalia, gay news, Washington Blade
Supreme Court of the United States, John Roberts, Ruth Bader Ginsburg, Antonin Scalia, gay news, Washington Blade

From left, Chief Justice of the Supreme Court John Roberts, Associate Justice Ruth Bader Ginsburg and Associate Justice Antonin Scalia (Photos public domain)

The Supreme Court’s decision to deny certiorari on five marriage cases surprised many legal observers amid expectations that the justices would want to weigh in on the hot button national issue.

But maybe it shouldn’t have. In recent public comments, justices have dropped hints that a decision was made and they weren’t eager to take up the issue at this time because of unanimity thus far in favor of marriage equality at the circuit level.

Just last week, U.S. Associate Justice Antonin Scalia made headlines after a speech at the University of Colorado, teasing the crowd when asked when we’ll find out if the high court will take up marriage by saying, “I know when, but I’m not going to tell you. Soon! Soon!”

How could he declare with such certainty that he knew the answer for the timing? Because he knew at the Sept. 29 conference that a vote to grant certiorari had failed in each of the five marriage cases and orders announcing the petitions were denied were forthcoming from the court.

It takes an affirmative vote of four justices to grant certiorari (or decide to take up a case), but a petition is denied if that four-vote threshold isn’t met. The results of those votes aren’t public, nor was any explanation given, but that hasn’t stopped speculation about what motivated justices to turn down an opportunity to decide what many consider to be the case of the century.

A commonly cited reason for the Supreme Court’s decision to refrain from taking up the marriage issue is the unanimity of decisions striking down bans on same-sex marriage from the Fourth, Seventh and Tenth circuit courts of appeals.

Jon Davidson, legal director for Lambda Legal, during a conference call with reporters, pointed to wide consensus among the courts that bans on same-sex marriage are unconstitutional.

“It’s total speculation, but my speculation would be they decided that there was unanimity among the federal courts of appeal, and virtual unanimity among all the federal courts and almost all the state courts,” Davidson said. “Since the Windsor decision, it is clear that same-sex couples have a constitutional right to marry. There was therefore no need for them to step in at the moment.”

That would be consistent with well-publicized remarks that U.S. Associate Justice Ruth Bader Ginsburg made weeks ago at a Minnesota Law School in which she reportedly said there’s “no need for us to rush” to take up marriage unless the U.S. Sixth Circuit Court of Appeals issues a decision upholding bans on same-sex marriage, which would cause a split among the circuit courts.

Many presumed she meant the petitions would be on hold before the Supreme Court as more courts ruled on marriage, but as it turns out the court was about to determine same-sex couples would soon be able to wed in each of the states where federal appeals courts struck down marriage bans: Utah, Virginia, Oklahoma, Indiana and Wisconsin.

Doug NeJaime, a law professor at the University of California, Irvine, predicted that denial of certiorari from the Supreme Court would continue as long as circuit courts keep striking down bans on same-sex marriage.

“The court can allow this to keep moving forward without its intervention,” NeJaime said. “So long as decisions are going in the same direction, the court can wait to intervene until more states are in the marriage equality column.”

In the event that a future circuit court upholds bans on same-sex marriage — say the Sixth Circuit, or the more conservative U.S. Fifth Circuit Court of Appeals — it would be incumbent on the more liberal justices to find four votes to grant certiorari to reverse the decision, which should be easier than the other way around.

An additional factor explaining the denial of certiorari is the judicial philosophy of U.S. Chief Justice John Roberts, who has a perceived reluctance to engage in controversial issues. It’s widely assumed the court decided to hear the case challenging California’s Proposition 8 because the four most conservative justices — U.S. Associate Justices Samuel Alito, U.S. Associate Justice Clarence Thomas, Roberts and Scalia — decided to grant certiorari in the case.

Roberts wrote the majority opinion on Prop 8, which ducks the merits of the case and instead ruled defendants didn’t have standing in the lawsuit. If he only took up the case for that reason and otherwise believes the Supreme Court should stay out of lower court decisions against same-sex marriage, it could have broke up the necessary four votes needed to take up a marriage case in the first place.

A variation on this explanation is the four conservative justices on the court didn’t think they had the five votes to overturn a ruling in favor of same-sex marriage if the court considered a case. The swing vote on the court — U.S. Associate Justice Anthony Kennedy, who authored the decision against the Defense of Marriage Act — was presumably seen as a sure bet in favor of marriage equality.

Lambda’s Davidson elaborated on this possibility in the conference call with reporters.

“The four more conservative justices couldn’t count to five,” Davidson said. “They were not assured of a fifth vote, and so they didn’t want to grant review yet because that might allow there to be a decision that marriage equality is required across the country as soon as that case is decided.”

But one question that remains is why the Supreme Court decided to issue stays on same-sex marriages earlier in the year in Utah and more recently in Virginia if justices were going to refuse to hear the cases anyway. The presence of those stays was the biggest reason that legal experts assumed the Supreme Court intended to hear a marriage case.

Theodore Olson, co-counsel of the case that sought marriage in Virginia, was reluctant to speculate on why justices declined to hear the litigation, but told reporters the stays may have been enacted so the court could have more leeway to make a decision at a later time.

“I suspect that the Supreme Court granted a stay in the case, in all these cases initially so that it could consider whether or not it was going to hear the case and avoid the situation where if it had taken the case, it wanted to have the freedom to decide this one way or the other without the problem of people getting married, and then being exposed to the possibility that those marriages would somehow be upset by an adverse decision,” Olson said.

There are mixed views on what would happen to the states that now have marriage equality as a result of the denial certiorari in the event the court takes up a marriage case at later time, but determines bans on same-sex marriage are constitutional.

Some say same-sex marriages in those states would be allowed to continue; others say defendants in the case would have the option to move to halt the weddings, although couples that already wed would be allowed to stay married. Whatever the case, it’s hard to see how such a ruling would come down unless the makeup of the court changes in the immediate future.

Regardless of the explanation for why the Supreme Court denied certiorari, it made Oct. 6, 2014 a milestone moment in gay rights history and expanded marriage equality to five more states. The tally now stands at 24, and one can now drive from Richmond to Bangor without entering a state that bans gay marriage.

The decision also makes it likely that bans in other states in the Fourth and Tenth circuits — North Carolina, South Carolina, West Virginia, Colorado, Kansas and Wyoming — will soon fall. Once they go down, it would bring the number to 30.

Adam Romero, federal legal director for the Williams Institute at the University of California, Los Angeles, said justices knew the impact of what they doing when they denied certiorari whatever their reason for doing so.

“While the court did not provide its reasoning for denying review in these cases, I have no doubt that the justices were acutely aware of the effect — that denying review would clear the way for same-sex marriage to come to a number of states where it had been prohibited,” Romero said. “Perhaps also notable is that no justice issued a written dissent from the denial of cert or the lifting of the stays.”

And the number of same-sex marriage states will likely increase more now that courts are under additional guidance on handling the marriage issue. Additional circuit court decisions are expected soon from the U.S. Ninth Circuit Court of Appeals on bans in Idaho and Nevada and from the Sixth Circuit on bans in Michigan, Ohio, Kentucky and Tennessee.

Meanwhile, LGBT advocates continue to urge the Supreme Court to find an appropriate vehicle to deliver a nationwide ruling in favor of marriage rights.

James Esseks, director of the American Civil Liberties Union’s LGBT Project, told reporters the denial of certiorari is a “watershed moment” and it’s on par now with a ruling from the Supreme Court at a nationwide level in many respects.

“It means that we get equality on the ground for same-sex couples more quickly in a whole bunch of places and also sends a signal to all the other judges in all the other states that are out there of where the Supreme Court may well be on this issue,” Esseks said. “And I think that’s going to get us to marriage in all 50 states very quickly.”

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11 Comments

11 Comments

  1. Ken Collins

    October 7, 2014 at 1:12 pm

    The Supreme Court did not "pass" on marriage.

    The Supreme Court declined the appeals, which means they feel that the circuit courts' decisions so obviously proceed from the law and the facts that judicial review isn't necessary.

    The Supreme Court did not take an appeal and put it through a formal process of judicial review. If they had, their decision would be effective nationwide. However, they are probably circumspect of the blood lust among the busybodies who think that other people's marriages are their business.

    The Supreme Court had two ways to take action; they took the way that causes the least social disruption. If the Supreme Court had wanted to take a pass, they would have thrown the appeals into a stack for future action.

  2. Vincent Martin

    October 7, 2014 at 2:48 pm

    CAN I PLEASE POINT OUT THAT WHEN THE SUPREME COURT MAKES A RULING ITS NATION WIDE… BY THEM NOT MAKING A RULING THEY'RE ALLOWING STATES TO INDIVIDUALLY DECIDE THE MATTER AND VACATE THEIR FEDERAL PATERNALISTIC DUTY TO PREVENT STATES FROM VIOLATING THE CONSTITUTION OF THE UNITED STATES OF AMERICA

  3. Ray Taylor

    October 7, 2014 at 11:19 am

    “While the court did not provide its reasoning for denying review in these cases, I have no doubt that the justices were acutely aware of the effect — that denying review would clear the way for same-sex marriage to come to a number of states where it had been prohibited,” Romero said. “Perhaps also notable is that no justice issued a written dissent from the denial of cert or the lifting of the stays.”

    The Catholics appear to be following the teachings of the church and the Liberals took what they could.

    • Ken

      October 7, 2014 at 4:28 pm

      If the Catholic Church controls judges in the Supreme Court, it is the most egregious possible violation of our constitution and our sovereignty—especially since the Vatican is a foreign country according to the State Department and Catholic Churches fly the Vatican flag. The Catholic Church has no fewer and no more rights than the Unitarian Church, and neither the Vatican nor Venezuela nor any other foreign entity has the right to influence American government under the table.

  4. Ken Collins

    October 7, 2014 at 4:45 pm

    They are not letting states make decisions for themselves, they are letting the process go through the circuit courts for now. They have also put the circuit courts on notice that they do not believe the anti-marriage arguments are even worthy of court time.

    Declining an appeal takes effect immediately, gives plaintiffs immediate relief, and saves everyone the cost of going to court. Note that they took ALL of the appeals and declined ALL of them. The court is not going to disagree with itself, so the ultimate outcome is certain.

    If they took up the case, it would delay relief for the plaintiffs, and if they decide for the whole country too early, it will result in an explosion from marriage opponents and perhaps even assaults on gay married couples. However, in states where gay marriage is legalized, support or indifference grows and opposition ebbs. By doing it this way, the issue defuses itself and marriage opponents lose their supporters. In a few months, when the court makes its final decision, or declines so many appeals that the opponents of marriage give up, things will be calmer.

    Of course, an activists does not and should not settle for anything less than total victory; however, while we don't get instant gratification, we get the most benefit from this approach.

    • brians ions

      October 7, 2014 at 4:18 pm

      Thanks. That’s helpful, Ken. And if you’re entertaining questions — understanding that it’s all purely speculative, of course…
       
      (1) Which, if any, of the remaining ‘DOMA states’ are likely to be flipped via State Supreme Court ruling? When (roughly) might that happen?
       
      (2) We hear decisions by the 6th and 9th Circuits can come any day now. But what do the likely schedules of the remaining Circuits (5th, 8th, 11th) look like for M.E.?
      Which potential denial of SS plaintiff cases by a Circuit(s) are likely to trigger review by SCOTUS soon (i.e., before Jan ’15?– last time SCOTUS can grant review this term?).
       
      (3) Given SCOTUS’ Monday refusal to hear *ALL* the cases, are any of the Circuit Court decisions which strike down remaining state DOMAs (as is predicted for the 9th, e.g.) likely to result in NOMINAL (days) or NO stays of such decisions? In other words, are SS marriages likely to be permissible if a Circuit Court rules to strikes down state DOMAs going forward?
       
      Thanks again.

  5. Bob Boyd

    October 7, 2014 at 4:55 pm

    There's another way to look at the decision not to accept the 5 cases. Justice Roberts is well aware of the public's growing distrust of the court and the very bad PR the court has. So why would he want to act on something that could bring even more damage to the court's reputation? He does have the institution of the court to be concerned about after all. Would Justice Scalia, who has a healthy ego, want to have his own words in the Windsor case thrown back in his face during a hearing on the 5 cases? Not likely. And we all know/think Justice Thomas does what Scalia tells him to do and besides his wife works for an anti-gay group that could be awkward for him. Finally there's Justice Alito. He would just be outvoted so why press the issue? So on personal grounds, it's easy to count 8 or even 9 votes against hearing the cases. As Justice Ginsburg said, there's no rush for SCOTUS to act.

  6. David Benkof

    October 8, 2014 at 10:35 am

    Actually, this announcement is great news for queer people like me who support only man-woman marriage. http://dailycaller.com/2014/10/07/actually-the-court-just-undercut-gay-marriages-inevitability/

  7. Raymond D, Sawyer-Smith

    October 9, 2014 at 8:52 am

    David….if you exist…gay and self-loathing. Even Log Cabin GOP and GOProud fight for marriage equality. Quisling queers exist, just as some Jews supported the National Socialists in the 1932 elections. Voting against your own self interest is nothing new. Inasmuch as I know that some like you exist, I simply harbor the belief that you’re a troll looking for a reaction.

  8. EL Doardo

    October 9, 2014 at 8:05 pm

    If the court reverses the right to marriage equality, “Some say same-sex marriages in those states would be allowed to continue; others say defendants in the case would have the option to move to halt the weddings, although couples that already wed would be allowed to stay married. Whatever the case, it’s hard to see how such a ruling would come down unless the makeup of the court changes in the immediate future.”
    ==============================================================================
    I can’t see how courts could justify allowing some gay people to remain legally married while denying others that right in saying there is no constitutional right to marry. Looking at just the case of Romer V. Evans where the court struck down a Colorado law that targeted gay people, the ruling stated that laws cannot be applied to people differently or single out a group based on hatred of that group.

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

No political willpower to force vote or reach a compromise

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Despite having President Biden in the White House and Democratic majorities in both chambers of Congress, efforts to update federal civil rights laws to strengthen the prohibition on discrimination against LGBTQ people by passing the Equality Act are all but dead as opponents of the measure have contorted it beyond recognition.

Political willpower is lacking to find a compromise that would be acceptable to enough Republican senators to end a filibuster on the bill — a tall order in any event — nor is there the willpower to force a vote on the Equality Act as opponents stoke fears about transgender kids in sports and not even unanimity in the Democratic caucus in favor of the bill is present, stakeholders who spoke to the Blade on condition of anonymity said.

In fact, there are no imminent plans to hold a vote on the legislation even though Pride month is days away, which would be an opportune time for Congress to demonstrate solidarity with the LGBTQ community by holding a vote on the legislation.

If the Equality Act were to come up for a Senate vote in the next month, it would not have the support to pass. Continued assurances that bipartisan talks are continuing on the legislation have yielded no evidence of additional support, let alone the 10 Republicans needed to end a filibuster.

“I haven’t really heard an update either way, which is usually not good,” one Democratic insider said. “My understanding is that our side was entrenched in a no-compromise mindset and with [Sen. Joe] Manchin saying he didn’t like the bill, it doomed it this Congress. And the bullying of hundreds of trans athletes derailed our message and our arguments of why it was broadly needed.”

The only thing keeping the final nail from being hammered into the Equality Act’s coffin is the unwillingness of its supporters to admit defeat. Other stakeholders who spoke to the Blade continued to assert bipartisan talks are ongoing, strongly pushing back on any conclusion the legislation is dead.

Alphonso David, president of the Human Rights Campaign, said the Equality Act is “alive and well,” citing widespread public support he said includes “the majority of Democrats, Republicans and independents and a growing number of communities across the country engaging and mobilizing every day in support of the legislation.”

“They understand the urgent need to pass this bill and stand up for LGBTQ people across our country,” David added. “As we engage with elected officials, we have confidence that Congress will listen to the voices of their constituents and continue fighting for the Equality Act through the lengthy legislative process.  We will also continue our unprecedented campaign to grow the already-high public support for a popular bill that will save lives and make our country fairer and more equal for all. We will not stop until the Equality Act is passed.”

Sen. Jeff Merkley (D-Ore.), chief sponsor of the Equality Act in the Senate, also signaled through a spokesperson work continues on the legislation, refusing to give up on expectations the legislation would soon become law.

“Sen. Merkley and his staff are in active discussions with colleagues on both sides of the aisle to try to get this done,” McLennan said. “We definitely see it as a key priority that we expect to become law.”

A spokesperson Senate Majority Leader Charles Schumer (D-N.Y.), who had promised to force a vote on the Equality Act in the Senate on the day the U.S. House approved it earlier this year, pointed to a March 25 “Dear Colleague” letter in which he identified the Equality Act as one of several bills he’d bring up for a vote.

Despite any assurances, the hold up on the bill is apparent. Although the U.S. House approved the legislation earlier this year, the Senate Judiciary Committee hasn’t even reported out the bill yet to the floor in the aftermath of the first-ever Senate hearing on the bill in March. A Senate Judiciary Committee Democratic aide, however, disputed that inaction as evidence the Equality Act is dead in its tracks: “Bipartisan efforts on a path forward are ongoing.”

Democrats are quick to blame Republicans for inaction on the Equality Act, but with Manchin withholding his support for the legislation they can’t even count on the entirety of their caucus to vote “yes” if it came to the floor. Progressives continue to advocate an end to the filibuster to advance legislation Biden has promised as part of his agenda, but even if they were to overcome headwinds and dismantle the institution needing 60 votes to advance legislation, the Equality Act would likely not have majority support to win approval in the Senate with a 50-50 party split.

The office of Manchin, who has previously said he couldn’t support the Equality Act over concerns about public schools having to implement the transgender protections applying to sports and bathrooms, hasn’t responded to multiple requests this year from the Blade on the legislation and didn’t respond to a request to comment for this article.

Meanwhile, Sen. Susan Collins (R-Maine), who declined to co-sponsor the Equality Act this year after having signed onto the legislation in the previous Congress, insisted through a spokesperson talks are still happening across the aisle despite the appearances the legislation is dead.

“There continues to be bipartisan support for passing a law that protects the civil rights of Americans, regardless of their sexual orientation or gender identity,” said Annie Clark, a Collins spokesperson. “The Equality Act was a starting point for negotiations, and in its current form, it cannot pass. That’s why there are ongoing discussions among senators and stakeholders about a path forward.”

Let’s face it: Anti-LGBTQ forces have railroaded the debate by making the Equality Act about an end to women’s sports by allowing transgender athletes and danger to women in sex-segregated places like bathrooms and prisons. That doesn’t even get into resolving the issue on drawing the line between civil rights for LGBTQ people and religious freedom, which continues to be litigated in the courts as the U.S. Supreme Court is expected any day now to issue a ruling in Fulton v. City of Philadelphia to determine if foster care agencies can reject same-sex couples over religious objections.

For transgender Americans, who continue to report discrimination and violence at high rates, the absence of the Equality Act may be most keenly felt.

Mara Keisling, outgoing executive director of the National Center for Transgender Equality, disputed any notion the Equality Act is dead and insisted the legislation is “very much alive.”

“We remain optimistic despite misinformation from the opposition,” Keisling said. “NCTE and our movement partners are still working fruitfully on the Equality Act with senators. In fact, we are gaining momentum with all the field organizing we’re doing, like phone banking constituents to call their senators. Legislating takes time. Nothing ever gets through Congress quickly. We expect to see a vote during this Congress, and we are hopeful we can win.”

But one Democratic source said calls to members of Congress against the Equality Act, apparently coordinated by groups like the Heritage Foundation, have has outnumbered calls in favor of it by a substantial margin, with a particular emphasis on Manchin.

No stories are present in the media about same-sex couples being kicked out of a restaurant for holding hands or transgender people for using the restroom consistent with their gender identity, which would be perfectly legal in 25 states thanks to the patchwork of civil rights laws throughout the United States and inadequate protections under federal law.

Tyler Deaton, senior adviser for the American Unity Fund, which has bolstered the Republican-led Fairness for All Act as an alternative to the Equality Act, said he continues to believe the votes are present for a compromise form of the bill.

“I know for a fact there is a supermajority level of support in the Senate for a version of the Equality Act that is fully protective of both LGBTQ civil rights and religious freedom,” Deaton said. “There is interest on both sides of the aisle in getting something done this Congress.”

Deaton, however, didn’t respond to a follow-up inquiry on what evidence exists of agreeing on this compromise.

Biden has already missed the goal he campaigned on in the 2020 election to sign the Equality Act into law within his first 100 days in office. Although Biden renewed his call to pass the legislation in his speech to Congress last month, as things stand now that appears to be a goal he won’t realize for the remainder of this Congress.

Nor has the Biden administration made the Equality Act an issue for top officials within the administration as it pushes for an infrastructure package as a top priority. One Democratic insider said Louisa Terrell, legislative affairs director for the White House, delegated work on the Equality Act to a deputy as opposed to handling it herself.

To be sure, Biden has demonstrated support for the LGBTQ community through executive action at an unprecedented rate, signing an executive order on day one ordering federal agencies to implement the U.S. Supreme Court’s decision last year in Bostock v. Clayton County to the fullest extent possible and dismantling former President Trump’s transgender military ban. Biden also made historic LGBTQ appointments with the confirmation of Transportation Secretary Pete Buttigieg and Rachel Levine as assistant secretary of health.

A White House spokesperson insisted Biden’s team across the board remains committed to the Equality Act, pointing to his remarks to Congress.

“President Biden has urged Congress to get the Equality Act to his desk so he can sign it into law and provide long overdue civil rights protections to LGBTQ+ Americans, and he remains committed to seeing this legislation passed as quickly as possible,” the spokesperson said. “The White House and its entire legislative team remains in ongoing and close coordination with organizations, leaders, members of Congress, including the Equality Caucus, and staff to ensure we are working across the aisle to push the Equality Act forward.”

But at least in the near-term, that progress will fall short of fulfilling the promise of updating federal civil rights law with the Equality Act, which will mean LGBTQ people won’t be able to rely on those protections when faced with discrimination based on sexual orientation or gender identity.

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D.C. bill to ban LGBTQ panic defense delayed by Capitol security

Delivery of bill to Congress was held up due to protocols related to Jan. 6 riots

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New fencing around the Capitol following the Jan. 6 insurrection prevented some D.C. bills from being delivered to the Hill for a required congressional review. (Blade file photo by Michael K. Lavers)

A bill approved unanimously last December by the D.C. Council to ban the so-called LGBTQ panic defense has been delayed from taking effect as a city law because the fence installed around the U.S. Capitol following the Jan. 6 insurrection prevented the law from being delivered to Congress.

According to Eric Salmi, communications director for D.C. Council member Charles Allen (D-Ward 6), who guided the bill through the Council’s legislative process, all bills approved by the Council and signed by the D.C. mayor must be hand-delivered to Congress for a required congressional review.

“What happened was when the Capitol fence went up after the January insurrection, it created an issue where we physically could not deliver laws to Congress per the congressional review period,” Salmi told the Washington Blade.

Among the bills that could not immediately be delivered to Congress was the Bella Evangelista and Tony Hunter Panic Defense Prohibition and Hate Crimes Response Amendment Act of 2020, which was approved by the Council on a second and final vote on Dec. 15.

Between the time the bill was signed by Mayor Muriel Bowser and published in the D.C. Register under procedural requirements for all bills, it was not ready to be transmitted to Congress until Feb. 16, the Council’s legislative record for the bill shows.

Salmi said the impasse in delivering the bill to Congress due to the security fence prevented the bill from reaching Congress on that date and prevented the mandatory 60-day congressional review period for this bill from beginning at that time. He noted that most bills require a 30 legislative day review by Congress.

But the Evangelista-Hunter bill, named after a transgender woman and a gay man who died in violent attacks by perpetrators who attempted to use the trans and gay panic defense, includes a law enforcement related provision that under the city’s Home Rule Charter passed by Congress in the early 1970s requires a 60-day congressional review.

“There is a chance it goes into effect any day now, just given the timeline is close to being up,” Salmi said on Tuesday. “I don’t know the exact date it was delivered, but I do know the countdown is on,” said Salmi, who added, “I would expect any day now it should go into effect and there’s nothing stopping it other than an insurrection in January.”

If the delivery to Congress had not been delayed, the D.C. Council’s legislative office estimated the congressional review would have been completed by May 12.

A congressional source who spoke on condition of being identified only as a senior Democratic aide, said the holdup of D.C. bills because of the Capitol fence has been corrected.

“The House found an immediate workaround, when this issue first arose after the Jan. 6 insurrection,” the aide said.

“This is yet another reason why D.C. Council bills should not be subject to a congressional review period and why we need to grant D.C. statehood,” the aide said.

The aide added that while no disapproval resolution had been introduced in Congress to overturn the D.C. Evangelista-Hunter bill, House Democrats would have defeated such a resolution.

“House Democrats support D.C. home rule, statehood, and LGBTQ rights,” said the aide.

LGBTQ rights advocates have argued that a ban on using a gay or transgender panic defense in criminal trials is needed to prevent defense attorneys from inappropriately asking juries to find that a victim’s sexual orientation or gender identity or expression is to blame for a defendant’s criminal act, including murder.

Some attorneys have argued that their clients “panicked” after discovering the person against whom they committed a violent crime was gay or transgender, prompting them to act in a way they believed to be a form of self-defense.

In addition to its provision banning the LGBTQ panic defense, the Evangelista-Hunter bill includes a separate provision that strengthens the city’s existing hate crimes law by clarifying that hatred need not be the sole motivating factor for an underlying crime such as assault, murder, or threats to be prosecuted as a hate crime.

LGBTQ supportive prosecutors have said the clarification was needed because it is often difficult to prove to a jury that hatred is the only motive behind a violent crime. The prosecutors noted that juries have found defendants not guilty of committing a hate crime on grounds that they believed other motives were involved in a particular crime after defense lawyers argued that the law required “hate” to be the only motive in order to find someone guilty of a hate crime.

Salmi noted that while the hate crime clarification and panic defense prohibition provisions of the Evangelista-Hunter bill will become law as soon as the congressional review is completed, yet another provision in the bill will not become law after the congressional review because there are insufficient funds in the D.C. budget to cover the costs of implementing the provision.

The provision gives the D.C. Office of Human Rights and the Office of the D.C. Attorney General authority to investigate hate related discrimination at places of public accommodation. Salmi said the provision expands protections against discrimination to include web-based retailers or online delivery services that are not physically located in D.C.

“That is subject to appropriations,” Salmi said. “And until it is funded in the upcoming budget it cannot be legally enforced.”

He said that at Council member Allen’s request, the Council added language to the bill that ensures that all other provisions of the legislation that do not require additional funding – including the ban on use of the LGBTQ panic defense and the provision clarifying that hatred doesn’t have to be the sole motive for a hate crime – will take effect as soon as the congressional approval process is completed.

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

Defendant implicated in three anti-LGBTQ incidents since 2011

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shooting, DC Eagle, assault, hate crime, anti-gay attack, police discrimination, sex police, Sisson, gay news, Washington Blade

A D.C. man arrested in August 2020 for allegedly threatening to kill a gay man outside the victim’s apartment in the city’s Adams Morgan neighborhood and who was released while awaiting trial was arrested again two weeks ago for allegedly threatening to kill another man in an unrelated incident.

D.C. Superior Court records show that Jalal Malki, who was 37 at the time of his 2020 arrest on a charge of bias-related attempts to do bodily harm against the gay man, was charged on May 4, 2021 with unlawful entry, simple assault, threats to kidnap and injure a person, and attempted possession of a prohibited weapon against the owner of a vacant house at 4412 Georgia Ave., N.W.

Court charging documents state that Malki was allegedly staying at the house without permission as a squatter. An arrest affidavit filed in court by D.C. police says Malki allegedly threatened to kill the man who owns the house shortly after the man arrived at the house while Malki was inside.

According to the affidavit, Malki walked up to the owner of the house while the owner was sitting in his car after having called police and told him, “If you come back here, I’m going to kill you.” While making that threat Malki displayed what appeared to be a gun in his waistband, but which was later found to be a toy gun, the affidavit says.

Malki then walked back inside the house minutes before police arrived and arrested him. Court records show that similar to the court proceedings following his 2020 arrest for threatening the gay man, a judge in the latest case ordered Malki released while awaiting trial. In both cases, the judge ordered him to stay away from the two men he allegedly threatened to kill.

An arrest affidavit filed by D.C. police in the 2020 case states that Malki allegedly made the threats inside an apartment building where the victim lived on the 2300 block of Champlain Street, N.W. It says Malki was living in a nearby building but often visited the building where the victim lived.

“Victim 1 continued to state during an interview that it was not the first time that Defendant 1 had made threats to him, but this time Defendant 1 stated that if he caught him outside, he would ‘fucking kill him.’” the affidavit says. It quotes the victim as saying during this time Malki repeatedly called the victim a “fucking faggot.”

The affidavit, prepared by the arresting officers, says that after the officers arrested Malki and were leading him to a police transport vehicle to be booked for the arrest, he expressed an “excited utterance” that he was “in disbelief that officers sided with the ‘fucking faggot.’”

Court records show that Malki is scheduled to appear in court on June 4 for a status hearing for both the 2020 arrest and the arrest two weeks ago for allegedly threatening to kill the owner of the house in which police say he was illegally squatting.

Superior Court records show that Malki had been arrested three times between 2011 and 2015 in cases unrelated to the 2021 and 2020 cases for allegedly also making threats of violence against people. Two of the cases appear to be LGBTQ related, but prosecutors with the U.S. Attorney’s Office did not list the cases as hate crimes.

In the first of the three cases, filed in July 2011, Malki allegedly shoved a man inside Dupont Circle and threatened to kill him after asking the man why he was wearing a purple shirt.

“Victim 1 believes the assault occurred because Suspect 1 believes Victim 1 is a homosexual,” the police arrest affidavit says.

Court records show prosecutors charged Malki with simple assault and threats to do bodily harm in the case. But the court records show that on Sept. 13, 2011, D.C. Superior Court Judge Stephen F. Eilperin found Malki not guilty on both charges following a non-jury trial.

The online court records do not state why the judge rendered a not guilty verdict. With the courthouse currently closed to the public and the press due to COVID-related restrictions, the Washington Blade couldn’t immediately obtain the records to determine the judge’s reason for the verdict.

In the second case, court records show Malki was arrested by D.C. police outside the Townhouse Tavern bar and restaurant at 1637 R St., N.W. on Nov. 7, 2012 for allegedly threatening one or more people with a knife after employees ordered Malki to leave the establishment for “disorderly behavior.”

At the time, the Townhouse Tavern was located next door to the gay nightclub Cobalt, which before going out of business two years ago, was located at the corner of 17th and R Streets, N.W.

The police arrest affidavit in the case says Malki allegedly pointed a knife in a threatening way at two of the tavern’s employees who blocked his path when he attempted to re-enter the tavern. The affidavit says he was initially charged by D.C. police with assault with a dangerous weapon – knife. Court records, however, show that prosecutors with the U.S. Attorney’s Office lowered the charges to two counts of simple assault. The records show that on Jan. 15, 2013, Malki pleaded guilty to the two charges as part of a plea bargain arrangement.

The records show that Judge Marissa Demeo on that same day issued a sentence of 30 days for each of the two charges but suspended all 30 days for both counts. She then sentenced Malki to one year of supervised probation for both charges and ordered that he undergo alcohol and drug testing and undergo treatment if appropriate.

In the third case prior to the 2020 and 2021 cases, court records show Malki was arrested outside the Cobalt gay nightclub on March 14, 2015 on multiple counts of simple assault, attempted assault with a dangerous weapon – knife, possession of a prohibited weapon – knife, and unlawful entry.

The arrest affidavit says an altercation started on the sidewalk outside the bar when for unknown reasons, Malki grabbed a female customer who was outside smoking and attempted to pull her toward him. When her female friend came to her aid, Malki allegedly got “aggressive” by threatening the woman and “removed what appeared to be a knife from an unknown location” and pointed it at the woman’s friend in a threatening way, the affidavit says.

It says a Cobalt employee minutes later ordered Malki to leave the area and he appeared to do so. But others noticed that he walked toward another entrance door to Cobalt and attempted to enter the establishment knowing he had been ordered not to return because of previous problems with his behavior, the affidavit says. When he attempted to push away another employee to force his way into Cobalt, Malki fell to the ground during a scuffle and other employees held him on the ground while someone else called D.C. police.

Court records show that similar to all of Malki’s arrests, a judge released him while awaiting trial and ordered him to stay away from Cobalt and all of those he was charged with threatening and assaulting.

The records show that on Sept. 18, 2015, Malki agreed to a plea bargain offer by prosecutors in which all except two of the charges – attempted possession of a prohibited weapon and simple assault – were dropped. Judge Alfred S. Irving Jr. on Oct. 2, 2015 sentenced Malki to 60 days of incarnation for each of the two charges but suspended all but five days, which he allowed Malki to serve on weekends, the court records show.

The judge ordered that the two five-day jail terms could be served concurrently, meaning just five days total would be served, according to court records. The records also show that Judge Irving sentenced Malki to one year of supervised probation for each of the two counts and ordered that he enter an alcohol treatment program and stay away from Cobalt.

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