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Judge rules against Kansas same-sex marriage ban

Preliminary injunction allows same-sex couples to wed starting Nov. 11

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same-sex marriage, gay news, Washington Blade
same-sex marriage, gay news, Washington Blade

A federal judge has ruled against the ban on same-sex marriage in Kansas.

As voters headed to the polls for Election 2014, a federal judge on Tuesday ruled against the ban on same-sex marriage in Kansas.

In a 38-page decision, U.S. District Judge Daniel Crabtree, an Obama appointee, issued a preliminary injunction against the enforcement on Kansas law prohibiting of marriage rights for same-sex couples. The injunction is warranted, Crabtree writes, because of legal precedent and because state officials defending the law haven’t made a sufficient case they would prevail in court.

“Because Kansas’ constitution and statutes indeed do what Kitchen forbids, the Court concludes that Kansas’ same-sex marriage ban violates the Fourteenth Amendment to the Constitution,” Crabtree writes. “Accordingly, the Court grants plaintiffs’ request for preliminary relief and enters the injunction described at the end of this Order.”

A temporary stay was included as part of the decision, so same-sex couples won’t be able to wed in Kansas until 5 pm Central Time on Nov. 11, unless the state informs the court sooner it won’t seek review before the U.S. Tenth Circuit Court of Appeals.

The litigation filed before the court was filed by the American Civil Liberties Union of Kansas to compel the circuit to confirm to judicial precedent enacted the Tenth Circuit rulings against same-sex marriage bans in Utah and Oklahoma, which lie within the same circuit as Kansas.

According to the Williams Institute at the University of California, Los Angeles, the ruling opens to door to marriage for an an estimated 4,009 cohabiting same-sex couples in Kansas. An estimated 22 percent of these couples are raising nearly 1,750 children in their homes.

The decision comes on the heels of a hearing on Friday on the matter of issuing a preliminary injunction in the case. According to the Associated Press, the state urged the judge not to block the state from enforcing the ban until a decision from the Kansas Supreme Court, which is scheduled to hold hearings on a related case on Nov. 6, but the ACLU maintained further delay would harm same-sex couples in Kansas. At the conclusion of the hearing, Crabtree said he would decide whether to issue a preliminary injunction in the case “as quickly as we can.”

Kansas prohibition on marriage rights for same-sex couples, known as Kansas Proposed Amendment 1, was ratified at the ballot as part of the state constitution by 70 percent of the vote. Gov. Sam Brownback and Attorney General Derek Schmidt defended the law in court against litigation and campaigned on those efforts ahead of Election Day in Kansas.

In a statement, Schmidt pledged to appeal the decision on an expedited basis for an en banc hearing before the Tenth Circuit.

“The State of Kansas continues to have a strong interest in the orderly and final determination of the constitutionality of its prohibitions on same-sex marriage,” Schmidt said. “The state defendants will promptly appeal this decision to the Tenth Circuit Court of Appeals and will ask for consideration by the full Circuit Court. Such a request for en banc consideration was not previously made by either Utah or Oklahoma when their cases were heard by a three-judge panel of the appellate court.”

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22 Comments

22 Comments

  1. Destiny Emery

    November 4, 2014 at 9:17 pm

    well that's good. i support equality for everyone! :)

  2. Theo McKinney

    November 4, 2014 at 9:33 pm

    That phoney remaining “slippery slope strategy” that Antigays keep trying to insist is real, is 100% nonsense, and useless as a rational basis for valid lawmaking in America under The U. S. Constitution, yet we hear it time and again, ad nauseum (for real):

    Gutted Herring #1- ON ANIMALS MARRYING PEOPLE:

    Marriage requires informed consent which animals, mute inanimate objects, and children do not legally possess. So no marriage.

    The antigays who rely on this comparison would be hard pressed to make the direct comparison they are peddling as valid, since not one of them can look at a gay married couple, and tell us which of the 2 in the couple represents “the human” and which of the 2 in the couple represents the “animal/child/tree”.

    …And once you’ve figured out which is which, please try undertaking this same comparison under oath in a court of federal law!

    (we’ll see if you don’t get sanctioned for contempt.)

    Gutted Herring #2- ON SIBLINGS MARRYING SIBLINGS

    The only government purpose of recognizing marriages, is to officially consolidate 2 unrelated law-abiding households into a single family unit.

    Oh, but look again to see why this red-herring was dried up and gray before it even got out of its antigay agenda box!:

    Siblings are **already** considered ‘family’ from the day they were born; therefore any further recognition of their family status is purely redundant, and specifically not required, as these folks are born with the classification of being “recognized family members”.

    Which is precisely why no one is seeing additional sibling marriage rights talked about by anyone but inhumane antigays with a bizarre grudge they have yet to explain to anyone coherently.

    Gutted Herring #3- THE PHONY POLYGAMY BOOGEYMAN:

    Straight polygamists may already marry the law-abiding oppsex partner of their choice, albeit one at a time. Divorce law nevertheless, still allows each of them to divorce, and then marry the next oppsex partner from their list of oppsex choices, and do it again and again, as often as they please, with nary a peep out of any “marriage protectors” (rolled eyes) or any family law regulations trying to stop them.

    Fact of the matter: polygamists aren’t complaining much, because they already have equal marriage rights. They know it. Everyone knows it.

    Ironically, a straight spouse-abusers may marry a 4th time, even if they are doing time for mortally injuring a 1st, 2nd or 3rd wife/husband, so long as both partners are straight. (note: the notoriously patricidal Melendez brothers as well as the LA Nightstalker, all “married” their oppsex partners WHILE IN JAIL FOR MURDER!!!)

    In stark contrast, Antigays say LGBT couple never should be able to marry.

    To “Protect the sanctity of marriage”.

    All of the above red-herrings are example of pure animus based, antigay incoherence; every red-herring they ever thought they had, are but fishbone and bacteria anymore, and every attempt to invoke them to deny gays equal rights, using family law as an excuse, is an illegal and automatic **fail***

    Justice and Equality for All.

    So simple. No herrings required.

  3. Dan Mauller

    November 4, 2014 at 9:38 pm

    There really hasn't been anything new argued by the antis in over 20 years – they just keep cycling through the same, tired, nonsense.

    And keep losing.

  4. Dan Mauller

    November 4, 2014 at 9:38 pm

    There really hasn't been anything new argued by the antis in over 20 years – they just keep cycling through the same, tired, nonsense.

    And keep losing.

  5. Donald Davidson

    November 5, 2014 at 12:26 am

    Now if Schmidt and Brownback lose in the election today my life will be complete and fulfilled!!!!

  6. Charmin Hollis

    November 5, 2014 at 2:49 am

    I support equality for everyone and I hope that Kansas lifts its ban on same sex marriage for ever!!!!! Love is love no matter who you are and who are we to say that same sex couples can not get married. ♡♡♡♡

  7. Rob Montague

    November 5, 2014 at 5:09 am

    Get out the wedding gowns and tuxes, fellow Kansans. Marriage equality is coming on November 11th. The state doesn't have a prayer at the 10th Circuit, not after its ruling on the Oklahoma and Utah marriage bans. There's nothing different about Kansas's marriage ban to distinguish it from the ones the 10th Circuit already found to be unconstitutional. Wyoming tried the same thing Kansas is doing and got the same result a couple of weeks ago, and now people are marrying there. We're the last holdout in the Circuit, and we should be embarrassed by that. But we're going to be stuck with backward-looking political leaders for another 4 years, so it's going to continue to be bumpy as all get out. As someone once said, it was never guaranteed to be easy or pretty!

  8. Rob Montague

    November 5, 2014 at 8:22 am

    Just read the actual decision. It's a bit heavy going for a non-attorney because the judge had to deal with a number of very technical arguments by the state on the appropriateness of the Court's accepting the case. It's dry stuff, but Judge Crabtree clearly sets out all the factors that must be considered under each argument and demonstrates how this case does not meet the standards established for declining to take the case. He then moves on to the actual merits of the case and demonstrates that the Kansas marriage ban is virtually identical to the bans in Utah and Oklahoma that the 10th Circuit found to be unconstitutional. He discusses the other factors that must be present to justify granting this kind of preliminary injunction and finds that they exist, therefore he is authorized to issue it. He stayed the effective date of the decision for a week to give the state an opportunity to appeal to the 10th Circuit and to seek a longer stay from them. However, it's very unlikely that the 10th Circuit will do that because this case doesn't present any new issues that it didn't already consider in the Utah and Oklahoma cases. Despite it's heroic last stand, Kansas doesn't have any legal legs left to stand on. Even if Kansas does take the case to the 10th Circuit it's unlikely to get a new stay because one of the key conditions for getting one is that it's likely that it will prevail once the case has been fully argued and decided. And there's no likelihood of that, at all, so the 10th Circuit would have no legal grounds for granting another stay. You can be pretty sure that marriage equality will arrive in Kansas on November 11th!!!

  9. Tim MacGeorge

    November 5, 2014 at 11:20 am

    FYI … you're correct that animals cannot provide consent, however they are not "inanimate objects." Inanimate means "not alive, especially not in the manner of animals and human."

  10. Theo McKinney

    November 5, 2014 at 11:47 am

    Tim MacGeorge "inanimate objects" was only one in my list of three candidates, (not two) read it again and note the commas used to separate each of the 3 elements.

    Later I give examples "animal/child/tree" with tree representing the inanimate object,)

    See? Vocabulary crisis solved.

  11. Choru Shin

    November 5, 2014 at 12:59 pm

    Don, sorry they won.. i am so depressed………….

  12. Terry Wayne Schneider

    November 5, 2014 at 9:29 pm

    Commentators, go forth to pseudo conservative and bigot blogs and news feeds and dialog with these people. Currently you are preaching to the choir. Dialog with these people with facts and intelligence and refrain from name calling. State the value of Marriage Equality to society and that Marriage Equality is a legal marriage contract with a government entity to provide legal equality and benefits to same gender couples as mixed gender couples enjoy and is not a license to religious marriage. Religious unions require not government license. Government marriage license and religious unions or marriages are not the same. This is separation of Church and State. The opposition has since the beginning claiming it is a religious issue which is crossing the line of Church and State. There are some religious people who are so weak in their faith that they seek the state to keep them from sinning.
    Check out Marriage Equality USA and other similar web sites for more information on Marriage Equality stories and guide lines on conducting a dialog with the opposition to marriage equality.
    Marriage Equality, Accept Nothing Less.

  13. Dan Mauller

    November 5, 2014 at 9:36 pm

    Nothing you can do about willful ignorance. They've been told all of what you say for over 20 years – they just keep cycling through their same, tired non-arguments.

    The good news is, they really don't matter any more.

  14. Terry Wayne Schneider

    November 6, 2014 at 4:37 am

    Dan that is defeatism thinking which is the same thinking that the Democrats, moderate and liberal registered voters had on Tuesday 4 November 2014 and thus did not vote. According to a NPR story the turn out this time for a mid-term election was the lowest since WWII. This low number was definitely not caused by Republican registered voters. They voted.
    I do not know where you get your news and information from but it really does matter as all the gains up to now by the BGLT community can be lost with one SCOTUS decision.

  15. Terry Wayne Schneider

    November 6, 2014 at 4:42 am

    Dan Mauller Dan, Even though you Facebook page indicate you may support BGLT community I have my doubts from your comments. You may be a wolf in sheep's clothing.

  16. Dan Mauller

    November 6, 2014 at 12:05 pm

    Terry Wayne Schneider Not defeatist at all. We've changed countless hearts and minds in the last few decades. Why spend any effort on those who lack one, the other, or both? What some nitwit on a comments section has to spew out has no bearing on the SCOTUS.

    Maybe you haven't noticed, but it's the opposition to SSM that keeps getting defeated.

  17. Terry Wayne Schneider

    November 6, 2014 at 8:30 pm

    Dan Mauller Dan If SCOTUS make up in the future becomes to much control by the pseudo conservative Religious fanatics the Texas ruling could be reinstated. Same Gender Marriage is being defeated because there is not enough dialog to explain to people who are against marriage that it is no a Religious marriage but a government contract between two people. That is a Marriage License and it is not a license to marry in a church that is up to the church and the couple. The marriage can be performed by an authorized government official. When a government official refuse to perform this service because of religious convictions the official has violated the separation of church and state.
    Am not sure who the we you are referring to who changed countless hearts and minds. If you are one of the we than you need to continue as it is not over. It is only the start. Most BGLT people in this country do not have equality in work, housing and social assistance.
    Here is a link to prove that minds do change, it is from WUNC public radio in Chapel Hill, NC
    https://docs.google.com/spreadsheets/d/1zLRjHn1L7TO73SBEYpucavPFhvE9X_N0nw4gkCF2Cdg/edit?usp=sharing

  18. Terry Wayne Schneider

    November 6, 2014 at 8:32 pm

    Sorry click the reply to soon this should be added to the previous post.
    The racial integration got the law and courts to force integration but did not work at changing the minds and hearts of the racist people thus the racism still exist and even in the courts.
    Dan if you think it is a waste of time to dialog on pseudo conservative blogs that is your view but when you go around tell others that you view is the correct one you are only playing into the hands of the pseudo conservatives.

  19. Dan Mauller

    November 6, 2014 at 9:00 pm

    Terry Wayne Schneider Knock yourself out. I've spent over 10 years talking to people in person which is MUCH more effective that any alleged "dialog" that takes place in comments sections – on conservative blogs or otherwise. But you go on, put yourself on the endless cycle of "Reproduction! The Children! God! The Family! Tradition! Disease! [email protected] sex!" I guarantee you that's essentially the loop you'll find yourself going through over and over and over again.

    Intentional ignorance can't be overcome.

  20. Dan Mauller

    November 6, 2014 at 9:03 pm

    Terry Wayne Schneider " there is not enough dialog to explain to people who are against marriage that it is no a Religious marriage but a government contract between two people. "

    That is where you are wrong. It has been pointed out over and over and over and over that the debate is only about the civil contract of marriage – for 22 years!. Anyone who STILL thinks it's about religion is CHOOSING to remain ignorant. There isn't ANYTHING – from either side, really – that hasn't been repeated ad nauseum for over two decades now.

  21. Dan Mauller

    November 6, 2014 at 9:04 pm

    Terry Wayne Schneider I'm not the least bit concerned about your doubts. You know nothing about me.

  22. Terry Wayne Schneider

    November 6, 2014 at 10:37 pm

    The other shoe in Marriage Equality has dropped today. The Federal 6th District has up held ban on same gender marriage stating that the state government only intended marriage between mix gender couples to produce children and same gender cannot meet this requirement.
    This will now mean that SCOTUS will hear Marriage Equality challenges probably next year.

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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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