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6th Circuit upholds same-sex marriage bans in four states

In 2-1 decision, panel determines laws in Michigan, Ohio, Tennessee and Kentucky are constitutional

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

A federal appeals court has upheld marriage bans in four states.

A federal appeals court on Thursday ruled that bans on same-sex marriage in each of the four states within its jurisdiction are constitutional, once again opening up the possibility for the U.S. Supreme Court to weigh in on the issue.

In a 2-1 decision, a three-judge panel on the U.S. Sixth Circuit Court of Appeals ruled that prohibitions on same-sex marriage in Michigan, Ohio, Kentucky and Tennessee pass constitutional muster.

The 42-page majority opinion was written by U.S. Circuit Judge Jeffrey Sutton, an appointee of George W. Bush who was seen as the panel’s swing vote on marriage.

Sutton bases much of the ruling on his determination that bans on same-sex marriage pass rational basis review, maintaining the democratic process should decide the marriage issue, not the courts.

“When the courts do not let the people resolve new social issues like this one, they perpetuate the idea that the heroes in these change events are judges and lawyers,” Sutton said. “Better in this instance, we think, to allow change through the customary political processes, in which the people, gay and straight alike, become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair-minded way.”

Although numerous other courts have determined laws against on same-sex marriage are unconstitutional based on legal precedent set by the Supreme Court’s decision against the Defense of Marriage Act, Sutton writes the lower courts are instead controlled by Baker v. Nelson, a 40-year-old case seeking marriage equality the Supreme Court refused to hear.

“The Court has yet to inform us that we are not, and we have no license to engage in a guessing game about whether the Court will change its mind or, more aggressively, to assume authority to overrule Baker ourselves,” Sutton writes.

The decision reverses the opinions of district judges who had previously ruled against bans on same-sex marriage in each of the six cases before the Sixth Circuit. While the three lawsuits in Michigan and Kentucky sought outright marriage equality, three cases filed in Ohio and Tennessee sought state recognition of gay nuptials performed out of state.

Sutton was joined in the decision by U.S. Circuit Judge Deborah Cook, another appointee of George W. Bush.

Writing the dissent was U.S. Circuit Judge Martha Daughtrey, a Clinton appointee who accuses the majority of refusing to take up its responsibility to guard the constitutional rights of U.S. citizens.

“Today, my colleagues seem to have fallen prey to the misguided notion that the intent of the framers of the United States Constitution can be effectuated only by cleaving to the legislative will and ignoring and demonizing an independent judiciary,” she writes. “Of course, the framers presciently recognized that two of the three co-equal branches of government were representative in nature and necessarily would be guided by self-interest and the pull of popular opinion. To restrain those natural, human impulses, the framers crafted Article III to ensure that rights, liberties, and duties need not be held hostage by popular whims.”

The decision makes the Sixth Circuit the first federal appeals court in the wake of the DOMA ruling to uphold bans on same-sex marriage. Each of the other circuit courts that have ruled on the issue — the Tenth Circuit, the Fourth Circuit, the Seventh Circuit and the Ninth Circuit — found a constitutional right to marry for same-sex couples.

Chad Griffin, president of the Human Rights Campaign, said in a statement the two judges in the majority “will forever be cemented on the wrong side of history.”

“Gay and lesbian couples in Kentucky, Michigan, Ohio and Tennessee are just as deserving of marriage equality as the rest of America,” Griffin said. “Now, more than ever before, the Supreme Court of the United States must take up the issue and decide once and for all whether the Constitution allows for such blatant discrimination. We believe that justice and equality will prevail.”

But the ruling is fairly consistent with what legal observers predicted during oral arguments in the case in August. Daughtrey was seen overwhelming in favor of marriage equality, Cook said little but seemed to support marriage bans and Sutton was perceived as a conflicted swing vote who had tough questions for attorneys on both sides.

Tony Perkins, president of the anti-gay Family Research Council, praised the Sixth Circuit for refusing to engage in what he said was interpreting the Constitution “to demand that this modern redefinition of marriage be forced on the States.”

“Where marriage is redefined, parents are increasingly finding a wedge being driven between them and their children as school curricula is changed to contradict the morals parents are teaching their children,” Perkins said. “And as more and more people lose their livelihoods because they refuse to not just tolerate but celebrate same-sex marriage, many Americans are beginning to see that this is about far more than the marriage alter, but is about fundamentally altering society.”

Now that the decision has been handed down, plaintiff same-sex couples can appeal to either full the Sixth Circuit for en banc review or file a petition before the Supreme Court.

Chase Strangio, staff attorney in the American Civil Liberties Union’s Lesbian Gay Bisexual & Transgender Project, assisted with the Ohio litigation. Calling the ruling an “outlier,” Strangio pledged the take up the case with the nation’s highest court on an expedited basis.

“We believe it’s wholly unconstitutional to deny same sex couples and their families access to the rights and respect that all other families receive,” Strangio said. “We will be filing for Supreme Court review right away and hope that through this deeply disappointing ruling we will be able to bring a uniform rule of equality to the entire country.”

Shannon Minter, legal director for the National Center for Lesbian Rights, said the decision with respect to Tennessee will be appealed, but the exact steps forward are still under consideration.

“We are certainly going to seek further review in this case,” Minter said. “We are reviewing the opinion today and will make a decision very shortly.”

Dan Canon, an attorney with the Louisville-based Clay, Daniel, Walton & Adams who represented couples in the Kentucky lawsuit, said he can’t comment specifically on the steps forward, but intends to seek review in some way.

“We are weighing our options and coordinating with other states, so we do not know what action we will take as yet,” Canon said. “We are disappointed, and we think the ruling is wrong, but we do not intend to let it go unchallenged.”

Dana Nessel, an attorney for the plaintiff couple in the Michigan marriage case, said a news conference for her clients is taking place in Ferndale, Mich., at 7:30 and a statement will be delivered at that time. According to the Associated Press, the Michigan legal team for same-sex couples is set to file a petition before the Supreme Court.

The Supreme Court had previously declined to hear cases on marriage equality, but that took place at a time when the circuit courts were unanimous in striking down bans on same-sex marriage. Now that there’s a split within the circuits, the Supreme Court may reconsider its earlier refusal hear marriage litigation and make a uniform rule on marriage nationwide.

Justices are under no obligation to take up the case, but if petitions to the Supreme Court are filed soon enough and review is granted, it could enable justices to take up the litigation in time for nationwide ruling on marriage equality by mid-2015.

Marc Spindelman, a professor at the Ohio State University’s Moritz College of Law, had an optimistic spin on the Sixth Circuit decision in terms of potential for Supreme Court review.

“By squaring off against other federal appellate decisions declaring state bans on same-sex marriage unconstitutional, the Sixth Circuit surprisingly gives marriage equality supporters something that they wanted, but that the other appellate decisions, with all their unanimity, didn’t provide: A powerful and pressing reason for the U.S. Supreme Court to hear and decide the constitutional marriage equality question nationwide,” Spindelman said.

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13 Comments

13 Comments

  1. Morgan Hoover

    November 6, 2014 at 10:48 pm

    Conservative circuit court in a conservative region. And the same old anti-gay stick in the mud GOP governors got back in. They are in this region MI, Snyder, OH, Kasich, TN Haslam. All GOP and anti-marriage equality. KY's governor Beshear is Democrat and can't remember is he pro-marriage equality. The results suck but don't surprise me. These 4 states may amongst the last to get marriage equality. Even conservative-leaning Alaska now has marriage equality. Change will have to come from SCOTUS at this point for those 4 states. For all we know, Kansas and Missouri may get marriage equality soon and next.

  2. Rich Runyan

    November 7, 2014 at 1:01 am

    Constitutional muster my ass! This is a judge that needs to learn what lines government may NOT cross when legislating on the basis of peoples' ideas of right and wrong.

  3. Rich Runyan

    November 7, 2014 at 1:01 am

    Constitutional muster my ass! This is a judge that needs to learn what lines government may NOT cross when legislating on the basis of peoples' ideas of right and wrong.

  4. EL Manevitch

    November 7, 2014 at 2:57 am

    More stupid "reasoning" in ruling against marriage equality. If states should have the right to define marriage, what business did the court having in striking down bans against interracial marriage in Virginia?

    If states and the majority should decide social issues and not the court then separate but equal should be the law, schools should be segregated and abortion would be illegal.

    Further, just because a ruling in 1972 said states should be able to define marriage doesn't mean that is the final word on anything. The SCOTUS once ruled their was no constitutional right to sodomy only to have that decision reversed based on flawed reasoning. This judge reeks of incompetence.

  5. EL Manevitch

    November 7, 2014 at 2:59 am

    Oh, yes, my spelling is incorrect. I type in a hurry and these forums don't have spell check. You get the gist.

  6. EL Manevitch

    November 7, 2014 at 3:00 am

    Well if nothing else it reminds you that being gay does indeed still matter in America!

  7. EL Manevitch

    November 7, 2014 at 3:02 am

    Don't be surprised if the new Republican majority in Congress introduces a constitutional amendment to define marriage. If not now, then likely after the SCOTUS issues a ruling in favor of a constitutional right to marriage equality.

    The struggle never ends so you can never become complacent. Stop assuming people will do the right thing. Even racial minorities have to be on the watch that conservatives don't roll back their rights!

  8. EL Manevitch

    November 7, 2014 at 3:04 am

    P.S. Roe V Wade was decided in 1973 and told us women have a constitutional right to an abortion but that hasn't stopped social conservatives from trying to change that ever since.

  9. Doug Mcneely

    November 7, 2014 at 9:05 pm

    Dear Gov. Rick Snyder of Michigan, its time to step up for marriage equality and stop leading from behind. You better hope the Supreme Court acts fast cause I am putting my house up for sale. I will be moving to a state that offers marriage equality along with all my family's tax dollars. Miss me yet?

  10. George M Melby

    November 7, 2014 at 9:24 pm

    These four whiny States can legally wiggle and squirm all they want… once it hits the SCOTUS, it will be settled with marriage equality for ALL people! Kansas is going to also find out the hard way that one does NOT deny people their right to marry just because the irreligious right wing zingers don't agree. This has nothing to do with the Bible! It has everything to do with US Constitutional Law! Pastor G M Melby!

  11. George M Melby

    November 7, 2014 at 9:29 pm

    Good news, Morgan! Missouri has now begun issuing marriage licenses AND their first marriage this afternoon, November 7th! Kansas AG still has his head smelling his butt, but he is just postponing the inevitable… that the SCOTUS will issue him a new a$$hole! Now, please! ASAP!

  12. Tomron Wallen

    November 7, 2014 at 11:06 pm

    Pardon this non-legal expert, but it has always been my impression that judges are seated to rule on the constitutionality of the case brought before them – NOT an opinion as to whether people would think that judges and lawyers are (paraphrase coming) viewed as heroes in these change events. What kind of B/B is that? And what has that ridiculous statement have to do with constitutionality? Oh well, we'll no doubt finally get a definitive ruling from the Supreme Court, but once again the rights of people will be held up while the process goes through its' lengthy timing – AND possibly not even to be placed on the docket in 2015.

  13. Raymond G. Whitham

    November 7, 2014 at 11:20 pm

    So it's the majority that decides what rights minorities can have. Heaven forbid the 6th Circuit Court be forced to make a decision on the Constitutionality of a law!

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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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