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Anti-LGBT forces strike back with religious freedom bills

State lawmakers seek to enable discrimination against same-sex couples

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Sally Kern, gay news, Washington Blade
Sally Kern, gay news, Washington Blade

State Rep. Sally Kern (R-Oklahoma City) has introduced anti-gay bills in the state legislature. (Photo public domain)

Amid a series of court rulings in favor of marriage equality, anti-LGBT forces are responding in state legislatures with bills that would allow discrimination to continue against same-sex couples.

The introduction of these bills — which range from allowing businesses to refuse services to same-sex couples to cutting off funds for the purposes of granting marriage licenses — comes as many conservative states are facing the reality of marriage equality delivered through court order and as the U.S. Supreme Court is set to deliver a nationwide ruling on the issue later this year.

Many of these bills, named Religious Freedom Restoration Acts, have the stated purpose of prohibiting the government from burdening an individual’s exercise of religion except to achieve a compelling interest, and only if that burden is the least restrictive means of reaching that interest.

But the wording in such legislation is seen as a thinly veiled attempt to enable discrimination by allowing businesses, such as florists and bakeries in the wedding business, to refuse services to same-sex couples, or by allowing court clerks to refuse to issue them marriage licenses.

Eunice Rho, advocacy and policy counsel for the American Civil Liberties Union, said the bills are problematic not only because they would allow discrimination against LGBT people, but also because they are constitutionally suspect.

“Some of these bills single out same-sex couples for discriminatory treatment, and we believe that poses a potential constitutional problem,” Rho said. “But it also obviously violates the principle that you’re being paid by the public, you’re being paid by taxpayer dollars, you should be serving all taxpayers.”

The center stage for these bills is Oklahoma, where lawmakers have introduced no fewer than eight pieces of anti-LGBT legislation at the start of the 2015 legislative session. Marriage equality became legal in the state as a result of a decision striking down the state’s ban on same-sex marriage from the U.S. Tenth Circuit Court of Appeals, which the Supreme Court refused to review in October.

Two of these bills were introduced by State Rep. Sally Kern, the anti-LGBT lawmaker who gained notoriety in 2008 when she claimed homosexuality posed a greater danger to the country than terrorism, saying, “Studies show that no society that has totally embraced homosexuality has lasted more than, you know, a few decades. So it’s the death knell of this country.”

According to a coalition of LGBT groups monitoring Oklahoma — the Human Rights Campaign, the National Center for Lesbian Rights and Freedom Oklahoma — the eight bills were submitted just before the filing deadline.

Troy Stevenson, executive director of the statewide LGBT group Freedom Oklahoma, pledged in a statement to defeat each of the bills in partnership with other organizations.

“Our community is under attack, and we are fighting back,” Stevenson said. “We won marriage last year, and in retaliation, a tiny handful of lawmakers have lashed out at us with an unprecedented amount of discriminatory legislation.”

The two bills introduced by Kern are the Freedom to Obtain Conversion Therapy Act, which would legitimize “ex-gay” sexual orientation conversion therapy and allow parents to seek the widely discredited practice for their children, and House Bill 1597, a bill that would allow Oklahoma businesses to deny services and accommodations to “any lesbian, gay, bisexual or transgender person, group or association.”

Other bills would allow discrimination against LGBT people in the name of religious freedom. One bill, “Oklahoma Religious Freedom Reformation Act,” would allow individuals the freedom to refuse services based on sexual orientation for religious reasons or to refuse to consider a same-sex marriage as valid.

Another bill, the “Oklahoma Religious Freedom Act,” would prohibit the state from asserting a government interest in requiring a person to take part in a marriage ceremony contrary to a person’s religious beliefs.

Four more bills would undermine the newly achieved right of same-sex couples to wed in the state. The “Preservation of Sovereignty and Marriage Act” would prohibit state and local officials from recognizing or performing same-sex marriages and cut off government funds for issuing or recognizing a same-sex marriage license.  The “Protection of Religious Freedom in Sanctity of Marriage Act” provides a broad carve-out to allow individuals and religious organizations to refuse services to recognize a same-sex marriage.

Another bill, House 1125, seeks to do away with marriage licenses altogether in Oklahoma and instead require court clerks to file marriage certificates that recognize common law marriages or marriage ceremonies. Finally, House Bill 2215 seeks to stigmatize transgender people by requiring them to be designated as transgender on any marriage application and any marriage license.

Marty Rouse, HRC’s national field director, said the bills “are nothing more than despicably vile direct attacks” on LGBT people in Oklahoma.

“It’s astounding that extreme anti-equality politicians are making such drastic attempts to harm LGBT families,” Rouse said. “We call on all fair-minded Oklahomans to stand up for equality and help stop these horrific bills.”

Oklahoma is but one state where anti-LGBT bills have been introduced at the start of the 2015 legislative session. Other legislation has been introduced in states where courts recently made same-sex marriage legal — Colorado, Indiana, South Carolina, Utah, Virginia and Wyoming — and in states where marriage equality may come soon — Georgia, Michigan, Missouri, Mississippi and Texas.

Including Oklahoma, a dozen states have anti-LGBT legislation pending before their state legislatures, according to a list compiled by the American Civil Liberties Union.

Colorado — House Bill 1037 would prohibit public institutions of higher education from denying a religious student group a benefit solely based on the group’s requirement that its leaders adhere to religious beliefs or a standard of conduct, which could enable discrimination against LGBT students.

Georgia — House Bill 29 is a Religious Freedom Restoration Act, although under this bill no employee may assert rights against an employer that isn’t the government.

Indiana — One pending bill, Senate Bill 127, would allow religious organizations contracting with the state to give preference in employment to individuals of a particular religion and require all employees to conform to the tenets of the religion to extent possible under Title VII, which could enable discrimination against LGBT workers.

Two other identical bills, House Bill 1632 and Senate Bill 568, are Religious Freedom Restoration Acts that would also allow individuals to file private litigation if they feel their religious beliefs are burdened.

Michigan — Senate Bill 4 is a Religious Freedom Restoration Act that would broadly define government to include “a person acting under the color of law.”

Missouri — Two identical bills — House Bill 104 and Senate Bill 248 — would prohibit institutions of higher education from denying benefits or discriminating against religious student associations from requiring leaders to adhere to the association’s beliefs or comply with standards of conduct, which could enable discrimination against LGBT students.

Mississippi — House Bill 858 would prohibit a state higher education institution from refusing to grant recognition to a religious student organization on the basis of the religious content of the group’s speech or from conducting internal affairs.

South Carolina — One bill, Senate Bill 116, would allow anyone employed by a judge of probate or clerk of court or any other officer authorized by law to issue a marriage license to refuse same-sex couples if doing so would violate a sincerely held religious belief.

Another bill, House Bill 3032, would prohibit the use of taxpayer funds or government salaries for paying for an activity that includes licensing or support of same-sex marriage. In the event an employee recognizes, grants, or enforces a same-sex marriage license, that person will be no longer eligible for a salary, pension and benefits from the state.

Texas — Two measures, House Joint Resolution 55 and Senate Joint Resolution 10, are constitutional amendments along the lines of a Religious Freedom Restoration Act. For the House version, the term “government” could be a county, municipality or other political subdivision of Texas.

Another bill, House Bill 623, would prohibit taxpayer funds from being used to license or support same-sex marriage. An employee who issues a license to a same-sex couple or recognizes their marriage would forfeit their salary, pension and employee benefits.

Utah — One bill, House Bill 66, would allow a person authorized to solemnize a marriage to refuse if that marriage violates a person’s sincerely held religious beliefs. Another measure, House Joint Resolution 5, is a Religious Freedom Restoration Act in the form of a constitutional amendment, that would allow religious organizations and individuals acting in connection with those religious organization from offering any service or rite that conflicts with their faith.

Virginia — One bill, House Bill 1409, would prevent any public entity from requiring its contractors to abide by non-discrimination policies that are more inclusive than the state law, which would leave out protections for LGBT people. Another bill, House Bill 1414, would allow people seeking to renew a state license to refuse assisting with same-sex marriage if that would violate religious or moral convictions.

Wyoming — House Bill 83 is a Religious Freedom Restoration Act that would enable a burdened party to bring a claim against a “government or person acting under color of state law.” House Bill 26, much like existing law, would enable an ordained minister to refuse to perform a ceremony of marriage.

Another religious freedom bill is expected to be reintroduced in Kansas, although the bill hasn’t been introduced yet. Last year, the Kansas House approved legislation that would enable individuals and business to refuse services for same-sex weddings, but the bill never came up for a vote in the Senate.

And this list doesn’t take into account what bills may emerge at the federal level. Sen. Ted Cruz (R-Texas) confirmed to the Washington Blade last week that he plans to introduce a U.S. constitutional amendment that would prohibit states from overturning state marriage laws. Also expected is the Marriage & Religious Freedom Act, which is purportedly aimed at prohibiting discrimination in the tax code against organizations that exercise “religious conscience” against same-sex marriage.

At least one campaign has already emerged with the intent of stopping bills in the Georgia General Assembly. Georgia Unites Against Discrimination has launched with the goal of stopping anti-LGBT bills from passing in the state and to legalize statewide LGBT non-discrimination protections.

Jeff Graham, executive director of Georgia Equality, outlined the goals of the coalition in a statement, saying personal stories will be a component of the work.

“Through these coalition efforts, we will educate, organize and activate the citizens of Georgia to stop this dangerous legislation,” Graham said. “We will highlight the stories of real Georgians as we work to make the case that in our state, discrimination against anyone is wrong, and that includes people who are gay, lesbian or transgender.”

What could make stopping these bills difficult is massive Republican victories in state legislatures as a result of the GOP wave last year. The GOP now controls 68 out of 98 partisan state legislative chambers, which is the highest number in the history of the party, although the Republican presence in legislatures already controlled by the GOP is about the same.

History could prove to be a guide. Last year, Arizona Gov. Jan Brewer vetoed a Religious Freedom Restoration Act approved by the Republican legislature after a massive outcry in the media and from Republican leaders and LGBT advocates. Similarly, a religious freedom bill approved by the Michigan House during the lame duck session of the legislature never came up in the Senate.

However, passage of another Religious Freedom Restoration Act succeeded in Mississippi, where Gov. Phil Bryant signed a measure into law in April despite objections from those who feared it would legitimize discrimination in the state.

ACLU’s Rho said the failure of these bills last year gives hope they will die this year — even in Republican legislatures — because it demonstrates opposition to them “cuts cleanly across partisan lines.”

“Gov. Jan Brewer vetoed the bill in a very public way in Arizona with very prominent Republicans urging her to do so,” Rho said. “And we have seen in other states allies that you think would naturally be aligned with one party versus the other, such as the business community, really rising in opposition to these kinds of bills. And so, I don’t think the election outcomes of 2014 necessarily determined how the issues will fare, but we are obviously very concerned and will be very, very vigilant about the movement of these bills.”

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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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