In the same week Republican presidential candidates are scheduled to slug it out in their first official debate, the Republican National Committee is set to vote during its summer meeting on resolutions against same-sex marriage and in favor of anti-gay sex education in schools, the Washington Blade has learned.
The Blade obtained the text of two proposed anti-gay resolutions and a third relatively pro-gay counter-proposal on the table for discussion during the upcoming meeting in Cleveland.
If the RNC were to adopt any of the non-binding resolutions next week, it would be the first official act of the Republican Party on the marriage issue following the historic U.S. Supreme Court decision last month in favor of marriage rights for same-sex couples. The initial vote could take place during the executive committee meetings on Wednesday and Thursday, where a successful vote would lead to consideration at the full committee meeting on Friday.
One resolution, titled “Resolution for Balanced Sex-Ed in Schools,” was introduced by former Michigan State House lawmaker and RNC member Dave Agema. It encourages schools “teaching the homosexual lifestyle in their sexual education class” to “also include the harmful physical aspects of the lifestyle.”
The resolution is based on the belief the Republican Party “supports the institution of traditional marriage,” which is considered code for opposition to same-sex marriage. The proposal is also based on questionable assertions that American culture “is portraying the homosexual lifestyle as an attractive option for school-aged children” and the Journal of Acquired Immune Deficiency Syndromes says being gay takes up to 21 years off a person’s life.
Tempering the resolution is language saying Republicans believe all people should be treated with respect and dignity. The measure also calls for partnerships with parents for, among other things, efforts to “increase adolescent education on the spectrum of risks involved in alternative lifestyle.”
The resolution sponsor, Agema, is the same RNC member who has repeatedly landed in hot water for making anti-gay, racist and anti-Muslim posts on Facebook, such as an endorsement of Russia’s anti-gay propaganda law and an article saying gay people are “filthy,” frequently pedophiles and responsible for 50 percent of U.S. murders. Republican National Committee Chair Reince Preibus and Michigan Republican Party Chair Bobby Schostok have called on Agema to step down and the RNC has censured him, but no explicit mechanism exists to expel him from the RNC and he has remained in his post.
In response to a Blade email seeking comment on the proposal, Agema implicitly confirmed its accuracy, but had nothing further to say.
“First, how did you get a copy of this?” Agema said. “If you could answer this question please. Second, I don’t comment until after deliberations on the resolutions.”
Another resolution, titled “To Reserve, Strip and Pursue,” was introduced by Republican National Committee member Ross Little of Louisiana. The proposal responds to the U.S. Supreme Court ruling on same-sex marriage by calling for action from Congress saying the ruling violates the U.S. Constitution.
The measure criticizes the marriage decision “as lacking any warrant in the text, logic, structure or original understanding of the constitution,” arguing it ignores freedom of religion under the First Amendment and powers reserved to the states. The resolution says restricting marriage to one man, one woman is underpinned by the Bible, millennia of experience and U.S. Associate Justice Anthony Kennedy’s 2013 decision upholding the right of states to define marriage in the ruling against DOMA.
The proposal calls on Congress to defy the Supreme Court by passing, in accordance with the Tenth Amendment, legislation saying marriage laws and recognition of marriages is the exclusive province of the states, although states shouldn’t be able to legalize polygamy or prohibit interracial marriage. Further, in accordance with Article III of the U.S. Constitution, the resolution seeks legislation stripping federal courts of jurisdiction over marriage issues.
Little had no comment on the proposed resolution when reached by phone.
Another counter resolution in response to those proposals sponsored by Maryland RNC member Diana Waterman is also slated for consideration. That proposal starts by referring to the Growth & Opportunity Report, which in 2013 called for GOP inclusion of gays and other groups. The resolution says the court has ruled on marriage and candidates, not the RNC, should be commenting further on the decision, but Republicans should nonetheless “support and promote our nominee, regardless of their expressed opinion on Obergefell v. Hodges.”
Co-sponsors of the resolution are RNC members from D.C. Robert Kabel, Jill Homan and Jose Cunningham, who are gay.
The RNC didn’t respond to multiple requests for comment on any of the resolutions, although multiple sources have confirmed they’re on the table.
TJ Helmstetter, a DNC spokesperson, slammed the RNC for consideration of the proposed anti-gay resolutions.
“Even though marriage equality is now the law of the land, Republicans are still pursuing the same divisive and outdated anti-gay, anti-equality agenda,” Helmstetter said. “Move on, GOP, embrace the times.”
Here’s the Dave Agema resolution:
From Dave Agema:
RESOLUTION FOR BALANCED SEX-ED IN SCHOOLS
Whereas the Republican Platform supports the institution of traditional marriage and believes it will determine the success as a nation; AND
Whereas, the Republican Platform states that education is more than schooling, that it is the whole range of activities by which families and communities transmit to a younger generation, not just knowledge and skills, but ethical and behavioral norms and traditions; AND
Whereas, the Republican Platform states that American education has been the focus of constant controversy, as centralizing forces outside the family and community have sought to remake education in order to remake America; AND
Whereas, the Republican Platform supports the right of parents to consent to medical treatment including mental health and drug treatment which includes giving our children accurate information about behavioral choices that could affect their health and welfare; AND
Whereas, we teach our children the hazards of smoking that can take up to 10 years off their life according to the New England Journal of Medicine; AND
Whereas, the popular culture is portraying the homosexual lifestyle as an attractive option for school-aged children; AND
Whereas, according to the Journal of Acquired Immune Deficiency Syndromes (JAIDS) participation in the homosexual lifestyle can take up to 21 years off one’s life; AND
Whereas, one of the fastest growing age groups getting HIV are 13-24 year olds according to the Center for Disease Control (CDC-HIV Among Youth-Age-Risk-HIV/AIDS); AND
Whereas, the CDC reports that over 50% of the youth infected with HIV don’t know that they are infected (CDC- HIV Among Youth – Age- Risk-HIV/AIDS); AND
Whereas, the prevalence of having been taught in school about HIV infection or AIDS decreased from 92% in 1997 to 85% in 2013; AND
Whereas, the CDC states that continual HIV prevention outreach and education efforts, including programs on abstinence, delaying the initiation of sex, and negotiating safer sex for the spectrum of sexuality among youth—homosexual, bisexual, heterosexual, and transgender—are urgently needed for a new generation at risk.
THEREFORE BE IT RESOLVED; the National Republican Party:
1. Embraces the principle that all Americans should be treated with respect and dignity;
2. Encourages schools that are teaching the homosexual lifestyle in their sexual education class also include the harmful physical aspects of the lifestyle;
3. Encourage the partnership with parents to deliver exemplary sexual health education emphasizing HIV and other STD prevention, increase adolescent education on the spectrum of risks involved in alternative lifestyles, and establish safe and supportive environments for students and staff.
Here’s the Ross Little resolution:
To Reserve, Strip & Pursue
Resolution for the Republican National Committee
On the Restoration of Marriage in Response to Obergefell v. Hodges
By Ross Little, Jr., Republican National Committeeman, Louisiana
WHEREAS, The Supreme Court in a 5-4 ruling in the case of Obergefell v. Hodges, a decision lacking any warrant in the text, logic, structure or original understanding of the constitution, with no basis in the Constitution, nor in the precedent of the Court, nor in the history of this nation, acting beyond its constitutional bounds by declaring marriage between two persons of the same sex to be a newly invented “fundamental right,” requiring state authorities and officials to license marriages between persons of the same sex, overturning the law of 34 states, and ignoring the First Amendment provision of free exercise of religion, has usurped the powers reserved by the Constitution to the states and to the people;
WHEREAS, Marriage has always been understood in our law and in the philosophical traditions supporting it, as the conjugal union of a husband and a wife, instituted by God as set forth in the Bible, supported by religion, proved by millennia of experience, recognized by all those who framed and ratified the United States Constitution, by all of the founding states, by all of the states at the time the Fourteenth Amendment was adopted, and by all of the states up until 2003; all these facts having been ignored by the majority in Obergefell;
WHEREAS, The Supreme Court’s effort to redefine marriage creates an inevitable clash between the government and the First Amendment right to the free exercise of religion;
WHEREAS, Justice KENNEDY, who wrote the majority opinion in Obergefell, wrote the following, for the same majority justices, just two years ago in U.S. v Windsor, invalidating a federal law defining marriage, in part based on the doctrine that state courts have virtually exclusive jurisdiction over family law matters:
“Regulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States.” (emphasis mine)
“The recognition of civil marriages is central to state domestic relations law applicable to its residents and citizens.” (emphasis mine)
“Each state as a sovereign has a rightful and legitimate concern in the marital status of persons domiciled within its borders.” (emphasis mine)
“The definition of marriage is the foundation of the State’s broader authority to regulate the subject of domestic relations with respect to the protection of offspring, property interests and the enforcement of marital responsibilities.” (emphasis mine)
“The states, at the time of the adoption of the Constitution, possessed full power over the subject of marriage and divorce and the Constitution delegated no authority to the Government of the United States on the subject of marriage and divorce.” (emphasis mine)
“The whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.”
“Consistent with this allocation of authority, the Federal Government, through our history, has deferred to state-law policy decisions with respect to domestic relations.”
“…[T]here is no federal law of domestic relations … .”
“In order to respect this principle, the federal courts, as a general rule, do not adjudicate issues of marital status even when there might otherwise be a basis for federal jurisdiction.” (emphasis mine)
“Federal courts will not hear divorce and custody cases even if they arise in diversity because of the virtually exclusive primacy of the States in the regulation of domestic relations” (emphasis mine)
“The significance of state responsibilities for the definition and regulation of marriage dates to the Nation’s beginning; for when the Constitution was adopted the common understanding was that the domestic relations of husband and wife and parent and child were matters reserved to the States.” (emphasis mine)
“Marriage laws vary in some respects from State to State.”
WHEREAS, the Tenth Amendment to the U.S. Constitution provides: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people;”
WHEREAS, Article III of the Constitution authorizes Congress to establish and determine the jurisdiction of all inferior federal courts, and to regulate and make exceptions to the appellate jurisdiction of the Supreme Court, which Congress has done on numerous occasions;
WHEREAS, despite the majority claim that the opinion was based on the Constitution, it appears that Obergefell was based neither on the Equal Protection Clause, nor the Due Process Clause of the 14th Amendment to the Constitution. According to Chief Justice Roberts, joined with Justices Scalia and Thomas, this newly invented right “has no basis in the Constitution or this Court’s precedent.”
WHEREAS, the majority opinion completely ignored the first amendment, with absolutely no mention of the constitutional guarantee of free exercise of religion and no consideration of the religious nature of marriage;
WHEREAS, this case continues a trend in which a divided Supreme Court has taken one side of a controversial issue in favor of expansion of Federal Courts’ power, and the Federal Government diminishing the right and role of state courts, state governments, and of the people;
WHEREAS, because the definition of marriage is the foundation of all family law, this Federal Courts’ assertion of jurisdiction over the definition of marriage thus amounts to a significant step in the federal takeover of marriage and family law, in accordance with the wishes of liberal-leaning commentators. After all, “if an unvarying social institution enduring over all of recorded history cannot inhibit judicial policymaking, what can?”
WHEREAS, Congress should, in accordance with and in pursuance of the Tenth Amendment to the U.S. Constitution, and generally in harmony with the law at the time of the adoption of the Constitution until this year, adopt legislation establishing that questions involving marriage and family law, including, but not limited to issues of marriage, community property, inheritance, divorce, alimony, child support, child custody, and the definition of marriage (with the proviso that states would not be authorized to allow marriage of other than two persons, nor would they be authorized to prohibit interracial marriage) and the recognition of marriage between states are matters reserved to the states;
WHEREAS, Congress should, in accordance with and in pursuance of Article III of the Constitution, and in harmony with a long line of U.S. Supreme Court Cases, adopt legislation removing from the jurisdiction of all inferior federal courts and from the appellate jurisdiction of the U.S. Supreme Court for all cases and controversies, questions involving marriage and family law, including, but not limited to issues of marriage, community property, inheritance, divorce, alimony, child support, child custody, and the definition of marriage and the recognition of marriage between states.
WHEREAS, Litigants in marriage and family law would continue to have an adequate, fair and traditional forum to litigate both marriage cases and their related issues, including constitutional issues, in the State Courts;
Therefore, be it Resolved that the Republican National Committee calls upon Congress, in accordance with and in pursuance of, the Tenth Amendment to the U.S. Constitution, to adopt legislation establishing that questions involving marriage and family law, including but not limited to issues of marriage, community property, inheritance, divorce, alimony, child support, child custody, and the definition marriage (with the proviso that states would not be authorized to allow marriage of other than two persons, nor would they be authorized to prohibit interracial marriage), and the recognition of marriage between states, are matters reserved to the states and are thus the exclusive province of the States;
Be it Further Resolved that, the Republican National Committee calls upon Congress, in accordance with and in pursuance of, Article III of the Constitution to adopt legislation removing from the jurisdiction of the lower federal courts and from the appellate jurisdiction of the U.S. Supreme Court for all legal cases and controversies, questions involving marriage and family law, including, but not limited to issues of marriage, community property, inheritance, divorce, alimony, child support, child custody, and the definition of marriage, and the recognition of marriage between states.
Be it Further Resolved that the Secretary of the Republican National Committee is authorized and directed to send this resolution to currently serving Republican Congressman, Senators, Governors, Secretaries of State and Attorneys General; in addition to the Republican State Committees of every State.
Here’s the Diana Waterman resolution:
Whereas the Republican National Committee adopted the Growth and Opportunity Project report in March, 2014 after the disappointing results of the 2012 Presidential election.
Whereas this RNC’s Growth and Opportunity Project report made several good recommendations for expanding the base of the Republican party through more effective messaging to constituencies important to the future success of the Republican party, including, but not limited to, Hispanics, women and millennials.
Whereas the RNC’s Report recognized the significant influence of younger voters to the success of Republican candidates; and recognized that 18-29 year old voters were the second largest block of voters to support President Obama in the 2012 election.
Whereas the Growth and Opportunity Project report identified that voters aged 18-29 expressed strong commitment to preserving equal rights and opportunity for all Americans, including all minority populations; and expressed concern that the Republican party was not committed to preserving equal rights and opportunity for all minority populations.
Whereas the U.S. Supreme Court in Obergefell v. Hodges, held that states must permit equal rights to marry for same sex couples.
Whereas declared Republican candidates for President have already responded to the Obergefell v. Hodges Supreme Court decision and each expressed their personal views on the decision.
Whereas the Republican National Committee primary purpose is to support our Republican nominee and win the White House.
Therefore, be it RESOLVED that the Republican National Committee recognizes and respects the right of Republican presidential candidates to express their individual positions on this Supreme Court decision and reiterates our commitment to support and promote our nominee, regardless of their expressed opinion on Obergefell v. Hodges.
Equality Act, contorted as a danger by anti-LGBTQ forces, is all but dead
No political willpower to force vote or reach a compromise
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.
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
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.
D.C. man charged with 2020 anti-gay death threat rearrested
Defendant implicated in three anti-LGBTQ incidents since 2011
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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