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Gorsuch calls same-sex marriage ‘settled law’

‘I’ve tried to treat each case and each person as a person’

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Neil Gorsuch, gay news, Washington Blade

Judge Neil Gorsuch (Washington Blade photo by Michael Key)

Amid opposition from LGBT rights supporters to the confirmation of Neil Gorsuch to the U.S. Supreme Court, President Trump’s nominee referred to same-sex marriage as “settled law,” but was otherwise relatively tight-lipped about his views during his confirmation hearings.

Grilled by members of the Senate Judiciary Committee about his judicial philosophy, U.S. Circuit Judge Gorsuch on Tuesday maintained “equal justice under the law” — words enshrined at the top of the Supreme Court building — was a “radical” idea, but one he’d uphold, when asked about application of the law to LGBT people.

Pressed by Sen. Al Franken about marriage equality specifically, Gorsuch replied, “It is absolutely settled law,” but added, “there’s ongoing litigation about its impact and its application right now.”

When Sen. Richard Durbin (D-Ill.) asked the nominee about his views on LGBT people, Gorsuch seemed irritated and responded, “What about them?” and as Durbin sought to clarify, the nominee retorted, “They’re people.”

Asked by Durbin to point to a statement or decision favorable to LGBT people, Gorsuch offered his judicial philosophy that all individuals are entitled to equal treatment under the law.

“I’ve tried to treat each case and each person as a person, not a this kind of person, not a that kind of person — a person,” Gorsuch said. “Equal justice under law is a radical promise in the history of mankind.”

Durbin pressed Gorsuch to clarify whether that applies to sexual orientation, prompting Gorsuch to invoke the 2015 Obergefell v. Hodges decision in favor of same-sex marriage.

“The Supreme Court of the United States has held that single-sex marriage is protected by the Constitution,” Gorsuch said, using “single-sex marriage” terminology commonly cited in Europe, but rarely in the United States, to refer to marriage equality.

Durbin brought up LGBT people in the context of questioning of John Finnis, whom Gorsuch identified as a mentor during his time at Oxford University. A conservative one-time law professor, Finnis delivered a deposition in the early ’90s in favor of Colorado’s anti-gay Amendment 2, a law that prohibited cities from enacting non-discrimination ordinances based on sexual orientation. The Supreme Court struck down the law in the 1996 Romer v. Evans decision.

Referencing a passage in which Finnis compared same-sex relationships to bestiality and said antipathy toward LGBT people is based not just on religious reasons, but societal views, Durbin asked Gorsuch whether he was aware of his mentor’s statements.

“I know he testified in the Romer case,” Gorsuch said. “I can’t specifically recall the specifics of his testimony or that he gave a deposition.”

When Durbin sought more information from Gorsuch on the impact Finnis had on his views, Gorsuch referred to rulings he made on the bench as a member of the U.S. 11th Circuit Court of Appeals.

“I think the best evidence is what I’ve written,” Gorsuch said. “I’ve written or joined over 6 million words as a federal appellate judge. I’ve written a couple of books. I’ve been a lawyer and a judge for 25 or 30 years, and I guess I’d ask you, respectfully, to look at my credentials and my record.”

In another exchange with Franken, Gorsuch conceded the issue of same-sex marriage is “settled” law, but acknowledged subsequent litigation is ongoing on its impact and kept his cards close to his vest on his personal views.

Referencing Gorsuch’s help with former President George W. Bush’s 2004 re-election campaign in Ohio as a member of “Lawyers for Bush,” Franken noted that was the year the state had an anti-gay amendment on the ballot and asked the nominee whether same-sex marriage should be subjected to popular vote.

“Senator, I don’t recall any involvement in that issue during that campaign,” Gorsuch said. “I remember going to Ohio.”

When Franken asked the nominee if he was aware of the marriage issue in 2004, Gorusch replied, “Certainly, I was aware about it.”

Pressed further by Franken for his views, Gorsuch added, “Any revelation about my personal views about this matter would indicate to people how I might rule as a judge. Mistakenly, but it might, and I have to be concerned about that.”

When Franken pointed out the U.S. Supreme Court has ruled in favor of same-sex marriage nationwide and asked Gorsuch how his views have changed since 2004, the nominee remain tight-lipped.

“My personal views, if were to begin speaking about my personal views on this subject, which every American has views on, would send a misleading signal to the American people,” Gorsuch said.

The Minnesota Democrat sought to move on to another topic as Gorsuch said he wanted to finish his thought about not being able to disclose personal view, but Franken said, “You’ve given a version of this answer before. I understand.”

The issue of marriage equality came up later in the hearing when Sen. Mazie Hirono (D-Hawaii) brought it up when asking Gorsuch about his views on whether the Constitution protects intimate and personal choices. Gorsuch again declined to express his personal views, but underscored the importance of the Obergefell decision as precedent.

“Obergefell is a precedent of the United States Supreme Court,” Gorsuch said. “It entitles persons to engage in single-sex marriage. That’s a right that the Supreme Court has recognized. It is a precedent of the United States Supreme Court entitled to all the deference to precedence of the United States Supreme Court, and that’s quite a lot.”

Much of the concern over Gorsuch concerns his subscription to the judicial philosophy of originalism in which jurists seek to determine lawmakers’ original intent of enacting statutes before ruling on them, a practice criticized as a means to deny justice to minority groups, including LGBT people. The late U.S. Associate Justice Antonin Scalia advocated that judicial viewpoint in his dissents to major gay rights cases, such as the U.S. Supreme Court decision in favor of same-sex marriage.

Sen. Amy Klobuchar (D-Minn.) sought clarification from Gorsuch on originalism, referencing, among other rulings, the 1996 Virginia Military Institute decision, which determined the state’s exclusion of women from the school violated the right to equal protection under the 14th Amendment. Scalia, in his dissent, wrote the decision was creating a new Constitution, not keeping to the original meaning of the U.S. Constitution.

Asked by Klobuchar whether the ruling was based on the original meaning of the Constitution, Gorsuch kept his views to himself and said, “The majority in that case argued that it was.” Gorsuch repeated his view the concept of equal protection under the law “is quite significant.”

When the Minnesota Democrat asked Gorsuch whether he’d apply that approach to minority groups, such as women, LGBT people and racial minorities, Gorsuch replied, “A good judge applies the law without respect to persons. That’s part of my judicial oath.”

Seemingly unsatisfied with the response, Klobuchar pressed Gorsuch further, prompting him to reply, “I don’t take account of the person before me. Everyone is equal under the eyes of the law.”

The reluctance of Gorsuch to offer his views during the confirmation process is typical of nominees seeking confirmation to the Supreme Court. As other nominees have done in the past, Gorsuch said disclosure of personal views or the appropriateness of a particular decision would suggest a bias on those issues if they came to him after winning confirmation.

Other decisions on which Gorsuch had no comment included the Roe v. Wade decision, the Heller decision affirming the Second Amendment right to own a firearm in D.C. and the Citizens United case allowing unlimited contributions from corporations and unions to political campaigns.

On rare occasions during the hearing, Gorsuch was more direct. Referencing Trump’s pledge to appoint only justices who’d overturn a woman’s right to have an abortion, Sen. Lindsay Graham (R-S.C.) asked Gorsuch if he made any private commitments to Trump to overturn Roe v. Wade, but the nominee replied he didn’t and was not asked to do so.

“I would have walked out the door,” Gorsuch said. “That’s not what judges do.”

A group of 21 LGBT organizations led by Lamdba Legal signed a joint letter to the Senate Judiciary Committee last week declaring their opposition to the nominee and urging rigorous questioning during the confirmation process.

Although Gorsuch has never ruled on the issue of same-sex marriage, the nominee wrote a scathing piece in 2005 for the National Review titled “Liberals & Lawsuits” excoriating the progressive movement for seeking advancements in the courts. Two years after the Massachusetts Supreme Court ruled in favor of same-sex marriage, the article identifies marriage equality as an issue that should be settled outside the judicial system.

When asked by Sen. Orrin Hatch (R-Utah) to respond to criticism over the op-ed, the nominee said he believes the courts, in fact, are a “very important place for the vindication of civil rights,” but in many cases they aren’t appropriate for change.

“I can report to you, having lived longer, as I did report to you in 2005 that the problem lies on both sides of the aisle, that I see lots of people who resort to the court more quickly than perhaps they should,” Gorsuch said.

Much of the discontent over Gorsuch is also related to his 11th Circuit decision in the Hobby Lobby case, when he ruled the Religious Freedom Restoration Act affords “religious freedom” protections to not just people, but corporations, and the business chain could refuse health insurance to female employees that covered contraception. Gorsuch joined a similar decision against the Obamacare contraception mandate in the Little Sisters of the Poor case.

At a time when many businesses and individuals are asserting civil rights laws prohibiting anti-LGBT discrimination unfairly penalize their religious beliefs, some LGBT rights supporters fear Gorsuch could apply that “religious freedom” reasoning in those cases to institute carve-outs for anti-LGBT discrimination.

Under questioning from Durbin, Gorsuch walked through his reasoning in the Hobby Lobby case, maintaining his ruling is based on the belief the U.S. government could make other accommodations for employees seeking contraception other than employer-based health coverage.

“Does the government have a compelling interest in the ACA in providing contraceptive care? The Supreme Court of the United States said, ‘We assume yes. We take that as given,” Gorsuch said. “The question becomes is it narrow tailored to require the Green family to provide it. The answer there the Supreme Court reached in precedent binding on us now, and we reached in anticipation, is no, that wasn’t as strictly tailored as it could be because the government had provided different accommodations to churches and to other religious entities.”

Other LGBT criticism over Gorsuch relates to his decisions on transgender rights. In 2015, Gorsuch joined an 11th Circuit decision against a transgender inmate who alleged she was denied transition-related hormone therapy and unfairly housed in an all-male facility. In 2009, Gorsuch also joined an unpublished opinion finding the provision against sex discrimination under Title VII of the Civil Rights Act of 1964 doesn’t apply to transgender people.

Jim Obergefell, the lead plaintiff in the case that brought same-sex marriage nationwide, wrote in an op-ed for Time magazine on the second day of the Gorsuch hearings he opposes the nominee on the basis that he could undermine LGBT rights, including same-sex marriage, at the Supreme Court.

Noting the narrow 5-4 marriage decision was written by U.S. Associate Justice Anthony Kennedy, who was only confirmed to the Supreme Court after the Senate rejected President Reagan’s nomination of anti-LGBT judge Robert Bork, Obergefell wrote, “we must be as cautious as we were in 1987.”

“As during the Bork hearings, we must again demand that the next justice appointed to the Supreme Court of the United States continue to uphold our Constitution — including equal protections for LGBTQ people under the law,” Obergell wrote. “Donald Trump, in nominating Neil Gorsuch, noted his desire to pick a justice in the mold of Antonin Scalia. That should send chills down the spine of everyone who cares about equality and civil rights.”

Eric Lesh, fair courts director for Lambda Legal, said Gorsuch’s hearing did nothing to allay concerns about the his potential confirmation to the Supreme Court because he “refused to answer very fundamental questions.”

“He kept dodging and weaving and running away from his record, which is clearly hostile to the rights of LGBT people and people living with HIV,” Lesh said. “So, we need answers, and that doesn’t change Lambda Legal’s conclusion that based on a comprehensive review of his record, his views on civil rights issues, on LGBT equality are fundamentally at odds with the notion that our community is entitled to equal dignity, justice, liberty under the law.”

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Comings & Goings

McCarty named director of partnerships at Universe

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Steven McCarty

The Comings & Goings column is about sharing the professional successes of our community. We want to recognize those landing new jobs, new clients for their business, joining boards of organizations and other achievements. Please share your successes with us at: [email protected].

Congratulations to Steven McCarty on his new position with Universe, as Director of Partnerships. Universe supports movement organizations, labor unions, and Democratic campaigns, with the software they need to win. On accepting the new position he said, “I’m most excited to take my years of campaign and technology experience to down-ballot Democrats across the country as we fight to preserve our Democracy this election cycle.” 

Prior to this, McCarty was Business Development + Partnerships Lead, at STAC labs (State Technology Acceleration Collaborative), where he spearheaded strategic business development initiatives, expanding STAC labs’ partner network by 400% with the launch of the Progressive Tech Index and doubling DemLaunch user base from four to 11 states within a year. Prior to that he was president at The Kiwanis Club of Washington, D.C.; Senior Customer Success Manager at Crowdskout; Vice President at Circle K International, Indianapolis, Ind.; and a summer fellow at Michigan State AFL-CIO, Lansing, Mich. 

He has done a lot of volunteer work, including being an elected Advisory Neighborhood Commissioner for ANC 2G04, representing Blagden Alley, Naylor Court, and Shepherd Court. He received a Youth Champion Award for outstanding support to LGBTQ Youth, from SMYAL; and was named a Kiwanis Member of the Year, Kiwanis Club of Washington, D.C.

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District of Columbia

Cherry Fund files lawsuit  against Republiq Hall

LGBTQ nonprofit says breach of contract led to $137,000 in lost revenue

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Cherry Fund claims Republiq Hall canceled a contract for one of its popular events. (Washington Blade file photo by Michael Key)

Cherry Fund, the D.C.-based nonprofit organization that has raised money for HIV/AIDS, mental health, and LGBTQ organizations for the past 27 years, filed a lawsuit in D.C. Superior Court on May 31 charging Republiq Hall, a large entertainment venue in Northeast D.C, with abruptly and improperly cancelling Cherry Fund’s reservation to rent the hall for an April 6 event expected to draw 2,000 paid guests.

The event was to be one of several circuit dance parties that Cherry Fund produces as part of its annual Cherry weekend in April, which has raised several million dollars for LGBTQ related organizations since the Cherry weekend  events began in 1996.  

The lawsuit, which charges Republiq Hall with breach of contract, says the contract signed by the two parties in January called for Cherry Fund to pay Republiq Hall an initial deposit of $3,500 on Jan. 10, 2024, to be applied to a nonrefundable rental fee totaling $7,000 for the one-time use of the space on April 6.

Republiq Hall is located in a large former warehouse building at 2122 24th Place, N.E., near the intersection of Bladensburg Road and New York Avenue. 

According to the lawsuit, under the contract, Cherry Fund “was responsible for promoting the event, booking talent, and managing ticket sales,” with Cherry Fund to “retain all door fee revenues and a percentage of the net bar sales.”

The lawsuit states, “On February 28, after Plaintiff had already begun promoting the event and booking talent, the Defendant unilaterally and without just cause demanded an additional $9,000 from the Plaintiff. When the Plaintiff refused to pay the additional amount, the Defendant cancelled the reservation.”

 As a result of Republiq Hall’s action, the lawsuit states, Cherry Fund was “forced to book an alternative venue with significantly less capacity, resulting in substantial financial losses.” 

It says as a direct result of the alleged breach of contract, Cherry Fund “suffered financial damages in the amount of $130,000 in lost door fees and $7,000 in a lost percentage of the net bar sales that were estimated to be collected on the date of the event.”

A spokesperson for Republiq Hall did not respond to a phone message from the Washington Blade requesting a comment and a response to the lawsuit’s allegations.

Court records show that Superior Court Judge Juliet J. McKenna, who is presiding over the case, scheduled an initial hearing for the case on Sept. 6. McKenna issued an order providing guidance for how a civil litigation case should proceed that includes a requirement that Republiq Hall must file a response to the lawsuit within 21 days of being officially served a copy of the lawsuit complaint.

Sean Morris, the Cherry Fund president, issued a statement expressing disappointment over the developments leading to the lawsuit.

“Our organization, powered by volunteer efforts, relies on our annual event to fundraise for local non-profits,” he said. “This abrupt and unforeseen demand, and subsequent cancellation, has severely affected our ability to support vital community programs focused on HIV/AIDS, mental health, and LGBTQ+ advocacy,” Morris says in his statement.

The lawsuit concludes by stating, “The Plaintiff, the Cherry Fund, respectfully requests the following relief: Direct compensatory damages for the lost benefits it was entitled to under the terms of the contract; Restitution for the benefits retained by the Defendant in unjust enrichment; Reasonable attorney fees and costs of this action; and Any other relief this court deems just and proper.”

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Maryland

Silver Spring Pride sign rebuilt in memory of beloved neighbor

GoFundMe campaign has raised more than $4,000

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Tony Brown's neighbors help repaint the Pride sign his late partner created in their Silver Spring, Md., neighborhood. (Photo courtesy of Molly Chehak)

Residents of Silver Spring’s Rosemary Hills neighborhood have come together to rebuild a Pride sign. 

The sign was constructed in June 2020, and was meant to stay in place throughout Pride Month. Neighborhood residents, however, requested it stay up past its intended month-long display, and has remained in place for more than four years. 

The sign spelling LOVE is at the neighborhood’s entrance between Sundale and Richmond Streets. It was made from plywood and the O was painted in the colors of the Pride flag.

“We wanted to take it down, but we just felt it was not ours anymore and belonged to the neighborhood.” Tony Brown told the Washington Blade during a telephone interview. “It was a positive thing for the neighborhood and began to take on a life of its own.” 

Brown and his partner, Mike Heffner, designed the sign and said the Black Lives Matter movement inspired them to create it as a strong symbol of an accepting community.

The sign was vandalized numerous times last fall, resulting in neighborhood residents taking turns repairing it. Brown and his partner could not do the repairs themselves because Heffner was fighting Stage 4 lung cancer.

Heffner passed away on Oct. 6, 2023.

A GoFundMe page was set up to help raise funds for the replacement Pride sign, and it has raised more than $4,000. The replacement sign is more permanent and made of metal.

“I can’t speak for the neighborhood overall, but people who knew Mike I think are happy that we were able to honor his memory with this sign because this sign is so him,” Molly Chehak, a friend who lives next door to Brown, told the Blade. “He (Heffner) was an outgoing super social (person) who just made you feel good the way this sign does. It’s a perfect tribute to him.” 

Chehak and other neighbors created the GoFundMe account.

Heffner’s family and his neighbors are still working to rebuild the Pride sign. It has become a memorial to Heffner.

“We wanted to do one that was clearly a Pride reference,” said Brown, noting the L is a fully painted Pride flag that spirals across the entire letter. 

“For the O we wanted to do something reminiscent of times in the past, a throwback to the 60’s and 70’s so it’s a hippie montage of flowers and butterflies,” he said. 

Brown described the V as being colorful, nonbinary people hugging each other with the idea that love is more than what one may see. 

“During COVID, he had started painting rocks and putting kind and fun messages on them leaving them around places as sort of a pay it forward Karma and so the E is basically that stylized writing and to embrace a bunch of ways we embrace love,” he said. 

The final letter had the phrase “love is love” written repeatedly in various handwritings to pay homage to Heffner and what he did for his neighborhood during the pandemic. Brown’s four daughters — one of whom is a professional artist — and their friends designed it.

The landscape around the sign has also been transformed with rocks that honors Heffner’s love for Rosemary Hills and his passion for rocks.

Chehak also said Heffner always wanted a bench, and neighbors are looking to install one soon next to the Pride sign.

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