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Will Kennedy stick with gays in Masterpiece Cakeshop case?

All eyes on swing justice as oral arguments arrive next week

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Anthony Kennedy, Supreme Court, gay news, Washington Blade
Anthony Kennedy, Supreme Court, gay news, Washington Blade

Eyes will be on Justice Kennedy during the Masterpiece Cakeshop arguments. (Photo public domain)

When the U.S. Supreme Court hears oral arguments in the Masterpiece Cakeshop case on Tuesday, all eyes will be on U.S. Associate Justice Anthony Kennedy to ascertain whether the court will uphold Colorado law in the face of a First Amendment challenge that could enable the denial of services to LGBT people not just in that state, but throughout the country.

After all, Kennedy is the swing vote and will be asked to uphold LGBT rights yet again after a long career advancing them on the bench as the author of several milestone decisions: the 2003 ruling in Lawrence v. Texas, striking down state sodomy laws; the 2013 ruling in Windsor v. United States against the anti-gay Defense of Marriage Act; and the 2015 ruling for marriage equality nationwide in Obergefell v. Hodges.

But there’s an earlier decision on LGBT rights written by Kennedy, the 1996 decision in Romer v. Evans striking down Colorado’s Amendment 2, which may also weigh on Kennedy even though the legal principles at hand are different from the Masterpiece Cakeshop arguments.

In 1996, the U.S. Supreme Court found Amendment 2, which barred the Colorado Legislature or municipalities from enacting pro-gay non-discrimination ordinances, violated the Equal Protection Clause of the U.S. Constitution.

The Romer decision paved the way for Colorado to bar anti-LGBT discrimination in its anti-discrimination law. Now, 21 years after the ruling, anti-LGBT forces in the Masterpiece Cakeshop case are seeking a First Amendment right to refuse to make wedding cakes for same-sex couples despite the statute.

The petitioner in the case, Jack Phillips in Masterpiece Cakeshop, argues that making a wedding cake is inherently an artistic act of expression protected under the First Amendment, therefore he should be able to deny wedding cakes out of religious objections to same-sex couples like Charlie Craig and David Mullins, who sought to buy a cake for their wedding in 2012.

Both the Romer and Masterpiece Cakeshop cases originated in Colorado. While the Romer case asked the court whether the state could deny non-discrimination protections to LGBT people with Amendment 2, the Masterpiece Cakeshop case asks whether the First Amendment takes precedence over LGBT protections in a way that undermines the the Romer decision.

Jean Dubofksy, who successfully argued the Romer case in 1996 and is now a law professor at University of Colorado, Boulder, said a decision in favor of Masterpiece Cakeshop “would really undo the decision in Romer” because that ruling enabled Colorado to add sexual orientation to its public accommodations law.

“If you make an exemption to a person who says, ‘Well, I’m not going to provide rental housing, or I’m not going to provide various kinds of services, whether they’re medical services or grocery stores or whatever to a person because I don’t believe in gay marriage,’ then all of a sudden all of those protections are undone, and so if I were Justice Kennedy, I think I’d be concerned about that,” Dubofksy said.

One friend-of-the-court brief before the Supreme Court filed by the New York-based Kaplan & Company, LLP, on behalf of legal scholars on the separation of church and state cites the Romer decision in a section arguing a ruling for Masterpiece Cakeshop on First Amendment grounds would have no limiting principle.

“In another instructive case from Colorado, this Court rejected an effort to single out gays and lesbians for exclusion,” the brief says. “It would be peculiar for the same court that decided Romer to hold now that Colorado uniquely lacks the power to protect gays and lesbians in public accommodations. Petitioner’s rule must therefore be seen as a general theory that arises from the context of gay rights but would sweep much further.”

Joshua Matz, an attorney for Kaplan & Company, LLP, and former clerk for Kennedy, said Romer becomes relevant in the pending case before the Supreme Court because justices held in 1996 gay people can’t be singled out for discrimination.

“It would be strange if the same court that said in another case from Colorado were now to say that you can’t do that as a matter of your state constitution, but as a matter of the federal constitution, in fact, you can single out gay people and deny them rights either under the Free Exercise Clause or under the Free Speech Clause, but it turns out that that principle doesn’t apply anywhere else,” Matz said. “It would be the total inverse of Romer in a way that would really make no sense.”

LGBT rights advocates have argued a decision in favor of Masterpiece Cakeshop would result in sweeping discrimination not just for same-sex couples seeking wedding cakes, but LGBT people seeking a range of services — and perhaps other individuals who could face discrimination based on race or religion.

The Center for American Progress published an issue brief one week before the Masterpiece Cakeshop arguments titled, “The Harms of Refusing Service to LGBTQ People and Other Marginalized Communities,” which outlines the potential harms if the Supreme Court ruled in favor of Phillips.

“In reality, service refusals act like a one-two punch,” the brief says. “The discrimination itself causes harm that negatively affects both psychological and physical health and well-being, as shown by research and lived experiences of LGBTQ people and their families. Then, compounding that harm, the refusal can make it harder or impossible for LGBTQ people to access services at all, denying them full participation in the public square.”

Citing data from a January 2017 Center for American Progress report, the issue brief says in the event of being turned away from a retailer, a significant minority of LGBT people would have difficulty finding an alternative.

One in five said it would be “very difficult” or “not possible” to find the same type of service at a different retail store selling wedding attire, while in one in 10 said the same about finding the same type of service at a different bakery or florist.

The difficulty is compounded for LGBT people living in non-metropolitan areas. Four in 10 non-metro LGBT people said it would be “very difficult” or “not possible” to find the same type of service at a different retail store selling wedding attire, three in 10 non-metro LGBT people said the same about finding the same type of service at a different bakery and one in five said the same about finding service at a different florist.

The attorney for the American Civil Liberties Union representing the same-sex couple in the Masterpiece Cakeshop case, David Cole, may hit on this potential impact on LGBT people during oral arguments, as could Colorado Solicitor General Frederick Richard Yarger, who’s representing the state.

Meanwhile, Kristen Waggoner, the attorney for the anti-LGBT legal firm Alliance Defending Freedom, will rely on primacy of the First Amendment. U.S. Solicitor General Noel Francisco, who was granted time to speak by the Supreme Court, will also likely make similar arguments.

Determining whether Kennedy will seek to mitigate this kind of discrimination or side with Masterpiece Cakeshop is difficult. In addition to being the author of gay rights decisions, Kennedy has also ruled in favor of expansive views of the First Amendment, such as the 2010 decision in Citizens United that ruled campaign finance laws limiting contributions are unconstitutional because those activities amount to speech.

Moreover, Kennedy’s decision may determine the outcome of the case if the four liberal justices — Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan — side with the Colorado law and the four conservatives justices — Clarence Thomas, Samuel Alito, John Roberts and Neil Gorsuch — side with Masterpiece Cakeshop.

Dubofksy said she thinks Kennedy may vote to uphold Colorado’s Anti-Discrimination Law because other First Amendment libertarians “of whom Justice Kennedy apparently is particularly drawn to have stated baking a wedding cake amounts to conduct, not speech, as shown in a recent Washington Post article.

“It’s saying that wedding-cake makers are conducting themselves,” Dubofksy said. “That’s conduct, it’s not expression, and so, you draw the line at a wedding photographer who’s doing an expressive activity and a maker of a cake who isn’t required to be at the wedding and is really just making a cake.”

Additionally, Dubofksy predicted Kennedy will seek to uphold the Colorado law because he’ll want to uphold the impact of the Romer decision.

“There’s a good reason to be worried, but I’m not sure the court will take that sweeping of an approach because it would cut back on the sexual orientation discrimination cases in a way that could completely undermine Romer,” Dubofksy said. “I don’t see that happening.”

Walter Olson, a senior fellow at the Cato Institute’s Robert Levy Center for Constitutional Studies, said Kennedy may be in conflict in the case because of the history of rulings for gay rights and the First Amendment.

“He is on the one hand the great architect of the gay rights decision, but at the very same time, he is a very important justice on First Amendment issues, on both free speech and the role of religious liberty and religious conscience have also been very important to Justice Kennedy,” Olson said.

Olson, whose organization has filed a friend-of-the-court brief on behalf of Masterpiece Cakeshop, said Kennedy may lead the court to a “center territory” other than a sweeping ruling one way or the other.

“Neither side wants to inflict a culture war on the country; they’re trying to work out something without culture war,” Olson said. “That’s why it won’t surprise me if the court comes up with something a little muddled and a little bit hard to read because certainly Kennedy personally, and I think the court generally is trying to reach the center ground here.”

Matz said despite his history with Kennedy he doesn’t know which way the justice will rule, but also noted there are other ways the court could decide other than in favor of the Colorado law or a sweeping ruling for Masterpiece Cakeshop.

“If the court is going to rule for the baker, it could just rule for the baker and if its ruling has these extraordinarily disruptive and chaotic implications, it could simply refuse to address them and leave them for the future, which is often how the court does this,” Matz said.

As an example, Matz cited the ruling the Hobby Lobby case — a decision Kennedy joined that closely held for-profit companies need not comply with the contraception mandate under Obamacare under the Religious Freedom Restoration Act.

“Justice Alito’s majority opinion essentially said, ‘Well, under the Religious Freedom Restoration Act, preventing racial discrimination is always super compelling, but we’re not going to tell you in advance whether anything else is,” Matz said. “You can imagine the court doing something like that, which I don’t think would be prudent and would, in fact, unleash enormous uncertainty and confusion, and could harm not just gay people, but many others, but the Supreme Court doesn’t always tell you in advance how far it will allow its principles to go.”

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7 Comments

7 Comments

  1. lnm3921

    November 29, 2017 at 10:27 pm

    Well, you know the Fake POTUS through his AG is for the anti-LGBT baker! Trump is a disaster for the community! Dump that Trump!

    • CutiePie

      November 30, 2017 at 8:09 pm

      I don’t know why you would feel the need to drag the President into this (other than you still can’t get over the fact that Hillary lost) but I happen to be a Lesbian that is for the baker. I can’t understand why anyone would want to make someone do something that either they didn’t want to or felt uncomfortable in doing. Wouldn’t you rather know up front they didn’t want to bake your cake? Or would you rather take a chance on what “extras” might be added into that cake?

      • lnm3921

        November 30, 2017 at 10:57 pm

        The hateful obnoxious fake potus drags himself down especially with his partisan tweets. He’s proven himself to have an anti-glbt agenda. A pathological liar and a fraud! Hillary has nothing to do with it! Did you bash Obama while he was in office?

        Trump dragged himself into this by having sessions his AG support s position that faith justifies discrimination against glbt! He would not promote that position without trump’s tacit approval!

        So as a lesbian you still adore him despite the fact that he’s a womanizer who insults women and sexually objectifies them? What does he call Rosie O’Donnell or any woman that defies him? All you care about it seems is pushing a right-wing agenda! Pathetic and disgusting!

        As for the baker, i’ve Always said they should put up a sign saying they don’t want to serve gay couples. However you miss the greater point that if they can deny service to you on the pretext of faith in baking a cake then why not employment, housing, credit, health benefits at work or anything you can share with a heterosexual spouse? It’s a slippery slope that has no place in the secular and I shouldn’t have to navigate a mindfield trying to find someone who will accommodate me without prejudice when others do not.

        • CutiePie

          December 1, 2017 at 7:58 am

          And you also never answered that question on wether you would take a chance on eating that cake that you forced someone to make for you.

          • lnm3921

            December 1, 2017 at 1:19 pm

            We all take a chance whenever we eat out and someone else handles our food!

            You think of that, likely reflects what you do, and glaze over and refuse to fess up to everything else! Living in denial is expedient!

          • CutiePie

            December 1, 2017 at 1:31 pm

            I agree with you about the sign. But there are people out there that would still have issues with that. I don’t why my other statement wasn’t pisted because I sure didn’t call anyone names or say anything that wasn’t true. But I didn’t bash Obama when he was president. What was the sense in it. He won, so be it. To me there was better things to worry about.

  2. CutiePie

    December 1, 2017 at 2:17 pm

    Muslims refuse to bake our cakes also. I sure don’t see anyone’s panties getting in a wad about that. I wonder why???

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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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