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The unclear future of LGBTQ rights at the Supreme Court

Is there reason to hope the justices will surprise us?

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marriage equality, Supreme Court, gay news, Washington Blade
marriage equality, Supreme Court, gay news, Washington Blade

(Washington Blade file photo by Michael Key)

The Supreme Court’s new term began Oct. 1. The justices have not yet accepted any cases squarely addressing LGBTQ rights questions; however, numerous appeals raising key issues for our community are waiting in the wings. As Brett Kavanaugh settles into his new position on the Court after a fractious confirmation process, many in the LGBTQ community are wondering which, if any, pending cases the Court will choose to hear and, if it does take on any such cases, how it will rule.

There’s no question that there’s a lot at stake.

There are four petitions now pending before the Court asking it to decide whether federal sex discrimination laws encompass discrimination based on sexual orientation or gender identity. If the Court agrees to hear any of these, its ruling could determine whether LGBTQ people are protected under current federal laws prohibiting discrimination in employment, education, housing and credit.

Two cases challenging President Trump’s attempt to bar transgender people from the military are at the federal courts of appeals, one step from the Supreme Court. One of them—Lambda Legal’s and OutServe-SLDN’s Karnoski v. Trump case—is being argued to the Ninth Circuit on Oct. 10.

Several cases already on appeal could again put before the Court as to whether there are circumstances in which businesses have a constitutional right to discriminate. In one, a Hawaii bed & breakfast owner is expected to soon petition the Court to review a decision that rejected her claim of a right to refuse a lesbian couple lodging.   

Three suits questioning whether schools can bar transgender students from restrooms that match their gender identity also are now on appeal. So, too, is a case asking whether the city of Philadelphia acted properly in terminating its contracts with two religiously affiliated foster care agencies that refused to abide by the city’s sexual orientation nondiscrimination policies.

Accordingly, it could be a big year for LGBTQ Americans in the highest court of the land—but it might not be. The Supreme Court doesn’t have to consider any of these cases. Out of approximately 7,000 requests that the Court review lower court decisions each year, the Court agrees to hear about only 80, or slightly more than one percent of them.

Brett Kavanaugh’s recent confirmation brings even more uncertainty to the Supreme Court this year. Lacking a record of LGBTQ rulings, we still do not know for sure how Kavanaugh will rule on sexual orientation or gender identity questions. He has a record of ruling conservatively on many issues. Nonetheless, during his confirmation hearing, he repeatedly quoted from an opinion authored by his mentor, Justice Anthony Kennedy, that, “The days of discriminating against gay and lesbian Americans or treating gay and lesbian Americans as inferior in dignity and worth are over.”

Even if the new Justice Kavanaugh does end up siding with members of the Court who have dissented from the Court’s prior landmark victories for LGBTQ rights in any cases the Court agrees to hear, it may be possible to swing Chief Justice Roberts to join with the four justices who have ruled in favor of LGBTQ people in the past. Roberts previously voted with those justices in decisions rejecting a challenge to the Affordable Care Act, allowing cities to sue banks that targeted people of color for high-risk loans, and restricting the police’s ability to obtain suspects’ cellphone location data without a warrant. And notwithstanding Roberts’ criticism of the Court’s marriage equality decision, he subsequently voted to summarily reverse the Arkansas courts’ judgment that the state did not have to list both same-sex spouses’ names on their children’s birth certificates.

The Chief Justice’s votes sometimes reflect institutionalist concerns with preserving the Court’s legitimacy and stature. That impulse may cause him to decline to overturn certain prior precedents. It also may lead him to vote against hearing cases that may be especially divisive or to find ways to avoid particularly controversial outcomes that would subject the Court to criticism. That’s especially likely to weigh on his mind because of how partisan Justice Kavanaugh’s confirmation turned out to be.

There also are important cases already on the Court’s docket that go beyond LGBTQ concerns. For example, the Court has agreed to hear Gamble v. United States. That appeal asks the Court to overturn its precedent that the Constitution’s bar on double jeopardy—which prohibits prosecuting someone twice for the same offense—does not bar separate prosecutions for violation of state and of federal law based on the same conduct. The issue is important because, if that precedent were reversed, a presidential pardon of those indicted for federal crimes could preclude states from prosecuting them as well.

Time will tell. In the meantime, it’s imperative that we not give up hope and that we not put all our apples in the Supreme Court basket.

 

Jon Davidson is chief counsel for Freedom for All Americans.

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The beginning of the fall of Trump

Epstein files, alleged war crimes taking a toll

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A scene from D.C.'s High Heel Race this year. (Washington Blade file photo by Michael Key)

Trump saw the writing on the wall with regard to releasing the Epstein files. He tried to get ahead of the parade by asking Republicans to vote for release, instead of facing his biggest embarrassment when they were going to anyway. Then there were the major Republican losses in the last election. Now House Armed Services Committee Chair Mike Rogers (R-Ala.), and Senate Armed Services Committee Chair Roger Wicker (R-Miss.), and their Democratic ranking members, are investigating the Pentagon after it was reported Secretary of Defense Pete Hegseth potentially committed a war crime with regard to the bombing of boats suspected of running drugs. It really seems we are seeing the beginning of the fall of Trump. 

That’s not to say the felon doesn’t continue to have the power to screw the country, and the world. He does. Those around him like Vought at OMB, and his personal Goebbels, Stephen Miller, will push him harder to advance Project 2025 before the mid-term elections. There are so many things in that 900-page document that have yet to be perpetrated on the American people. I am sure the felon doesn’t know half of them, as one can be quite confident, he never read it. Each day we wake to some new outrage by the grifter in the White House. His family cutting deals with the Saudis, upping and lowering tariffs as the mood strikes. Not in a rational way because they have already proven to be a disaster for the American people. Then the continuing destruction of our healthcare system by RFK Jr. 

Then the felon threatens Venezuela, and illegally declares the airspace around it closed. The felon threatens Indiana Republican legislators who don’t go along with his request for redistricting, with primaries. A judge in Texas rules their redistricting is illegal, though the Trump Supreme Court did overrule that. He calls Marjorie Taylor Green a traitor, then his MAGA cult threatens her life. She resigns. He does the same to Democratic legislators who made a video telling the military they do not have to obey unconstitutional orders. The felon called that “SEDITIOUS BEHAVIOR, punishable by DEATH!” He went further and reposted a Truth Social post that read “HANG THEM GEORGE WASHINGTON WOULD !!” This now has his MAGA base threatening their lives. They are not resigning. All of this adding to the feeling his acts, and statements, clearly reek of desperation. 

He continues to blame Biden, nearly a year after taking office, for his own failures. He blames Biden for not vetting the Afghani immigrant who shot the two National Guard members from West Virginia patrolling D.C. This, while it was his administration, that granted him asylum without any vetting, in April.

I find it incomprehensible there are still some people, who can’t, or don’t, want to understand attacking Democrats for what is going on today, makes no sense, when the felon controls the White House, Congress, and the Supreme Court. Staying home, or voting for third party candidates, with no chance of winning, is like voting for the Republican. In the recent elections we began to see those who don’t like what is happening, wake up. They realize only a vote for a Democrat will make a difference. We saw that across New York, New Jersey, Pennsylvania, Virginia, and Georgia. 

As we approach the midterm elections, I plead with those who are not there yet, look at history, count how many independents were ever elected to Congress. In our system that rarely happens. Wishful thinking doesn’t win elections. Yes, I want Congress to look younger. I am happy Nancy Pelosi (D-Calif.), and Jerald Nadler (D-N.Y.), among others, have retired, allowing for primaries in their districts. I could name a few more in safe Democratic seats who I hope do the same. While not in office, young people should appreciate those who retire, might still have some wisdom from their years of service to share. 

The young aren’t compelled to listen, yet someone like Pelosi, with her vast experience, could help a new person as they run to win, and then navigate the halls of Congress. If you look at all the demonstrations against the felon, and his administration, the age of the people demonstrating often skews older. Those like me have the time to demonstrate, and we do. We want to see the felon fall, and will work hard to make it happen. While too old to run for office, I will continue to voice my opinions. I will even endorse candidates I like. I suggest to all candidates it is important to do more than talk in generalities. You need an issues section on your website. Tell voters what you will do when elected. What bills will you introduce, which ones will you support. That may be old-fashioned, but it’s still important. And definitely be clear which party you will support if elected. I know, another old-fashioned idea. 

As the felon continues to lose the support of the American people, I see young people begin to move to the Democratic Party, realizing if they step up to be counted, it will make a difference for their future. If this trend continues, I believe we are headed toward a better time in America. 


Peter Rosenstein is a longtime LGBTQ rights and Democratic Party activist. 

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Tammy Bruce, Trump’s lesbian nominee for deputy UN ambassador. Just say no!

Senate Foreign Affairs Committee advanced former State Department spokesperson’s nomination this week

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Tammy Bruce speaks at the Conservative Political Action Conference in 2015. (Washington Blade photo by Michael Key)

One evening In the late 1990’s, I drove over to the home of my late friend, Jim Hormel, to review a number of countries to which he was being considered by the Clinton administration to serve as our country’s first openly gay ambassador. It was a very big deal. Secretary Madeleine Albright would eventually swear him in during a teary-eyed ceremony, but only after a recess appointment in order to avoid an ugly, partisan fight in the Senate over Jim’s sexuality. 

Fast-forward to today, and our country has had over 30 openly gay male ambassadors — both career diplomats and political appointees — and one, single lesbian at an ambassador-ranked position at the Asian Development Bank, Chantale Wong. (Ambassador Wong is also one of only two people of color among the openly gay or lesbian ambassadors.) I am very proud to have helped convince Amb. Wong to come out of retirement to take on that important role, because the time was right for someone with her passion, experience, and commitment to push for inclusive development policies at a major international financial institution. In fact, she had occupied the position once before as acting executive director of the ADB under the George W. Bush administration, and used that expertise to successfully champion an inclusive development policy that explicitly names sexual orientation and gender identity as a non-discrimination category, as well as other programs that benefit community members. But getting through the Senate confirmation process was not an easy task before this second Trump administration, especially for those without the resources or connections to deploy their own personal lobbyists, even when the candidate was superbly qualified. 

So, a few months ago, when I read that Tammy Bruce was nominated by President Trump to be one of our ambassadors to the United Nations, I choked on my coffee. I couldn’t believe that our second ever openly lesbian ambassador would be a far-right, anti-trans, anti-Muslim, Trump loyalist. But, maybe the choice was not so surprising after all, which then says a lot about the Biden administration’s priorities. Trump was also the president who made good on the Human Rights Campaign’s longtime push for an openly gay G7 ambassador, with the appointment of another far right, anti-Muslim, gay ambassador, Richard Grenell to Germany. These two people alone should convince any sane human why identity-politics alone has severe limits. 

After 16 years of submitting short lists of qualified lesbian-identified and trans-identified candidates to the White House Office of Personnel Management to be considered for appointed ambassador positions, and also simultaneously trying to support senior, career diplomats  who are lesbian or trans to advance in their careers, I was particularly frustrated and enraged. While I believe it’s time to move beyond identity politics, I also deeply believe that diverse representation matters. Not tokenization (and not donor-purchased ambassadorships) but exceptionally well-qualified, diverse American people, who represent the actual plurality of our nation, which makes us stronger. The foreign affairs arena, in particular, is overly white and male dominated. Think what you may about “DEI,” but a diplomatic corps that doesn’t reflect the diversity of our nation doesn’t make our country stronger — it actually makes us less globally relevant and decreases our understanding of this rapidly changing, multi-polar world. 

The 34:1 ratio of gay men to lesbians among our nation’s openly queer ambassadors that exists today is infuriating to me as a woman, a feminist, a lesbian, and as a human rights leader. And yet, the nomination of Tammy Bruce, infuriates me even more. She is an extremist ideologue who uses her platform for hate. 

Bruce’s hate centers on her anti-Muslim extremism. According to CNN’s Andrew Kaczynski and Em Steck, “Trump’s pick for deputy UN job questioned [the] loyalty of American Muslims … (Bruce) for years promoted inflammatory, anti-Muslim and conspiratorial claims, including suggesting that former President Barack Obama was a secret Muslim bent on harming America. A CNN KFile review of Bruce’s blog posts, social media posts, columns and radio commentaries starting in the early 2000s shows a pattern of demeaning language about Muslims, including suggesting that American Muslims needed to prove their loyalty after the Sept. 11, 2001, terrorist attacks … Bruce didn’t respond for comment.” 

When nominating Bruce, Trump said, “after being a liberal activist in the 1990s, (Bruce) saw the lies and fraud of the Radical Left, and quickly became one of the strongest Conservative voices on Radio and Television.” Bruce wrote the book “The New Thought Police,” aiming to “expose the dangerous rise of left-wing McCarthyism.” In addition to poking fun at feminists, anti-racists, and progressives, she has particularly promoted misguided anti-trans ideology, such as championing the cause of Chloe Cole, a “detransitioner” who had top surgery at age 17. Bruce uses this outlier case to justify legislation to ban trans health care in the United States.

The extremist right loves to scapegoat trans people and their right to appropriate, life-saving health care. Confirming Ms. Bruce for this role as a U.S. representative at the United Nations, with all of her whacky and fringe ideology, is incredibly dangerous for U.S. citizens and for others throughout the world. The person who represents the United States at the United Nations must be able to talk to every other country representative, in order to be effective. Ms. Bruce will be viewed with suspicion and avoided because of her past statements and views. Again, such extremism has no place in our government or representing our country. In her confirmation hearing, Ms. Bruce called President Trump’s leadership at the United Nations “inspirational.” She refused to call the massacre in Sudan a genocide. She didn’t seem to understand what leverage the U.S. might have with the UAE to stop arming this genocide. She deferred multiple times to serving this President in whatever foreign policy aims he has. In this era of increasing authoritarianism, we do not need more obsequious servants to King Trump. Now that Ms. Bruce has been voted out of committee, this proud lesbian, respectfully requests all U.S. Senators to not confirm Ms. Bruce for U.S. Deputy Ambassador to the United Nations.

Julie Dorf is co-chair of the Council for Global Equality.

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Victory Fund continues to shun me and my place in LGBTQ history

Before Buttigieg, my presidential campaign made headlines

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Fred Karger attends a campaign event in New Hampshire in 2012. (Washington Blade file photo by Michael Key)

I am honored to be speaking this weekend at the National Council for the Social Studies Annual Conference (NCSS), made up of 5,000 teachers from across the county. I will be talking about my history-making campaign for president back in 2012, when I ran as the first openly gay major party candidate to do so. 

I will be joining many other prominent featured speakers, including Supreme Court Justice Ketanji Brown Jackson, Washington, D.C. Episcopal Bishop Mariann Edgar Budde, Dr. Richard Haas, and House Minority Leader Hakeem Jeffries. This engagement was arranged by the prestigious History UnErased, and I will talk about my roller coaster run for president 

It was a hard-fought, two-and-a-half year, full-time campaign in the Republican primaries. I appeared on six state ballots, gave hundreds of speeches, did thousands of media interviews and attracted thousands of volunteers, donors, and voters. In fact, when the primaries ended, I had received more votes than two former governors, Jon Huntsman, Jr. (Utah) and Gary Johnson (New Mexico). 

My constant message to the LGBTQ community was, you can do anything you want to do in life, even run for president of the United States. I heard from so many people young and old that I was giving them newfound hope.

Eight years later, when openly gay Mayor Pete Buttigieg ran for president, I endorsed him in February 2019, served on his National Finance Committee, and did a lot of surrogate work on his behalf. We developed a strong bond, being the only two openly gay candidates to ever run for president. He told me, “You’re a trailblazer who made it a little easier for those who follow your path.”

I applied pressure on many of the nation’s largest LGBTQ organizations to endorse Pete early, when it would make a difference. I wrote op-eds in Newsweek and the Advocate urging the LGBTQ Victory Fund, HRC, The Task Force and many others to support Pete. Eventually the reluctant Victory Fund came around and endorsed Pete at a big splashy campaign event in Brooklyn on June 28, 2019 during WorldPride. 

That early support from the nation’s sole organization to help propel openly LGBTQ candidates to victory, made a huge difference in Pete’s success.

I was not as fortunate. One of the first meetings I had was with Chuck Wolfe, the then head of the Victory Fund in January 2010. He blurted out, “we’re not going to help you!” And true to his word, they actually worked to hinder my historic run. They made me submit a number of applications including a 56-page campaign plan and budget. Several months after delivering it, Chuck told me they would not even put my endorsement to a vote. “You don’t want to know,” he told me. “Yes, I do,” I replied.

I have met with or spoken to all of his successors at the Victory Fund, offering my help and asking for some sort of recognition of my historic campaign. Finally in 2018, after a lot of negotiations, then-President Annise Parker gave me one sentence in their Under Our History section on their website. 

I have been an LGBTQ activist and major donor since I worked closely with David Mixner to defeat the Briggs Initiative in 1978, which would have outlawed gay teachers in California. I spent 30 years as a political consultant. Since 2008, I became the only one, through my organization Californians Against Hate, to fight back against the mega donors to California’s Proposition 8 and other anti-same-sex marriage campaigns. 

I shamed millionaires and billionaires and even the all-powerful Mormon Church, who funded and ran all these hateful campaigns. The New York Times published a full page column three years ago on all I did to help gay marriage become the law of the land, “Cancel Culture Works. We Wouldn’t Have Marriage Equality Without It.” 

So, I’ve earned my stripes. That is why I find it ironic that while I am speaking to the 5,000-member NCSS gathering in Washington, the same weekend that the LGBTQ Victory Fund is holding its annual Victory Institute gathering a few blocks away, while they continue to shun me and my rightful place in history.


Fred Karger is the first openly gay major party candidate to run for president.

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