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‘Skim milk’ marriages not enough: Ginsburg remembered as LGBTQ ally

Attorneys who argued gay rights cases recall late justice’s influence



Ruth Bader Ginsburg said same-sex marriages under DOMA were like “skim milk”(Washington Blade photo by Michael Key)

As the nation mourns the passing of former U.S. Associate Justice Ruth Bader Ginsburg, attorneys who argued major LGBTQ cases before the U.S. Supreme Court remember her for interceding on behalf equality under the law for LGBTQ people.

From making a classic quip that same-sex marriages under the anti-gay Defense of Marriage Act were “skim milk” marriages to aiding lawyers under fire from conservative jurists, lawyers in these cases say she made her presence known in efforts to advance LGBTQ rights.

Mary Bonauto, a civil rights attorney at GLBTQ Advocates & Defenders who in 2015 argued for same-sex marriage before the Supreme Court in Obergefell v. Hodges, said a key moment for her was when Ginsburg interrupted questioning from skeptical judges.

Amid questions to Bonauto about the historical and cross-cultural practice of legal marriage between different sex couples, suggested there were rational and practical reasons for limiting marriage to a union of a man and a woman, Ginsburg pointed out the institution of marriage has evolved since that time.

“But you wouldn’t be asking for this relief if the law of marriage was what it was a millennium ago,” Ginsburg said. “I mean, it wasn’t possible. Same-sex unions would not have opted into the pattern of marriage, which was a relationship, a dominant and a subordinate relationship. Yes, it was marriage between a man and a woman, but the man decided where the couple would be domiciled; it was her obligation to follow him. There was a change in the institution of marriage to make it egalitarian when it wasn’t egalitarian.”

Bonauto said that moment allowed her to affirm Ginsburg’s point about the evolving nature of marriage as an institution and elaborate.

“[F]or centuries we had ­­and Europe had this coverture system where a woman’s legal identity was absorbed into that of her husband and men and women had different prescribed legal roles,” Bonauto said at the time. “And again, because of equality and changing social circumstances, all of those gender differences in the rights and responsibilities of the married pair have been eliminated. And that, of course, is a system in which committed, same­-sex couples fit quite well.”

Although former U.S. Associate Justice Kennedy ended up writing the decision for same-sex marriage nationwide, Bonauto said that line of reasoning is present in his decision — so Ginsburg’s impact was apparent.

“[Marriage] has not stood in isolation from developments in law and society,” the decision says. “The history of marriage is one of both continuity and change. That institution even as confined to opposite-sex relations has evolved over time.”

Paul Smith, a Georgetown law professor who successfully argued Lawrence v. Texas before the Supreme Court in 2003, said Ginsburg gave him needed relief during oral arguments 17 years ago when the late U.S. Associate Justice Antonin Scalia was giving him the third-degree with aggressive questioning.

“The question was ‘I just wanted to be clear, you’re asking us to overrule Bowers v. Hardwick, the prior case, and she knew the answer to the question,'” Smith said. “It was just a way to let me break in, and let me say, ‘Yes. Let me give me you the three reasons why we think it should be overruled, and it was a very nice generous thing to do.”

After the court accepting Smith’s arguments and ruled against state laws criminalizing same-sex relations, he said he had a later engagement with Ginsburg months later at the first convention of the American Constitutional Society.

“She came over and I didn’t really know her that well, and she had a big smile on her face and said, ‘I bet your having a very nice summer,'” Smith said.

A mistress of the one liners, Ginsburg brought clarity to oral arguments with colorful language. John Bursch, now an attorney for the anti-LGBTQ legal firm Alliance Defending Freedom, was making the case different sex couples being able to conceive/bear children as the essence of marriage in 2015, Ginsburg got a chuckle in the courtroom when said asked, “Suppose a couple, 70-year-old couple, comes in and they want to get married?”

Ginsburg also lit up oral arguments on DOMA in 2013 when she said same-sex marriages under the law, which barred the federal government from recognizing same-sex unions, amounted to “skim-milk” marriages.

Roberta Kaplan, a New York-based who argued against DOMA on behalf of lesbian widow Edith Windsor, said on Twitter those three words “revolutionalized how people think about gay people and our relationships.”

“The minute it came out of her mouth, I knew in my gut we would win the Windsor case,” Kaplan said. “RBG’s analogy to a ‘skim milk’ marriage was better by a mile than anything we or any of the other lawyers had used to describe Edie’s marriage under DOMA in the dozens of briefs in the case.”

Kaplan added Ginsburg subsequently told her people had told her afterwords “they thought it was the single best thing that she ever had said or would say from the bench,” although she didn’t say whether she agreed with that assessment.

Although Ginsburg didn’t author major LGBTQ decisions from the court, she did join Kennedy for every opinion. Among them was Romer v. Evans in 1996, which struck down Colorado’s anti-gay Amendment 2, Lawrence v. Texas in 2003, which struck down state laws criminalizing sodomy. Both decisions were early indications the nation was beginning to head into a different direction to accept.

Ginsburg also joined rulings that advanced same-sex marriage, including Windsor v. United States in 2013, which struck down the anti-gay Defense of Marriage Act; Hollingsworth v. Perry in 2013, which restored marriage equality to California after Proposition 8; and Obergefell v. Hodges, which struck down state bans on same-sex marriage and extended full marriage equality throughout the country.

For each of these rulings on marriage, justices were split 5-4, so Ginsburg weren’t on the court, the decisions may not have come out in favor of the LGBTQ community.

One opinion Ginsburg did author was the 2010 decision in Christian Legal Society v. Martinez, which requires student groups at colleges, including religious groups with objections to LGBTQ people, to accept all students to obtain official recognition.

“A college’s commission — and its concomitant license to choose among pedagogical approaches — is not confined to the classroom, for extracurricular programs are, today, essential parts of the educational process,” Ginsburg wrote.

More recently, Ginsburg joined the decision in Bostock v. Clayton County, which found anti-LGBTQ discrimination is a form of sex discrimination, thus illegal under Title VII of the Civil Rights Act. The broad ruling grants protections to LGBTQ people wherever there are laws against sex discrimination, including employment, housing, health care and education.

Smith said Kennedy was given wide latitude in writing the gay rights decisions from the Supreme Courts because the liberal justices needed him as the fifth vote in those decisions, but nonetheless Ginsburg found to be live up to her reputation as a supporter of LGBTQ equality under the law.

“Those gay opinions, they were all hand-written on a yellow pad by Justice Kennedy and the other justices didn’t interfere; they just let him have his way because they knew he was the key fifth vote,” Smith said. “And they didn’t write any concurrences, they didn’t try to edit it, so it’s very much Kennedy’s voice, but she was a huge supporter of LGBT equality and pleased as punch to have seen it come about while she was on the court.”

Bonauto said the key to understanding Ginsburg’s worldview is a non-LGBTQ decision she wrote in 1996, United States v. Virginia, which struck down the long-standing male-only admission policy of the Virginia Military Institute. At the end of the opinion, Ginsburg talks about how the history of the Constitution as a history of including people formerly excluded.

“[That] can be tracked from Romer in the same year and through to Lawrence, Windsor and Obergefell,” Bonauto concluded. “After all, in Obergefell, the Court decided that same-sex couples also enjoy a fundamental right to marry even if in the past it had been limited to different-sex couples. And it discussed four factors — mostly grounded in constitutional law or the reality of what marriage has become as an evolving institution — about why marriage is fundamental.”

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Bill to ban conversion therapy dies in Puerto Rico Senate committee

Advocacy group describes lawmakers as cowards



Puerto Rico Pulse nightclub victims, gay news, Washington Blade


A Puerto Rico Senate committee on Thursday killed a bill that would have banned so-called conversion therapy on the island.

Members of the Senate Community Initiatives, Mental Health and Addiction Committee voted against Senate Bill 184 by an 8-7 vote margin. Three senators abstained.

Amárilis Pagán Jiménez, a spokesperson for Comité Amplio para la Búsqueda de la Equidad, a coalition of Puerto Rican human rights groups, in a statement sharply criticized the senators who opposed the measure.

“If they publicly recognize that conversion therapies are abuse, if they even voted for a similar bill in the past, if the hearings clearly established that the bill was well-written and was supported by more than 78 professional and civil entities and that it did not interfere with freedom of religion or with the right of fathers and mothers to raise their children, voting against it is therefore one of two things: You are either a hopeless coward or you have the same homophobic and abusive mentality of the hate groups that oppose the bill,” said Pagán in a statement.

Thursday’s vote comes against the backdrop of continued anti-LGBTQ discrimination and violence in Puerto Rico.

Six of the 44 transgender and gender non-conforming people who were reported murdered in the U.S. in 2020 were from Puerto Rico.

A state of emergency over gender-based violence that Gov. Pedro Pierluisi declared earlier this year is LGBTQ-inclusive. Then-Gov. Ricardo Rosselló in 2019 signed an executive order that banned conversion therapy for minors in Puerto Rico.

“These therapies lack scientific basis,” he said. “They cause pain and unnecessary suffering.”

Rosselló issued the order less than two weeks after members of the New Progressive Party, a pro-statehood party  he chaired at the time, blocked a vote in the Puerto Rico House of Representatives on a bill that would have banned conversion therapy for minors in the U.S. commonwealth. Seven out of the 11 New Progressive Party members who are on the Senate Community Initiatives, Mental Health and Addiction Committee voted against SB 184.

“It’s appalling. It’s shameful that the senators didn’t have the strength and the courage that our LGBTQ youth have, and it’s to be brave and to defend our dignity and our humanity as people who live on this island,” said Pedro Julio Serrano, founder of Puerto Rico Para [email protected], a Puerto Rican LGBTQ rights group, in a video. “It’s disgraceful that the senators decided to vote down this measure that would prevent child abuse.”

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Undocumented LGBTQ immigrants turn to Fla. group for support

Survivors Pathway is based in Miami



Survivors Pathway works with undocumented LGBTQ immigrants and other vulnerable groups in South Florida. (Photo courtesy of Francesco Duberli)


MIAMI – The CEO of an organization that provides support to undocumented LGBTQ immigrants says the Biden administration has given many of his clients a renewed sense of hope.

“People definitely feel much more relaxed,” Survivors Pathway CEO Francesco Duberli told the Washington Blade on March 5 during an interview at his Miami office. “There’s much hope. You can tell … the conversation’s shifted.”

Duberli — a gay man from Colombia who received asylum in the U.S. because of anti-gay persecution he suffered in his homeland — founded Survivors Pathway in 2011. The Miami-based organization currently has 23 employees.

Survivors Pathway CEO Francesco Duberli at his office in Miami on March 5, 2021. (Washington Blade photo by Yariel Valdés González)

Duberli said upwards of 50 percent of Survivors Pathway’s clients are undocumented. Duberli told the Blade that many of them are survivors of domestic violence, sexual assault and human trafficking and victims of hate crimes based on their sexual orientation and gender identity.

“Part of the work that we have done for years is for us to become the bridge between the communities and law enforcement or the justice system in the United States,” said Duberli. “We have focused on creating a language that helps us to create this communication between the undocumented immigrant community and law enforcement, the state attorney’s office and the court.”

“The fear is not only about immigration,” he added. “There are many other factors that immigrants bring with them that became barriers in terms of wanting to or trying to access the justice system in the United States.”

Duberli spoke with the Blade roughly a week after the Biden administration began to allow into the U.S. asylum seekers who had been forced to pursue their cases in Mexico under the previous White House’s “Remain in Mexico” policy.

The administration this week began to reunite migrant children who the Trump administration separated from their parents. Title 42, a Centers for Disease Control and Prevention rule that closed the Southern border to most asylum seekers and migrants because of the coronavirus pandemic, remains in place.

Duberli told the Blade that Survivors Pathway advised some of their clients not to apply for asylum or seek visa renewals until after the election. Duberli conceded “the truth of the matter is that the laws haven’t changed that much” since Biden became president.

Survivors Pathway has worked with LGBTQ people in U.S. Immigration and Customs Enforcement custody in South Florida. American Civil Liberties Union National Political Director Ronald Newman in an April 28 letter it sent to Homeland Security Secretary Alejandro Mayorkas called for the closure of the Krome North Service Processing Center in Miami, the Glades County Detention Center near Lake Okeechobee and 37 other ICE detention centers across the country.

The road leading to the Krome North Service Processing Center in Miami on June 7, 2020. (Washington Blade photo by Michael K. Lavers)

Survivors Pathway responded to trans woman’s murder in 2020

Survivors Pathway has created a project specifically for trans Latina women who Duberli told the Blade don’t know they can access the judicial system.

Duberli said Survivors Pathway works with local judges and police departments to ensure crime victims don’t feel “discriminated, or outed or mistreated or revictimized” because of their gender identity. Survivors Pathway also works with Marytrini, a drag queen from Cuba who is the artistic producer at Azúcar, a gay nightclub near Miami’s Little Havana neighborhood.

Marytrini and Duberli are among those who responded to the case of Yunieski “Yuni” Carey Herrera, a trans woman and well-known activist and performer from Cuba who was murdered inside her downtown Miami apartment last November. Carey’s boyfriend, who had previously been charged with domestic violence, has been charged with murder.

“That was an ongoing situation,” noted Duberli. “It’s not the only case. There are lots of cases like that.”

Duberli noted a gay man in Miami Beach was killed by his partner the same week.

“There are lots of crimes that happen to our community that never gets to the news,” he said. “We got those cases here because of what we do.”

Yunieski “Yuni” Carey Herrera was murdered in her downtown Miami apartment in November 2020. (Photo courtesy of social media)

















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Patrick O’Connell, acclaimed AIDS activist, dies at 67

Played key role in creating red ribbon for awareness



Activist Patrick O’Connell was instrumental in creating the red ribbon to promote AIDS awareness. (Photo courtesy of Allen Frame; courtesy Visual AIDS)

Patrick O’Connell, a founding director of the New York City-based AIDS advocacy group Visual AIDS who played a lead role in developing the internationally recognized display of an inverted, V-shaped red ribbon as a symbol of AIDS advocacy, died on March 23 at a Manhattan hospital from AIDS-related causes, according to the New York Times. He was 67.

Visual AIDS said in a statement that O’Connell held the title of founding director of the organization from 1980 to 1995.

During those years, according to the statement and others who knew him, O’Connell was involved in the group’s widely recognized and supported efforts to use art and artist’s works to advocate in support of people with HIV/AIDS and efforts to curtail the epidemic that had a devastating impact on the art world.

Thanks to a grant from the Art Matters foundation, Visual AIDS was able to retain O’Connell as its first paid staff member in 1990, the group said in its statement.

“Armed with a fax machine and an early Macintosh computer, Patrick helped Visual AIDS grow from a volunteer group to a sustainable non-profit organization,” the statement says. “A passionate spokesperson for the organization, he helped projects like Day Without Art, Night Without Light, and the Red Ribbon reach thousands of people and organizations across the world,” the group says in its statement.

“We were living in a war zone,” the statement quoted O’Connell as saying in a 2011 interview with the Long Island newspaper Newsday. “But it was like a war that was some kind of deep secret only we knew about,” O’Connell said in the interview. “Thousands were dying of AIDS. We felt we had to respond with a visible expression,” he told the newspaper.

With O’Connell’s help, Visual AIDS in 1989 organized the first annual Day Without Art in which dozens of galleries and museums in New York and other cities covered art works with black cloths to symbolize the mourning of those who died of AIDS. Among those participating were the Brooklyn Museum, the J. Paul Getty Museum in Los Angeles, and the Metropolitan Museum of Art in New York, which replaced a Picasso painting with a “somber informational placard,” according to the New York Times.

In 1990 O’Connell helped Visual AIDS organize the first Night Without Light, which was held at the time of World AIDS Day. New York City’s skyscraper buildings, bridges, monuments, and Broadway theaters turned off their lights for 15 minutes to commemorate people who lost their lives to AIDS, the New York Times reported.

In the kickoff of its Red Ribbon Project in 1991, McConnell helped organize volunteers to join “ribbon bees” in which thousands of the ribbons were cut and folded for distribution around the city, the Times reports. Those who knew McConnell said he also arranged for his team of volunteers to call Broadway theaters and producers of the upcoming Tony Awards television broadcast to have participants and theater goers display the red ribbons on their clothes.

Among those displaying a red ribbon on his label at the Tony Awards broadcast was actor Jeremy Irons, who was one of the hosts. In later years, large numbers of celebrities followed the practice of wearing the red ribbon, and in 1993 the U.S. Postal Service issued a red ribbon stamp.

The Times reports that O’Connell was born and raised in Manhattan, where he attended Fordham Preparatory School and later graduated from Trinity College in Hartford, Conn., in 1973 with a bachelor’s degree in history. According to Visual AIDS, O’Connell served as director of the Hallwalls arts center in Buffalo, N.Y. from 1977 to 1978 before returning to New York City to work for a gallery called Artists Space.

The Times reports that O’Connell learned in the middle 1980s that he had contracted AIDS and began a regimen of early AIDS treatment with a cocktail of over 30 pills a day. His involvement with Visual AIDS, which began in 1989, ended on an active basis in 1995 when his health worsened, the Times reports.

As one of the last remaining survivors of his New York contemporaries who had HIV beginning in the 1980s, O’Connell continued in his strong support for AIDS-related causes through 2000s and beyond, people who knew him said.
Visual AIDS says it is gathering remembrances and photos for a tribute post for O’Connell on its website. It has invited people to share their memories of him by sending written contributions and images via email to: [email protected].

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