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Supreme Court poised to roll back LGBTQ rights

Rebalance stolen court via expansion, term limits

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LGBTQ advocates were rightly relieved when the Supreme Court handed down Bostock v. Clayton County this past June, a case that extended the prohibition against discrimination in employment to include discrimination based on sexual orientation and gender identity. And with the most LGBTQ-friendly President-elect in U.S. history poised to take office in a matter of days, our community has even more reason to be hopeful.

Despite these positive developments, however, the Supreme Court poses a grave danger to the LGBTQ community. As the court ushers in a new era of conservative dominance—with anti-LGBTQ justices holding a 6-3 supermajority—the fragile judicial coalition on which the movement for equality has relied is at significant risk of being cast aside. 

Justice Amy Coney Barrett’s recent confirmation to the court is deeply concerning. Justice Barrett has defended Justice Roberts’ dissent in Obergefell, indicating that the issue of marriage equality should belong to state legislatures. She has repeatedly used transphobic and homophobic language, and even argued that Title IX does not protect transgender people. Her extremist positions will embolden the anti-LGBTQ conservative justices on the court – Justices Kavanaugh and Alito recently held an inappropriate private meeting with an anti-gay activist who had filed briefs in pending cases — and other Trump-appointed judges, as well as state legislatures to take anti-LGBTQ stances. With equality hanging in the balance, the LGBTQ community cannot afford a Supreme Court that stands to crush any progress made.

Marriage equality: In October, the Supreme Court denied certiorari to a case involving Kentucky woman Kim Davis, who refused to issue marriage licenses to same-sex couples. However, the denial of certiorari came with warning signs: Justices Alito and Thomas wrote a section that cast doubt on the constitutionality of Obergefell, the landmark Supreme Court case in which Justice Kennedy’s opinion that held that marriage is a fundamental right guaranteed to same-sex couples by the Constitution. In the certiorari denial, Justice Thomas wrote: “By choosing to privilege a novel constitutional right over the religious liberty interests explicitly protected in the First Amendment, and by doing so undemocratically, the Court has created a problem that only it can fix. Until then, Obergefell will continue to have ‘ruinous consequences for religious liberty.’” While broad majorities of the American people support marriage equality and opponents of it might not have the votes on the Supreme Court to overturn the precedent, it is nonetheless a troubling sign that two Justices would sign onto discrimination against our fellow citizens.

Discrimination: The currently pending case before the Supreme Court about discrimination is Fulton v. City of Philadelphia. The case emerged from circumstances in 2018: The city of Philadelphia had hired a number of agencies for foster care service. When the city learned that two agencies denied same-sex couples as foster parents, Philadelphia threatened to stop using the agencies unless they agreed to nondiscrimination requirements. While one of the agencies complied, the other, the Catholic Social Services (“CSS”), sued the city in federal district court. The federal district court found in Philadelphia’s favor, which the Third Circuit then unanimously affirmed. Nonetheless, the Supreme Court granted certiorari.

The CSS claims that because the city looks to several factors, including religious and racial factors, in spite of anti-discrimination law, it cannot at the same time prohibit the agency from considering the sexual orientation of foster parents under the guise of “religious belief.” If Philadelphia makes exceptions to its anti-discrimination laws in foster placement, it must also allow religious agencies an exception as well. If Philadelphia does not do so, it violates the First Amendment. The city claims that it can choose not to provide government contracts to organizations that do not adhere to its nondiscriminatory requirements. For the court to decide otherwise, it would mandate that the city discriminate.

The stakes are high, in part because a ruling against equality in Fulton could provide cover for undermining Bostock, which extended Title VII protections to LGBTQ employees. An expansion of the religious liberty to discriminate could eat away at Bostock. Even a 5-4 court with Justice Kennedy ruled against LGBTQ rights in Masterpiece Cakeshop. Now, with a 6-3 conservative supermajority, Fulton could strike a big blow against equality.

Health care and family: If the Supreme Court strikes down the Affordable Care Act (ACA) in California v. Texas, health care protections for the LGBTQ community would be eliminated. Section 1557 of the ACA is the law’s non-discrimination provision, which bans discrimination in health care on the basis of sex. The Obama administration’s rule interpreted Section 1557’s ban on sex discrimination to include discrimination on the basis of sexual orientation and gender identity. In addition to Section 1557, the ACA as a whole has been enormously important for the LGBTQ community. The uninsured rate for lesbian, gay and bisexual Americans fell dramatically due to the ACA and LGBTQ adults have become more likely to report having regular access to health care. For transgender Americans, who are more likely to live in poverty or be unemployed and to face enormous challenges and have negative experiences accessing health care, the ACA’s Medicaid expansion and provision of individual health insurance through the marketplaces are critical. The 6-3 conservative supermajority on the court makes the end of the ACA significantly more likely, with disastrous consequences that will disproportionately affect the LGBTQ community. 

Lawsuits challenging the Obama administration’s interpretation of Section 1557, particularly in regard to its ban on discrimination on the basis of gender identity, have been percolating in the federal courts for years. The Trump administration has attempted to reverse those protections, but it is widely expected that the Biden administration will revert to the Obama-era rule. Even if the ACA survives, this line of litigation could undermine critical protections for transgender individuals in the health care system. While the Supreme Court’s decision in Bostock v. Clayton County last term interpreting similar language in Title VII (discrimination on the basis of sex) to cover gender identity should be definitive, the 6-3 conservative supermajority could decide to distinguish these cases and allow for discrimination against LGBTQ individuals in health care. Since so many of the nation’s hospitals are affiliated with religious organizations such as the Catholic Church, the court could seize on Justice Gorsuch’s language in Bostock suggesting that the Religious Freedom Restoration Act (RFRA) could trump Title VII to require broad religious exemptions from non-discrimination in health care. 

Transgender rights: In addition to the massive blow that a gutted ACA could have for transgender rights, other cases about transgender rights percolating in the lower courts may someday make their way to the Supreme Court. In Saba v. Cuomo, for example, a transgender, nonbinary resident sued the state of New York for refusing to allow Mx. Saba to obtain a driver’s license that accords with Mx. Saba’s gender identity. In August, a lower court preliminarily enjoined Idaho’s law that barred transgender women from participating on women’s sports teams. That decision is currently being appealed.

Just this past year, the Fourth Circuit and the Eleventh Circuit considered whether school bathroom policies violated transgender students’ rights. Though both circuits ruled in favor of the students, the Grimm case briefly reached the Supreme Court in 2017 before being sent back to the lower court. In 2019, the Supreme Court rejected certiorari in a case involving transgender bathrooms, leaving a lower court’s trans-affirming decision in place. But it only takes four votes for the Court to take a case, and with a 6-3 supermajority now firmly in place, there is no telling the havoc it could wreak on transgender rights.

As we celebrate the end of the Trump era, and as we prepare to work with the incoming Biden administration to restore rights that have been destroyed over the past four years while advancing the case for equality, the LGBTQ community must pay attention to the danger posed by anti-LGBTQ justices, and we must advocate forcefully for judicial reforms such as court expansion and term limits that rebalance the stolen, illegitimate court.

 

Aaron Belkin is the director of the Palm Center and of Take Back the Court, and a political science professor at San Francisco State University.

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Pinto leads Council in working with Bowser to fight crime

We must not coddle young criminals or repeat offenders

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D.C. Councilmember Brooke Pinto (Washington Blade photo by Michael Key)

The time has come for the D.C. Council to join with Mayor Bowser and pass her crime bill on a permanent basis. Councilmember Brooke Pinto worked to pass part of it in July as emergency legislation. We must accept residents are scared. Some for good reason; others because of hyped media reporting. But the spike in crime is real, though not evenly spread across the city. Most don’t know crime fell from 2021 to 2022. But it is here today, and we must do everything we can to stem it.

We can no longer coddle young criminals or repeat offenders. We can’t say if only we could deal with the root causes of crime things would be OK. While we must do that, work to provide better housing, enough food, better education, and family life, let’s also recognize most young people in our community, including those who deal with some of the same issues as the criminals, are not turning to crime. How they deal with the hardships they face, manage to go to school, and live productive lives, should be a focus so we learn from them. Recently the D.C. attorney general awarded the eighth annual Right Direction Awards. Thirty young people were saluted for overcoming significant challenges on their road to achievement. We need to share more of their stories. 

How do they manage to stay away from guns and drugs? What allows them to succeed? It’s time for the media in D.C. — the Washington Post, and TV and radio stations — to report more comprehensively on youth in the city. For every crime story reported, find a positive story to tell. There are clearly more positive stories out there. It requires more work than following the police blotter. Send reporters into schools, recreation centers, libraries, houses of worship, and they will find the good stories.  

I have long advocated for working with Congress to set up internships for D.C. students in every congressional office; 535 kids a year would get experience, good connections, and a resume boost. If we are serious about this, and have a focus on our youth beyond those who commit crimes, everyone will benefit.  

Council Judiciary Committee Chair Brooke Pinto introduced several bills including the The Active Act. This legislation would further beef up penalties for gun crimes, creating a new offense for illegal disposal of a gun or ammunition while a person is fleeing police. Then increasing penalties for endangerment with a firearm and firing many bullets at once. At the same time, she looks to expand alternatives to incarceration, creating a task force to examine possibilities for diversion programs to avoid jail time for nonviolent misdemeanor offenses such as drug possession. The Active Act also creates more hurdles for pretrial release in cases involving people charged with violent or dangerous offenses. It would require judges to issue written explanations if they decide to release before trial a person charged with committing a violent offense.  

In response to the LGBTQ community, Pinto with Council members Christina Henderson, Robert White, Charles Allen, Vincent Gray, Matt Frumin, Janeese Lewis George, and Anita Bonds, introduced the “Transgender and Gender-Diverse Mortality and Fatality Review Committee Establishment Act of 2023.” Pinto wrote, “Although data are limited, some studies suggest transgender people are “twice as likely to die as cisgender people” due to “heart disease, lung cancer, HIV-related illness and suicide,” with trans women being “two times as likely to die” compared to cis men and “three times as likely” compared to cis women being disproportionately vulnerable to the aforementioned risks, as well as to violence and murder, with one in four trans women likely to be victimized by a hate-related crime.” It is anticipated the information from this committee will contribute important data and analysis, and provide important resources, for the National Center for Fatality Review and Prevention and for transgender and gender-diverse people across the country informing future strategies and interventions to drive down the disparate outcomes we are currently seeing. 

We must ensure the legal system is not a revolving door. That crimes committed with guns are punished seriously, and young people who commit violent crimes can be held without bail if they are ongoing serious threats to the community. Clearly, going easier on violent criminals is not working the way some hoped it would. Again, simply saying we will deal with it by getting to the root of crime will not deal with the crime we have today. It should happen, and will have an impact, but not right away, and we need to reduce crime today.

Peter Rosenstein is a longtime LGBTQ rights and Democratic Party activist. He writes regularly for the Blade.

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Is anyone else sick of Cassidy Hutchinson?

Trump loyalist feted by mainstream media after belated change of heart

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Cassidy Hutchinson (Screen capture via USA Today YouTube)

Cassidy Hutchinson, the former Trump loyalist who belatedly turned on her boss, the man she “adored,” is this week’s mainstream media obsession, turning up multiple times on CNN, MSNBC, NBC, “The View,” and seemingly everywhere else. The only person getting more airtime this week is Taylor Swift, after urgent news broke that she’s dating an NFL player. (The “Today” show led twice with that very important story this week.)

For sure, Hutchinson’s testimony before the Jan. 6 committee in front of 13 million viewers took courage, given how many Trump supporters are inclined to violence against his critics. 

But Hutchinson remained loyal to Trump even after the Jan. 6 insurrection and planned to move to Florida for a job with him after he left the White House on Jan. 20. She initially took the advice of Trump’s attorneys to claim she didn’t recall the events leading up to the attack on the Capitol.

Some of us saw Trump for what he is back in 2015: a racist criminal and pathological liar, an ‘80s has-been and washed-up reality show host in orange makeup and a bad wig.

Where’s our party? 

Easily duped people like Hutchinson helped elect Trump and then supported him throughout all the too-numerous-to-mention scandals — mocking the disabled, insulting a Gold Star family, ridiculing war heroes, siding with Neo Nazis in Charlottesville, and on and on. Not to mention a botched response to a pandemic that killed more than one million Americans. Trump refused to wear a mask (we recently learned because it smeared his extensive makeup) and poked fun at Joe Biden for wearing one. 

Most of Trump’s die hard supporters jumped ship after Jan. 6, but not Cassidy Hutchinson. She even told Mark Meadows that she would “take a bullet” for Trump. She told “The View” that it was a “difficult moment” to watch former White House staffers denounce Trump after Jan. 6, due to her blind loyalty to him. She resisted her own mother’s pleas to abandon Trump and not move to Florida with him. She blamed Trump’s advisers for his bad decisions.

It all smacks of brainwashing. Anyone who is so weak willed that they are easily manipulated by the “charms” of Donald Trump has no business anywhere near the White House. Hutchinson has demonstrated not just bad judgement, but disastrous judgement. 

And now that she has a book to peddle, the mainstream media predictably line up to sing her praises and she spills all sorts of tea, from Rudy Giuliani allegedly sexually assaulting her to Mark Meadows burning White House documents in his office fireplace. She didn’t follow the parade of staffers who quit after Jan. 6 and she didn’t report Meadows for allegedly destroying government property. And now we’re supposed to shell out $30 for her vapid book about finally seeing the light, long after the rest of the world had figured out Trump for the incorrigible threat to democracy that he represents. 

Hutchinson deserves our gratitude for her Jan. 6 committee testimony. But nothing more. And the mainstream media have got to stop their practice of reckless revisionist history and praising the undeserving.

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Speaker Kevin McUseless calls for Biden impeachment inquiry

Stunt will backfire on Republicans in 2024

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House Speaker Kevin McCarthy (Washington Blade file photo by Michael Key)

Congress has joined the world of the insane with Republicans calling to impeach any Democrat they disagree with. It is happening in Wisconsin to the new Supreme Court justice, and now lily-livered Kevin McUseless, facing threats from his MAGA members, announced an impeachment inquiry of President Biden.  

He could name no reason, and in fact during the nine months of Republicans investigating Biden, they have found none. Two weeks ago, he said he wouldn’t do this without a vote of the House, but moderate Republicans rightly figure this will all backfire on them, so wouldn’t agree to vote for it. Meanwhile the country is waiting for House Republicans to do their job and pass a budget, which they are unable to do. The result could close the government again. That will also backfire on them, as it will hurt so many people. 

So, what better time for Democrats, thinking independents, and any sane Republican left, those willing to put the country above their own party, and in the case of Liz Cheney (R-Wyo.) and Adam Kinzinger (R-Ill.), even their own reelections, to just vote all these Republican clowns out of office? 

Oversight and Accountability Committee Chair James Comer (R-Ky.), who will lead the inquiry on Biden, has for the nine previous months come up with zilch — nothing meriting impeachment or even further investigation. The IRS whistleblowers’ testimony he touted was contradicted by the FBI in sworn testimony. But then it isn’t Comer asking for this impeachment inquiry, it is Marjorie Taylor Greene and Matt Gaetz, and the MAGAs holding McUseless hostage. Those two should be arrested for criminal behavior, charged with being an embarrassment to the country. They are joined by the likes of Lauren Boebert (R-Colo.), recently thrown out of a Denver theater for groping her boyfriend, vaping, taking pictures, and recording a show, Beetlejuice. This is today’s Republican Party. 

Clearly, most elected Republicans are not willing to stand up to these jokers; all afraid of the Trump cult, aka the Republican Party. They are being threatened with a primary by Trump if they do. They would lose the primary, part of the reason Sen. Mitt Romney (R-Utah) just announced he would not run again. The Trump cult controls roughly 35% of the party and you can’t win without them. But Trump-supported primary winners have shown they lose general elections. 

I am more confident than some in a Trump/Biden replay, Biden will win by 10 million votes this time, but not get one more electoral vote. It will again be about seven or eight states. If Republicans go ahead with this impeachment Democrats will win in 2024.

As to Hunter Biden, he should be punished for anything he did wrong, like any private citizen; whether it is not paying his taxes or lying on a gun permit application. President Biden should stop inviting Hunter to the White House, and curtail his public embrace of his son. It hasn’t helped his son, and is clearly not helping his own campaign, or for that matter any other Democrat. What he does in private is his business. The president has two homes, one in Wilmington, and one in Rehoboth Beach, where he can meet with, and entertain his son. I think the president owes that to the people he is asking to support him. He owes it to the party to not put himself in positions his opponents can take advantage of. 

Joe Biden has been a public servant since he was 28 years old, starting on the New Castle County Council, in Delaware, in 1970. He ran and won his Senate seat in 1972. He has never been accused of any impropriety until the Republicans decided they could make unfounded accusations for political gain. He has shown himself a decent and honest man. A man with empathy for those less fortunate; and a president with one of the most successful administrations in modern times. 

So McUseless, do your worst. Bend over for the MAGAs and get screwed. Hope it hurts. You have no balls as depicted in a recent funny meme where Barbie is shown on her knees in front of Ken, saying she finally understood; McUseless was the model for Ken. 

The country will survive McUseless and the congressional Trump cult and be stronger for it. The decent people of the country will end up winning and McUseless, Marjorie Taylor Greene, Matt Gaetz, and their cronies, will be relegated to the dustbin of history with nary an asterisk to their names. If there is an asterisk it will read that they were useless, venal, and screwed up.

Peter Rosenstein is a longtime LGBTQ rights and Democratic Party activist. He writes regularly for the Blade.

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