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Jackson holds firm in questioning over marriage equality

Texas Republican compares decision to Dred Scott

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From left, Judge Ketanji Brown Jackson and Sen. John Cornyn (R-Texas) at the United States Senate Committee on the Judiciary on March 22, 2022. (Washington Blade photos by Michael Key)

The U.S. Supreme Court ruling for same-sex marriage ā€” issued nearly seven years ago in 2015 ā€” is considered settled law and in the rear-view mirror of history for many Americans, but Sen. John Cornyn (R-Texas) opted to press Ketanji Brown Jackson on the decision as an example of policy-making from the bench in questions during her confirmation hearing.

Jackson, nominated by President Biden to serve on the U.S. Supreme Court, stood firm on Tuesday in response to the questions despite lamentations from Cornyn the decision found a due process and right for same-sex couples to marry that overruled the will of the people who voted to ban gay nuptials in his state.

ā€œThat is the nature of a right,ā€ Jackson replied. ā€œWhen there is a right, it means that there are limitations on regulation, even if people are regulating pursuant to their sincerely held religious beliefs.ā€

In the nearly 15-minute exchange between Cornyn and Jackson, the Texas Republican pressed her on the expansive interpretation by the courts of due process and equal protection clauses, which he said led to decisions condemned to the dustbin of history like Dred Scott and Plessy v. Ferguson.

Cornyn, however, also included with those rulings the 2015 decision in Obergefell v. Hodges, which he said was a “dramatic departure from previous laws in the states and in the nation.” (Cornyn throughout the questioning had difficulty pronouncing the name “Obergefell,” which at least one time he called the “Ober-fell” case.)

“In the opinions that were written there at the time, it was noted that here we are 234 years after the Constitution had been ratified, 135 years since the 14th Amendment had been ratified, that the Supreme Court articulated a new fundamental right, which is a right to same-sex marriage,” Cornyn said.

Cornyn recalled at the time 11 states and D.C. had legalized same-sex marriage, but said 35 states had put the question on the ballot and 32 had decided to “maintain the traditional definition of marriage between a man and a woman.”

The Texas Republican went on to describe the issue as not just an overriding the will of the states and the people, but also major religions, and asked Jackson if she agrees “marriage is not simply a governmental institution, it’s also a religious institution.”

When Jackson replied, “Well, senator, marriages are often performed in religious institutions,” Cornyn followed up with questioning on whether she agrees many major religions, including Christianity, Judaism, and Islam, have defined marriage as one man, one woman (ignoring denominations within those religions, such as Episcopal and Presbyterian Church, that recognize and wed same-sex couples).

Jackson wouldn’t engage with Cornyn beyond what was directly necessary: “I am aware that there are various religious faiths that define marriage in a traditional way.”

That’s when Cornyn framed the Obergefell decision as stepping up a conflict between religious views and the decision of the court.

“Do you see that when the Supreme Court makes a dramatic pronouncement about the invalidity of state marriage laws, that it will inevitably set in conflict between those who ascribe to the Supreme Court’s edict and those who have a firmly held religious belief that marriage is between a man and a woman?” Cornyn asked.

Jackson, as is customary for a nominee up for a seat on the Supreme Court, declined to offer her views, pointing out “these issues are being litigated, as you know, throughout the courts” and therefore she was limited in what she could say.

But Cornyn wouldn’t up let up, pressing Jackson again on the Obergefell ruling. Jackson responded the “nature of the right” found the U.S. Constitution trumps regulation “even if people are regulating pursuant to their sincerely held religious beliefs.”

Cornyn continued his questioning by asking whether the concept of marriage is enshrined in the Constitution, drawing on the dissents from Chief Justice John Roberts and Associate Justice Samuel Alito lamenting opponents of same-sex marriage will be labeled as bigots.

More broadly, Cornyn went on to lament the substantive due process rights found by the courts as “another way for judges to hide their policymaking under the guise of interpreting the Constitution.”

Jackson gave an answer demonstrating her knowledge of case law, saying courts have found the right to due process to mean “not just procedural rights relative to government action but also the protection of certain personal rights related to intimacy and autonomy.”

“They include things like the right to rear one’s children, I believe the right to travel, the right to marriage, interracial marriage, the right to abortion, contraception,” Jackson said.

Cornyn interjected the same interpretation led to the Dred Scott decision, citing “treating slaves as chattel property” as an another outcome of the expansive intrepretation of the due process clause.

After more questioning from Cornyn on whether “you can use substantive due process to justify basically any result whether it’s conservative or liberal, libertarian or conservative,” he went on to ask Jackson whether she can understand “why ordinary folks wonder, Who do these people think they are? And where does this authority come from?” Jackson, in response, kept her answer simple: “Absolutely, senator, I do understand it.”

It should be noted the Supreme Court has rejected subsequent legal claims to overturn the Obergefell decision, or even to chip away at the decision. Even with the 6-3 conservative majority on the Supreme Court, justices in 2020 declined to hear a case brought by Indiana seeking to challenge the decision on the basis of birth certificates for the children for women in same-sex marriages. Alito, however, and Associate Justice Clarance Thomas have declared war on Obergefell, writing in a filing two years ago the ruling falls short in accommodating religious freedom.

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Survey finds support for Biden among LGBTQ adults persists despite misgivings

Data for Progress previewed the results exclusively with the Blade

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Former President Donald Trump and President Joe Biden (Washington Blade photo by Michael Key)

A new survey by Data for Progress found LGBTQ adults overwhelmingly favor President Joe Biden and Democrats over his 2024 rival former President Donald Trump and Republicans, but responses to other questions may signal potential headwinds for Biden’s reelection campaign.

The organization shared the findings of its poll, which included 873 respondents from across the country including an oversample of transgender adults, exclusively with the Washington Blade on Thursday.

Despite the clear margin of support for the president, with only 22 percent of respondents reporting that they have a very favorable or somewhat favorable opinion of Trump, answers were more mixed when it came to assessments of Biden’s performance over the past four years and his party’s record of protecting queer and trans Americans.

Forty-five percent of respondents said the Biden-Harris administration has performed better than they expected, while 47 percent said the administration’s record has been worse than they anticipated. A greater margin of trans adults in the survey ā€” 52 vs. 37 percent ā€” said their expectations were not met.

Seventy precent of all LGBTQ respondents and 81 percent of those who identify as trans said the Democratic Party should be doing more for queer and trans folks, while just 24 percent of all survey participants and 17 percent of trans participants agreed the party is already doing enough.

With respect to the issues respondents care about the most when deciding between the candidates on their ballots, LGBTQ issues were second only to the economy, eclipsing other considerations like abortion and threats to democracy.

These answers may reflect heightened fear and anxiety among LGBTQ adults as a consequence of the dramatic uptick over the past few years in rhetorical, legislative, and violent bias-motivated attacks against the community, especially targeting queer and trans folks.

The survey found that while LGBTQ adults are highly motivated to vote in November, there are signs of ennui. For example, enthusiasm was substantially lower among those aged 18 to 24 and 25 to 39 compared with adults 40 and older. And a plurality of younger LGBTQ respondents said they believe that neither of the country’s two major political parties care about them.

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Court records raise concerns about right-wing TikTok investor’s influence

Jeff Yass is a Pa. billionaire who has funded anti-LGBTQ causes

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Jeff Yass (Screen capture: Susquehanna International Group/YouTube)

The role played by Pennsylvania billionaire Jeff Yass in the creation of TikTok might be far greater than was previously understood, according to new reporting that raises questions about the extent of the right-wing megadonor’s influence over matters at the intersection of social media, federal regulations, and electoral politics.

In 2012, Yass’s firm, Susquehanna International Group, spent $5 million for 15 percent of the short-form video hosting platform’s Chinese-owned parent, ByteDance. In the years since, as TikTok grew from a nascent startup to a tech giant with 1.5 billion active monthly users and an estimated $225 billion valuation, Yass and his firm pocketed tens of billions of dollars.

Beyond the size of Susquehanna’s ownership stake, little was known about its relationship with ByteDance until documents from a lawsuit filed against the firm by its former contractors were accidentally unsealed last month, leading to new reporting by the New York Times on Thursday that shows Susquehanna was hardly a passive investor.

In 2009 the firm used a proprietary, sophisticated search algorithm to build a home-buying site called 99Fang, tapping software engineer and entrepreneur Zhang Yiming to serve as its CEO. The company folded. And then, per the Times’s review of the court records, in 2012 Susquehanna picked Yiming to be the founder of its new startup ByteDance and repurposed the technology from 99Fang for use in the new venture.

Importantly, the documents do not provide insight into Yass’s personal involvement in the formation of ByteDance. And Susquehanna denies that the company’s search algorithm technologies were carried over from the real estate venture ā€” which, if true, would presumably undermine the basis for the lawsuit brought by the firm’s former contractors who are seeking compensation for the tech used by ByteDance.

Questions about Yass’s influence come at a pivotal political moment

In recent weeks, federal lawmakers have moved forward with a proposal that would force ByteDance to divest TikTok or ban the platform’s use in the U.S. altogether, citing the potential threats to U.S. national security interests stemming from the company’s Chinese ownership.

The bill was passed on March 13 with wide bipartisan margins in the House but faced an uncertain future in the Senate. However, on Wednesday, House Speaker Mike Johnson (R-La.) announced plans to fold the proposal into a measure that includes foreign aid to Ukraine, Israel, and Taiwan, likely bolstering its chances of passage by both chambers.

Last month, shortly after meeting with Yass at his home in Mar-a-Lago, former President Donald Trump changed his longtime stance and came out against Congress’s effort to break up or ban TikTok. The timing led to speculation about whether the billionaire businessman was behind Trump’s change of heart, perhaps by contributing to the cash-strapped Republican presidential nominee’s electoral campaign or through other means.

Meanwhile, Yass has emerged as the largest donor of the 2024 election cycle. A coalition of public interest and government watchdog groups have called attention to the vast network of right-wing political causes and candidates supported by the billionaire, often via contributions funneled through dark money PACs that are designed to conceal or obscure the identities of their donors.

The Action Center on Race and the Economy, Make the Road, POWER Metro: Faith in Action, Free the Ballot, and Little Sis launched a website called All Eyes on Yass that features research into the various causes he supports, along with insight into the networks connecting the entities funded by his contributions.

Broadly, in Pennsylvania they fall into five categories: Advocacy against reproductive freedom and LGBTQ rights via the Pennsylvania Family Institute, lobbying on behalf of oil and gas industry interests by the Pennsylvania Manufacturers’ Association, anti-union groups supported by Commonwealth Partners, a privately owned registered investment advisory firm/independent broker-dealer, the Commonwealth Foundation for Public Policy Alternatives, which seeks to privatize public schools and defeat proposed increases to the minimum wage, and the Citizens Alliance of Pennsylvania, which advocates for lowering taxes on corporations and the rich.

Additionally, All Eyes on Yass reports that the billionaire has given massive contributions to Club for Growth and direct spending to support the electoral campaigns of right-wing Republicans including Florida Gov. Ron DeSantis; U.S. Sens. Ted Cruz (Texas), Rand Paul (Ky.), and Josh Hawley (MO); U.S. Rep. Lauren Boebert (Colo.), and former U.S. Rep. Madison Cawthorn (N.C.).

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Lawmakers champion drug policy reforms at National Cannabis Policy Summit

Congressional leaders pledged their support for decriminalization

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U.S. Rep. Barbara Lee (D-Calif.), second from left (Washington Blade photo by Christopher Kane)

Speaking at the 2024 National Cannabis Policy Summit on Wednesday, congressional leaders pledged their support for proposals to remedy the harms of America’s War on Drugs while protecting cannabis users and cannabis businesses that are operating under a fast-evolving patchwork of local, state, and federal laws.

Overwhelmingly, the lawmakers who attended the conference at the Martin Luther King Jr. Memorial Library in D.C. or delivered their remarks virtually were optimistic about the chances of passing legislative solutions in the near-term, perhaps even in this Congress.

Participants included U.S. Sens. Raphael Warnock (D-Ga.), Jeff Merkley (D-Ore.), Elizabeth Warren (D-Mass.), and Senate Majority Leader Chuck Schumer (D-N.Y.), along with U.S. Reps. Eleanor Holmes Norton (D-D.C.), Earl Blumenauer (D-Ore.), and Barbara Lee (D-Calif.), who co-chairs the Congressional Cannabis Caucus and was honored at the event with the Supernova Women Cannabis Champion Lifetime Achievement Award. Republicans included an aide for U.S. Rep. David Joyce (R-Ohio) who was featured in an afternoon panel discussion about the cannabis policy landscape on Capitol Hill.

Each of the members have long championed cannabis-related policy reforms, from Merkleyā€™s SAFER Banking Act that would allow cannabis businesses to access financial services (thereby affording them the critically important protections provided by banks) to Leeā€™s work throughout her career to ameliorate the harms suffered by, particularly, Black and Brown communities that have been disproportionately impacted by the criminalization of marijuana and the consequences of systemic racism in law enforcement and the criminal justice system.

The lawmakers agreed America is now at an inflection point. Democratic and Republican leaders are coming together to support major drug policy reforms around cannabis, they said. And now that 40 states and D.C. have legalized the drug for recreational or medical use, or both, the congress members stressed that the time is now for action at the federal level.

Last summer, the U.S. Department of Health and Human Services issued a formal request to re-categorize marijuana as a Schedule III substance under the rules and regulations of the Controlled Substances Act, which kicked off an ongoing review by the Biden-Harris administration. Since the lawā€™s enactment in 1971, cannabis has been listed as a Schedule I substance and, therefore, has been subject to the most stringent restrictions on and criminal penalties for its cultivation, possession, sale, and distribution.

Merkley acknowledged that re-scheduling would remedy the Nixon administrationā€™s ā€œbizarreā€ decision to house marijuana under the same scheduling designation as far more harmful and addictive drugs like heroin ā€” and noted that the move would also effectively legalize biomedical research involving cannabis. However, the senator said, while re-scheduling ā€œmay be a step in the right direction, itā€™s not de-schedulingā€ and therefore would not make real inroads toward redressing the harms wrought by decades of criminalization. Ā 

Likewise, as she accepted her award, Lee specified that she and her colleagues are ā€œworking night and day on the legalization, not re-scheduling.ā€ And her comments were echoed by Warren, who proclaimed in a prerecorded video address that ā€œde-scheduling and legalizing cannabis is an issue of justice.ā€

Congressional Republicans have blocked legislation to legalize marijuana, the Massachusetts senator said, ā€œand that is why the scheduling is so important,ā€ as it might constitute a ā€œtool that we can use to get this done without Republican obstruction.ā€

Warren, Merkley, and Schumer were among the 12 Senate Democrats who issued a letter in January to the U.S. Drug Enforcement Administration requesting transparency into its re-scheduling process while also, more importantly, demanding that the agency fully de-schedule cannabis, which would mean the drug is no longer covered by the Controlled Substances Act.

However, in a possible signal of political headwinds against these efforts, their Republican colleagues led by U.S. Sen. Mitt Romney (R-Utah) responded with a letter to DEA Administrator Anne Milgram ā€œhighlighting concerns over HHSā€™s recommendation to reschedule marijuana from a Schedule I to Schedule III-controlled substance.ā€ The GOP signatories, all of whom serve on the Senate Foreign Relations Committee, also sought to ā€œunderscore the Drug Enforcement Administrationā€™s (DEA) duty under the Controlled Substances Act (CSA) to ensure compliance with the United Statesā€™ treaty obligations under the Single Convention on Narcotic Drugs.ā€

As Norton noted during her prepared remarks, elected Democrats are not necessarily always on the same page with respect to expanding access to economic opportunity facilitated by cannabis. For instance, though President Joe Biden had promised, during his State of the Union address this year, to direct his ā€œCabinet to review the federal classification of marijuana, and [expunge] thousands of convictions for mere possession,ā€ Norton blamed Biden along with House Republicans for provisions in the federal budget this year that prohibit D.C. from using local tax dollars to legalize cannabis sales.

A non-voting delegate who represents the cityā€™s 690,000 residents in the House, Norton called the presidentā€™s position ā€œdeeply disappointing,ā€ particularly considering his record of supporting ā€œD.C. statehood, which would allow D.C. to enact its own policies without congressional interferenceā€ and grant its residents voting representation in both chambers of Congress. She added that the majority of Washingtonians are Black and Brown while all are held responsible for ā€œthe obligations of citizenship including paying federal taxes.ā€

Norton said the city should also have the power to grant clemency for crimes committed in the District, including cannabis-related crimes ā€” power that, currently, can only be exercised by the president.

Some Republican lawmakers have been at the forefront of efforts to reform harmful cannabis regulations. For instance, a participant in a mid-afternoon panel pointed to the CURE Act, a bill introduced by U.S. Reps. Nancy Mace (R-S.C.) and Jamie Raskin (D-Md.) that would prohibit the federal government from denying security clearances based on applicantsā€™ past or current use of cannabis.

While securing statehood for D.C. and de-scheduling cannabis via legislation or administrative action are perhaps, at least for now, a heavy lift, Merkley pointed to promising new developments concerning his SAFER Banking Act.

The Oregon senator first introduced the measure, then titled the SAFE Banking Act, in 2019, and he said the legislationā€™s evolution into its current iteration was difficult. ā€œRegulators donā€™t want to be told what to do,ā€ Merkley said, and negotiations with these officials involved ā€œnitty-gritty arguments over every word.ā€

Pushback also came from one of Merkleyā€™s Democratic colleagues. In September, Warnock, who is Georgiaā€™s first Black U.S. senator, voted ā€œnoā€ on the 2023 version of the SAFER Banking Act, writing: ā€œMy fear is that if we pass this legislation, if we greenlight this new industry and the fees and the profits to be made off of it without helping those communitiesā€ most harmed by the War on Drugs ā€œwe will just make the comfortable more comfortable.ā€

Warnockā€™s statement followed his pointed remarks expressing concerns with the legislation during a Senate Banking Committee hearing.

ā€œLet me be very clear,ā€ he said, ā€œI am not opposed to easing or undoing federal restrictions around cannabis. And I would support all of the provisions and reforms in this legislation if paired with broader cannabis reforms that substantively address the issue of restorative justice. This bill does not do that.ā€

At this point, however, the latest version of the SAFER Banking Act has advanced out of committee and earned the support of Senate leaders including Schumer and much of the Republican conference.

ā€œThis is the moment,ā€ he said. ā€œLetā€™s not let this year pass without getting this bill ā€” the safer banking bill ā€” through the House, through the Senate, and on the presidentā€™s desk.ā€

In her remarks, Lee also discussed the importance of business and industry-wide reforms like those in Merkleyā€™s bill.

ā€œWe have to make sure that the cannabis industry is viewed by everyone, especially our federal government, as a legitimate business,ā€ Lee said. ā€œLegitimate, which deserves every single aspect of financial services that any legitimate business deserves and has access to.ā€

Like Warnock, the congresswoman also highlighted how these financial and business considerations intersect with ā€œequity issues,ā€ as ā€œthose who have been most impacted by this horrible War on Drugsā€ must ā€œbecome first in line for the businesses and for the jobs and for the economic opportunity the cannabis industry provides.ā€

Reflecting on her experience introducing the Marijuana Justice Act in 2019, which was Congressā€™s first racial justice cannabis reform bill, Lee remembered how ā€œeveryone was like, ā€˜why are you doing this? Itā€™s politically not cool.ā€™ā€ Her legislation sought to end the federal criminalization of marijuana, expunge the criminal records of those convicted of cannabis-related crimes, and reinvest in communities that have suffered disproportionately from the War on Drugs.

The congresswoman said she explained to colleagues how the bill addressed ā€œmany, many layersā€ of often-intersecting problems linked to federal cannabis policy, telling them: ā€œThis is a criminal justice issue, a racial justice issue, an issue of equity, a medical issue, a veteransā€™ issue, and an issue of economic security.ā€

Two years later, with a 220-204 vote, the House successfully passed the Marijuana Opportunity Reinvestment and Expungement Act, a comprehensive bill introduced by U.S. Rep. Jerry Nadler (D-N.Y.) and to the Senate by then-U.S. Sen. Kamala Harris (D-Calif.). The measure included Leeā€™s Marijuana Justice Act.

ā€œThis bill is the product of many, many years of advocacy for federal cannabis reform and equity,ā€ she said in a statement celebrating the billā€™s passage. ā€œMake no mistake: This is a racial justice bill. Itā€™s about the thousands of people of color who sit in jail for marijuana offenses while others profit. Itā€™s about finally repairing the harms of the War on Drugs on communities and families across the country.ā€

ā€œWe’ve come a long way,ā€ she told the audience on Wednesday. ā€œAnd now we have a long way to go.ā€

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