National
Prop 8 trial spotlights clash of cultures
Everyone packed into U.S. District Court Judge Vaughn Walker’s courtroom in San Francisco on Jan. 11 knew they were watching history.
On one side of the court sat lawyers Ted Olson and David Boies, partisan foes in Bush v. Gore. Now the straight pair pledged to prove that same-sex couples deserved the fundamental right to marry. For them, the meaning of the U.S. Constitution is at stake.
On the other side sat Republican attorney Charles Cooper and a handful of supporting lawyers. It was what some might consider a strange sight. After the passage of Proposition 8 in California, the loss of same-sex marriage in Maine, New York and New Jersey and the gloating by ProtectMarriage affiliates such as the National Organization for Marriage, the anti-gay forces looked weak. In fact, throughout the trial, they portrayed themselves as David fighting Goliath.
Retired philosophy professor Linda Hirshman, reporting for The Daily Beast web site, pronounced the matchup a modern day Scopes trial.
“In the confrontation between an irrefutable religious standard and a worldly empirical survey, the challenge to California’s prohibition on gay marriage reveals a fissure that runs throughout American history: Are we modern or are we medieval?” Hirshman wrote. “Do Americans live together in a social contract for our material well-being, or are we following ancient traditions of how to live, because tradition is a better teacher than reason? This issue does not surface often in the United States, but it did most powerfully almost 90 years ago in Scopes vs. the State of Tennessee, the ‘monkey trial.’ And it did so again this week.”
The Scopes trial pitted the teaching of secular science and intellectual freedom against traditional Bible-based Christian fundamentalism. It’s a clash as old as St. Thomas Aquinas’ “Summa Theologiae” and as fresh as the 2005 debate over whether creationism should be taught alongside the theory of evolution in the Kansas public school system.
For Prop 8 supporters, the trial is now posited as if freedom of religion itself is at stake. In a Jan. 26 column, “Putting Religion on Trial?”, NOM president Maggie Gallagher wrote that Olson and Boies are trying to invalidate the religious beliefs of millions of voters who hold that homosexuality is a sin and marriage is a sacrament between one man and one woman.
“The stakes are high. And the argument they will be asking the Supreme Court to endorse is this: Only bigotry, hatred and unreason explains why anyone cares about the idea that to make a marriage you need a husband and a wife — religious views of marriage are just anti-gay bigotry,” Gallagher wrote.
Anti-bigotry is one of the central elements to proving the case that lesbians and gays have historically been subjected to discrimination and deserve equal protection and due process under the U.S. Constitution. Walker, the Ninth Circuit Court of Appeals and perhaps the U.S. Supreme Court will decide if the plaintiffs proved that gays are a “discrete” minority, possess an “immutable” characteristic and are powerless to protect themselves in the political process.
“We said on the first day of [the] trial we would prove three things,” Boies said at a news conference after the evidentiary trial testimony ended Jan. 26. “Marriage is a fundamental right; that depriving gays and lesbians the right to marry hurts them and hurts their children; and there was no reason, no societal benefit, in not allowing them to get married.”
Evan Wolfson, founder of Freedom to Marry, said the arguments were compelling.
“Our side powerfully showed that California’s selective stripping away of the fundamental freedom to marry from a vulnerable minority lacked any legitimate reason, and harms families while helping no one,” he said. “Fourteen years and tens of millions of dollars after our Hawaii case, the anti-gay opponents had literally nothing new to put forward to defend the discriminatory denial of marriage.”
Olson and Boies entered reams of documents into evidence and put 17 witnesses on the stand. The plaintiffs spoke movingly about their loved ones and a slew of expert witnesses contributed a wealth of knowledge to the evidentiary record.
In some cases, the testimony was almost ironic. For instance, in his opening statement, Cooper said “the purpose of the institution of marriage, the central purpose, is to promote procreation and to channel narrowly procreative sexual activity between men and women into stable enduring unions. … [Marriage] is a pro-child societal institution.”
But Harvard University professor Nancy Cott noted that, “There has never been a requirement that a couple produce children in order to have a valid marriage. … And known sterility or barrenness in a woman has never been a reason not to allow a marriage. In fact, it’s a surprise to many people to learn that George Washington, who is often called the father of our country, was sterile.”
ProtectMarriage only called two of their five witnesses to the stand. So Olson and Boies introduced the depositions of the dropped witnesses into evidence, which appeared to bolster the plaintiffs’ case.
New Yorker contributor Margaret Talbot wrote that Boies’ cross-examination technique “was a little like watching your cat play with his food before he eats it.”
Indeed, Boies seemed to make mincemeat of official Prop 8 proponent Hak-Shing William Tam, who was called as a hostile witness. Tam stood by claims that gays were 12 times more likely to molest children, “based on the different literature that I have read.”
ProtectMarriage called California’s Claremont McKenna College political science professor Kenneth Miller, whose credibility as an expert on gay political power was mightily challenged by Boies on cross examination. Boies also read from a book Miller co-authored that ballot initiatives or “direct democracy can actually be less democratic than representative democracy.”
ProtectMarriage’s second witness, David Blankenhorn, was so combative, the judge reprimanded his demeanor. Boies had Blankenhorn, author of “The Future of Marriage,” go down a list of “possible positive consequences” of same-sex marriage and mark the statements with which he personally agreed.
Among the many positive statement with which Blankenhorn agreed were, “gay marriage would extend a wide range of the natural and practical benefits of marriage to many lesbian and gay couples and their children,” and “same-sex marriage would likely contribute to more stability and to longer-lasting relationships for committed same-sex couples.”
Chad Griffin, chair of the board of the American Foundation for Equal Rights, said he was thrilled that the trial put “those who attempt to provide justification for discrimination” under oath for the first time.
“I think they found in a court of law, it’s quite different from on a political campaign where you can say anything and get away with it,” Griffin said. “In a court of law, you’re under oath and you actually have to tell the truth — and you have to answer to those truths under oath. And I think that proved difficult for the defendant-interveners in this case.”
The White House
Four states to ignore new Title IX rules protecting transgender students
Biden administration last Friday released final regulations
BY ERIN REED | Last Friday, the Biden administration released its final Title IX rules, which include protections for LGBTQ students by clarifying that Title IX forbids discrimination based on sexual orientation and gender identity.
The rule change could have a significant impact as it would supersede bathroom bans and other discriminatory policies that have become increasingly common in Republican states within the U.S.
As of Thursday morning, however, officials in at least four states — Oklahoma, Louisiana, Florida, and South Carolina — have directed schools to ignore the regulations, potentially setting up a federal showdown that may ultimately end up in a protracted court battle in the lead-up to the 2024 elections.
Louisiana State Superintendent of Education Cade Brumley was the first to respond, decrying the fact that the new Title IX regulations could block teachers and other students from exercising what has been dubbed by some a “right to bully” transgender students by using their old names and pronouns intentionally.
Asserting that Title IX law does not protect trans and queer students, Brumley states that schools “should not alter policies or procedures at this time.” Critically, several courts have ruled that trans and queer students are protected by Title IX, including the 4th U.S. Circuit Court of Appeals in a recent case in West Virginia.
In South Carolina, Schools Supt. Ellen Weaver wrote in a letter that providing protections for trans and LGBTQ students under Title IX “would rescind 50 years of progress and equality of opportunity by putting girls and women at a disadvantage in the educational arena,” apparently leaving trans kids out of her definition of those who deserve progress and equality of opportunity.
She then directed schools to ignore the new directive while waiting for court challenges. While South Carolina does not have a bathroom ban or statewide “Don’t Say Gay or Trans” law, such bills continue to be proposed in the state.
Responding to the South Carolina letter, Chase Glenn of Alliance For Full Acceptance stated, “While Supt. Weaver may not personally support the rights of LGBTQ+ students, she has the responsibility as the top school leader in our state to ensure that all students have equal rights and protections, and a safe place to learn and be themselves. The flagrant disregard shown for the Title IX rule tells me that our superintendent unfortunately does not have the best interests of all students in mind.”
Florida Education Commissioner Manny Diaz also joined in instructing schools not to implement Title IX regulations. In a letter issued to area schools, Diaz stated that the new Title IX regulations were tantamount to “gaslighting the country into believing that biological sex no longer has any meaning.”
Governor Ron DeSantis approved of the letter and stated that Florida “will not comply.” Florida has notably been the site of some of the most viciously anti-queer and anti-trans legislation in recent history, including a “Don’t Say Gay or Trans” law that was used to force a trans female teacher to go by “Mr.”
State Education Supt. Ryan Walters of Oklahoma was the latest to echo similar sentiments. Walters has recently appointed the right-wing media figure Chaya Raichik of Libs of TikTok to an advisory role “to improve school safety,” and notably, Raichik has posed proudly with papers accusing her of instigating bomb threats with her incendiary posts about LGBTQ people in classrooms.
The Title IX policies have been universally applauded by large LGBTQ rights organizations in the U.S. Lambda Legal, a key figure in fighting anti-LGBTQ legislation nationwide, said that the regulations “clearly cover LGBTQ+ students, as well as survivors and pregnant and parenting students across race and gender identity.” The Human Rights Campaign also praised the rule, stating, “rule will be life-changing for so many LGBTQ+ youth and help ensure LGBTQ+ students can receive the same educational experience as their peers: Going to dances, safely using the restroom, and writing stories that tell the truth about their own lives.”
The rule is slated to go into effect Aug. 1, pending any legal challenges.
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Erin Reed is a transgender woman (she/her pronouns) and researcher who tracks anti-LGBTQ+ legislation around the world and helps people become better advocates for their queer family, friends, colleagues, and community. Reed also is a social media consultant and public speaker.
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The preceding article was first published at Erin In The Morning and is republished with permission.
Pennsylvania
Malcolm Kenyatta could become the first LGBTQ statewide elected official in Pa.
State lawmaker a prominent Biden-Harris 2024 reelection campaign surrogate
Following his win in the Democratic primary contest on Wednesday, Pennsylvania state Rep. Malcolm Kenyatta, who is running for auditor general, is positioned to potentially become the first openly LGBTQ elected official serving the commonwealth.
In a statement celebrating his victory, LGBTQ+ Victory Fund President Annise Parker said, “Pennsylvanians trust Malcolm Kenyatta to be their watchdog as auditor general because that’s exactly what he’s been as a legislator.”
“LGBTQ+ Victory Fund is all in for Malcolm, because we know he has the experience to win this race and carry on his fight for students, seniors and workers as Pennsylvania’s auditor general,” she said.
Parker added, “LGBTQ+ Americans are severely underrepresented in public office and the numbers are even worse for Black LGBTQ+ representation. I look forward to doing everything I can to mobilize LGBTQ+ Pennsylvanians and our allies to get out and vote for Malcolm this November so we can make history.”
In April 2023, Kenyatta was appointed by the White House to serve as director of the Presidential Advisory Commission on Advancing Educational Equity, Excellence and Economic Opportunity for Black Americans.
He has been an active surrogate in the Biden-Harris 2024 reelection campaign.
The White House
White House debuts action plan targeting pollutants in drinking water
Same-sex couples face higher risk from environmental hazards
Headlining an Earth Day event in Northern Virginia’s Prince William Forest on Monday, President Joe Biden announced the disbursement of $7 billion in new grants for solar projects and warned of his Republican opponent’s plans to roll back the progress his administration has made toward addressing the harms of climate change.
The administration has led more than 500 programs geared toward communities most impacted by health and safety hazards like pollution and extreme weather events.
In a statement to the Washington Blade on Wednesday, Brenda Mallory, chair of the White House Council on Environmental Quality, said, “President Biden is leading the most ambitious climate, conservation, and environmental justice agenda in history — and that means working toward a future where all people can breathe clean air, drink clean water, and live in a healthy community.”
“This Earth Week, the Biden-Harris Administration announced $7 billion in solar energy projects for over 900,000 households in disadvantaged communities while creating hundreds of thousands of clean energy jobs, which are being made more accessible by the American Climate Corps,” she said. “President Biden is delivering on his promise to help protect all communities from the impacts of climate change — including the LGBTQI+ community — and that we leave no community behind as we build an equitable and inclusive clean energy economy for all.”
Recent milestones in the administration’s climate policies include the U.S. Environmental Protection Agency’s issuance on April 10 of legally enforceable standard for detecting and treating drinking water contaminated with polyfluoroalkyl substances.
“This rule sets health safeguards and will require public water systems to monitor and reduce the levels of PFAS in our nation’s drinking water, and notify the public of any exceedances of those levels,” according to a White House fact sheet. “The rule sets drinking water limits for five individual PFAS, including the most frequently found PFOA and PFOS.”
The move is expected to protect 100 million Americans from exposure to the “forever chemicals,” which have been linked to severe health problems including cancers, liver and heart damage, and developmental impacts in children.
An interactive dashboard from the United States Geological Survey shows the concentrations of polyfluoroalkyl substances in tapwater are highest in urban areas with dense populations, including cities like New York and Los Angeles.
During Biden’s tenure, the federal government has launched more than 500 programs that are geared toward investing in the communities most impacted by climate change, whether the harms may arise from chemical pollutants, extreme weather events, or other causes.
New research by the Williams Institute at the UCLA School of Law found that because LGBTQ Americans are likelier to live in coastal areas and densely populated cities, households with same-sex couples are likelier to experience the adverse effects of climate change.
The report notes that previous research, including a study that used “national Census data on same-sex households by census tract combined with data on hazardous air pollutants (HAPs) from the National Air Toxics Assessment” to model “the relationship between same-sex households and risk of cancer and respiratory illness” found “that higher prevalence of same-sex households is associated with higher risks for these diseases.”
“Climate change action plans at federal, state, and local levels, including disaster preparedness, response, and recovery plans, must be inclusive and address the specific needs and vulnerabilities facing LGBT people,” the Williams Institute wrote.
With respect to polyfluoroalkyl substances, the EPA’s adoption of new standards follows other federal actions undertaken during the Biden-Harris administration to protect firefighters and healthcare workers, test for and clean up pollution, and phase out or reduce use of the chemicals in fire suppressants, food packaging, and federal procurement.
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