National
Supreme Court takes up Prop 8, DOMA cases
Justices to settle two major issues on same-sex marriage
The U.S. Supreme Court took up litigation challenging DOMA and Prop 8 (Washington Blade file photo by Michael Key)
Ending months of anticipation, the U.S. Supreme Court signaled on Friday it would take up litigation challenging California’s Proposition 8 and one case challenging the Defense of Marriage Act.
Justices decided to take up the case of Hollingsworth v. Perry, which seeks to overturn the state constitutional amendment California voters passed in 2008 that took away marriage rights for same-sex couples.
They also decided to take up Windsor v. United States, litigation challenging the constitutionality of the Defense of Marriage Act. That lawsuit was filed by Edith Windsor, a New York widow who was forced to pay $363,000 in estate taxes in 2009 upon the death of her spouse, Thea Spyer.
The court made the news in an orders list published Friday following a conference the justices held on the same day. Four justices must vote affirmatively to grant a writ of certiorari in any particular case, but that vote isn’t public information.
Windsor, 83, expressed excitement in a statement that her lawsuit would be the one to challenge DOMA at the Supreme Court. Her lawsuit was filed by the American Civil Liberties Union along with Paul, Weiss, Rifkind, Wharton & Garrison LLP and other groups.
“When Thea and I met nearly 50 years ago, we never could have dreamed that the story of our life together would be before the Supreme Court as an example of why gay married couples should be treated equally, and not like second-class citizens,” Windsor said. “While Thea is no longer alive, I know how proud she would have been to see this day. The truth is, I never expected any less from my country.”
This news that the court will take up the Perry case is disappointing to many who had hoped justices would decline to hear the litigation and allow a U.S. Ninth Circuit Court of Appeals decision striking down the measure to stand.
John Eastman, chair of the anti-gay National Organization for Marriage, said the decision of the Supreme Court to take up the Prop 8 lawsuit suggests justices are poised to reverse decisions from lower courts against the same-sex marriage ban.
“We believe it is a strong signal that the Court will reverse the lower courts and uphold Proposition 8,” Eastman said. “That is the right outcome based on the law and based on the principle that voters hold the ultimate power over basic policy judgments and their decisions are entitled to respect.”
Still, LGBT advocates expressed excitement that the Supreme Court has decided to take up the Prop 8 case and has the opportunity to rule against California’s same-sex marriage ban once and for all.
Human Rights Campaign President Chad Griffin – who also co-founded the American Foundation for Equal Rights, the organization behind the Prop 8 lawsuit – said the decision marks another “milestone” day for same-sex couples.
“The passage of Proposition 8 caused heartbreak for so many Americans, but today’s announcement gives hope that we will see a landmark Supreme Court ruling for marriage this term,” Griffin said. “As the Court has ruled 14 times in the past, marriage is a fundamental right and I believe they will side with liberty, freedom and equality, moving us toward a more perfect union as they have done in the past.”
The decision means litigation will continue at the Supreme Court and the court will rule on them by the middle of next year. Justices can affirm a Ninth Circuit decision striking down Prop 8 or uphold the anti-gay measure as constitutional. For DOMA, the court could either uphold the federal recognition of same-sex marriage, or strike it down and allow federal benefits to flow to same-sex couples.
No news was made on three other DOMA cases before the Supreme Court: the consolidated case of Gill v. Office of Personnel Management and Massachusetts v. Department of Health & Human Services; Pedersen v. Office of Personnel Management and Golinski v. United States. If justices declined to hear the cases at the Friday conference, it would be announced in another orders list set for publication on Monday.
Doug NeJaime, who’s gay and a professor at Loyola Law School, said justices may have elected to take up the Windsor case — the only DOMA lawsuit in which a federal appeals court ruled against DOMA by applying heightened scrutiny — to apply that same standard to Prop 8.
“If sexual orientation classifications merit heightened scrutiny, as the Second Circuit held, all laws that discriminate against lesbians and gay men – including state marriage prohibitions like Prop. 8 – would be suspect,” NeJaime said.
But NeJaime added taking up both Windsor and Perry may also mean justices see “a material distinction” between a federal law denying recognition to same-sex marriage and a state law preventing same-sex couples from marrying. That could mean the court will split the difference in its rulings, finding DOMA unconstitutional but upholding Prop 8.
In addition to announcing it would take up the litigation, the Supreme Court also asks parties involved in both cases to brief and argue certain questions.
For the Prop 8 case, the parties must answer whether proponents of the same-sex marriage ban have standing under Article III of the U.S. Constitution to defend the same-sex marriage ban in court. Whether anti-gay groups, such as Protect Marriage, have standing to defend the law in court has been a long-standing issue in the case. California Gov. Jerry Brown and California Attorney General Kamala Harris have refused to defend the law in court, leaving anti-gay groups left as the one’s responsible to defend the law.
For the DOMA cases, the court asks parties to answer two questions. The first is whether the executive branch agreement with the U.S. Second Circuit Court of Appeals that DOMA is unconstitutional deprives the Supreme Court of jurisdiction to hear the case. In February 2011, the Obama administration announced that DOMA is unconstitutional and it would no longer defend the law in court.
The second question related to DOMA is whether the House Republican-led Bipartisan Legal Advisory Group has standing to defend the law. After the Obama administration announced it would no longer defend DOMA, House Republicans under the leadership of Speaker John Boehner (R-Ohio) decided to take up defense of the law in the administration’s stead.
The Supreme Court has continually put off making a decision on whether to take up the Prop 8 and DOMA litigation. The cases were first docketed for the conference on Sept. 24, but made no decision at that time. The cases were then docketed for the Nov. 20 conference, but then rescheduled for Nov. 30. No decision was made at that later date. For the recent conference on Nov. 30, it was speculated justices put off making a decision because they needed to more time to decide which combination of the four DOMA cases it wanted to take up.
The next step in the process is for the petitioner — or the party that made an appeal to the Supreme Court — to file opening briefs. Generally, the deadline to do this is 45 days after the court has decided to take up a case. Opposing parties have 30 days to respond, and the petitioner has another 30 days to respond to that. Others parties during this time may also file friend-of-the-court briefs before the court.
Oral arguments will be scheduled by the clerk’s office and likely be announced next week. They’re expected to take place in late Winter or Spring of next year. The court must render a decision before its term ends in June.
No news was also made in another LGBT-related case before the Supreme Court related to Arizona domestic partner benefits. Gov. Jan Brewer appealed to court an injunction barring her from enforcing a law taking away benefits Arizona state employees with same-sex partners. As with the other DOMA cases, if justices have declined to hear the case at the Friday conference, their decision would be announced in another orders list on Monday.
The Comings & Goings column is about sharing the professional successes of our community. We want to recognize those landing new jobs, new clients for their business, joining boards of organizations and other achievements. Please share your successes with us at [email protected].
Congratulations to Gil Pontes III on his recent appointment to the Financial Advisory Board for the City of Wilton Manors, Fla. Upon being appointed he said, “I’m honored to join the Financial Advisory Board for the City of Wilton Manors at such an important moment for our community. In my role as Executive Director of the NextGen Chamber of Commerce, I spend much of my time focused on economic growth, fiscal sustainability, and the long-term competitiveness of emerging business leaders. I look forward to bringing that perspective to Wilton Manors — helping ensure responsible stewardship of public resources while supporting a vibrant, inclusive local economy.”
Pontes is a nonprofit executive with years of development, operations, budget, management, and strategic planning experience in 501(c)(3), 501(c)(4), and political organizations. Pontes is currently executive director of NextGen, Chamber of Commerce. NextGen Chamber’s mission is to “empower emerging business leaders by generating insights, encouraging engagement, and nurturing leadership development to shape the future economy.” Prior to that he served as managing director of The Nora Project, and director of development also at The Nora Project. He has held a number of other positions including Major Gifts Officer, Thundermist Health Center, and has worked in both real estate and banking including as Business Solutions Adviser, Ironwood Financial. For three years he was a Selectman, Town of Berkley, Mass. In that role, he managed HR and general governance for town government. There were 200+ staff and 6,500 constituents. He balanced a $20,000,000 budget annually, established an Economic Development Committee, and hired the first town administrator.
Pontes earned his bachelor’s degree in political science from the University of Massachusetts, Dartmouth.
Kansas
ACLU sues Kansas over law invalidating trans residents’ IDs
A new Kansas bill requires transgender residents to have their driver’s licenses reflect their sex assigned at birth, invalidating current licenses.
Transgender people across Kansas received letters in the mail on Wednesday demanding the immediate surrender of their driver’s licenses following passage of one of the harshest transgender bathroom bans in the nation. Now the American Civil Liberties Union is filing a lawsuit to block the ban and protect transgender residents from what advocates describe as “sweeping” and “punitive” consequences.
Independent journalist Erin Reed broke the story Wednesday after lawmakers approved House Substitute for Senate Bill 244. In her reporting, Reed included a photo of the letter sent to transgender Kansans, requiring them to obtain a driver’s license that reflects their sex assigned at birth rather than the gender with which they identify.
According to the reporting, transgender Kansans must surrender their driver’s licenses and that their current credentials — regardless of expiration date — will be considered invalid upon the law’s publication. The move effectively nullifies previously issued identification documents, creating immediate uncertainty for those impacted.
House Substitute for Senate Bill 244 also stipulates that any transgender person caught driving without a valid license could face a class B misdemeanor, punishable by up to six months in jail and a $1,000 fine. That potential penalty adds a criminal dimension to what began as an administrative action. It also compounds the legal risks for transgender Kansans, as the state already requires county jails to house inmates according to sex assigned at birth — a policy that advocates say can place transgender detainees at heightened risk.
Beyond identification issues, SB 244 not only bans transgender people from using restrooms that match their gender identity in government buildings — including libraries, courthouses, state parks, hospitals, and interstate rest stops — with the possibility for criminal penalties, but also allows for what critics have described as a “bathroom bounty hunter” provision. The measure permits anyone who encounters a transgender person in a restroom — including potentially in private businesses — to sue them for large sums of money, dramatically expanding the scope of enforcement beyond government authorities.
The lawsuit challenging SB 244 was filed today in the District Court of Douglas County on behalf of anonymous plaintiffs Daniel Doe and Matthew Moe by the American Civil Liberties Union, the ACLU of Kansas, and Ballard Spahr LLP. The complaint argues that SB 244 violates the Kansas Constitution’s protections for personal autonomy, privacy, equality under the law, due process, and freedom of speech.
Additionally, the American Civil Liberties Union filed a temporary restraining order on behalf of the anonymous plaintiffs, arguing that the order — followed by a temporary injunction — is necessary to prevent the “irreparable harm” that would result from SB 244.
State Rep. Abi Boatman, a Wichita Democrat and the only transgender member of the Kansas Legislature, told the Kansas City Star on Wednesday that “persecution is the point.”
“This legislation is a direct attack on the dignity and humanity of transgender Kansans,” said Monica Bennett, legal director of the ACLU of Kansas. “It undermines our state’s strong constitutional protections against government overreach and persecution.”
“SB 244 is a cruel and craven threat to public safety all in the name of fostering fear, division, and paranoia,” said Harper Seldin, senior staff attorney for the ACLU’s LGBTQ & HIV Rights Project. “The invalidation of state-issued IDs threatens to out transgender people against their will every time they apply for a job, rent an apartment, or interact with police. Taken as a whole, SB 244 is a transparent attempt to deny transgender people autonomy over their own identities and push them out of public life altogether.”
“SB 244 presents a state-sanctioned attack on transgender people aimed at silencing, dehumanizing, and alienating Kansans whose gender identity does not conform to the state legislature’s preferences,” said Heather St. Clair, a Ballard Spahr litigator working on the case. “Ballard Spahr is committed to standing with the ACLU and the plaintiffs in fighting on behalf of transgender Kansans for a remedy against the injustices presented by SB 244, and is dedicated to protecting the constitutional rights jeopardized by this new law.”
National
After layoffs at Advocate, parent company acquires ‘Them’ from Conde Nast
Top editorial staff let go last week
Former staff members at the Advocate and Out magazines revealed that parent company Equalpride laid off a number of employees late last week.
Those let go included Advocate editor-in-chief Alex Cooper, Pride.com editor-in-chief Rachel Shatto, brand partnerships manager Erin Manley, community editor Marie-Adélina de la Ferriére, and Out magazine staff writers Moises Mendez and Bernardo Sim, according to a report in Hollywood Reporter.
Cooper, who joined the company in 2021, posted to social media that, “Few people have had the privilege of leading this legendary LGBTQ+ news outlet, and I’m deeply honored to have been one of them. To my team: thank you for the last four years. You’ve been the best. For those also affected today, please let me know how I can support you.”
The Advocate’s PR firm when reached by the Blade said it no longer represents the company. Emails to the Advocate went unanswered.
Equalpride on Friday announced it acquired “Them,” a digital LGBTQ outlet founded in 2017 by Conde Nast.
“Equalpride exists to elevate, celebrate and protect LGBTQ+ storytelling at scale,” Equalpride CEO Mark Berryhill said according to Hollywood Reporter. “By combining the strengths of our brands with this respected digital platform, we’re creating a unified ecosystem that delivers even more impact for our audiences, advertisers, and community partners.”
It’s not clear if “Them” staff would take over editorial responsibilities for the Advocate and Out.
Comings & Goings
Kansas passes bathroom bounty hunter bill
ACLU sues Kansas over law invalidating trans residents’ IDs
After layoffs at Advocate, parent company acquires ‘Them’ from Conde Nast
Spring into sold
New book profiles LGBTQ Ukrainians, documents war experiences
PHOTOS: Queen of Hearts
Two very different views of the State of the Union
Va. activists preparing campaign in support of repealing marriage amendment
