National
HISTORIC: Supreme Court hears arguments on DOMA
Issues of standing, discrimination against gays dominate hearing
Attorney Roberta Kaplan said DOMA violates equal protection rights under the U.S. Constitution for not just Windsor, but all married gay couples. (Washington Blade photo by Michael Key)
Questioning at the Supreme Court during oral arguments on Wednesday was just as intense as the previous day as justices grilled attorneys on standing and federalism issues related to the Defense of Marriage Act.
The prospects of the court striking down the 1996 law seem strong as no justices expressed any particular love for DOMA, but it’s possible the court may not reach consideration of the constitutionality of the law because of standing and jurisdiction issues.
Associate Justice Ruth Bader Ginsburg, a Clinton appointee, expressed concern over DOMA because benefits — including Social Security survivor benefits and access to family medical leave — and withheld from married same-sex couples under the law.
Under DOMA, Ginsburg said one might ask the question “What kind of marriage is this?” and compared the law to a statute that creates “full marriage, and then this sort of skim milk marriage.”
Associate Justice Anthony Kennedy, a Reagan appointee who’s considered a swing vote in the case, made a lot of inquiries on DOMA, but at one point may have tipped his hand when he talked about the “real risk” of encroaching on state power to define marriage.
At issue in the case is Section 3 of DOMA, which prohibits federal recognition of same-sex marriage. As a result of that 1996 law, Edith Windsor had to pay $363,000 in estate taxes in 2009 upon the death of her spouse, Thea Spyer.
The courtroom was just as packed for the DOMA arguments as it was for the Prop 8 arguments. Among those in attendance were Human Rights Campaign President Chad Griffin, Senior Adviser to President Obama Valerie Jarrett and House Minority Leader Nancy Pelosi (D-Calif.).
Roberta Kaplan, a New York-based private attorney working in coordination with the American Civil Liberties Union, said DOMA violates equal protection rights under the U.S. Constitution for not just Windsor, but all married gay couples.
“Because of DOMA, many thousands of people who are legally married under the laws of nine sovereign states and the District of Columbia are being treated as unmarried by the federal government solely because they are gay,” Kaplan said.
Arguing on behalf of DOMA was Paul Clement, a former U.S. solicitor general under President George W. Bush who was hired by House Republicans to defend the law after the Obama administration declined to do so in February 2011.
Clement said DOMA helps create uniformity for the federal government as the democratic process is underway deciding the issue of marriage.
“I do think for purposes of the federalism issue, it really matters that all DOMA does is take this term where it appears in federal law and define it for purposes of federal law,” he said. “It would obviously be a radically different case if Congress had, in 1996, decided to try to stop states from defining marriage in a particular way or dictate how they would decide it in that way.”
At one point, Associate Justice Elena Kagan brought up the House report from the passage of DOMA, quoting where it said Congress approved the law to “express moral disapproval of homosexuality.”
Clement responded by saying legislators having an “improper motive” shouldn’t be enough for the Supreme Court to overturn DOMA.
“And if that’s enough to invalidate the statute, then you should invalidate the statute,” Clement said. “But that has never been your approach, especially under rational basis or even rational basis-plus, if that is what you are suggesting.”
U.S. Solicitor General Donald Verrilli, who’s taken up litigation against DOMA on behalf of the Obama administration, also argued against DOMA on the basis of equal protection.
“What Section 3 does is exclude from an array of federal benefits lawfully married couples,” Verrilli said. “That means that the spouse of a soldier killed in the line of duty cannot receive the dignity and solace of an official notification of next of kin.”
Further, he said DOMA should be subject to heightened scrutiny, or a greater assumption it’s unconstitutional, because of the “terrible discrimination” faced by gay people throughout history.
Verrilli also disputed Clement’s argument that DOMA helps ensure uniformity for the U.S. government, saying “if anything, it makes federal administration more difficult.”
Standing was so much of an issue as part of the DOMA case that justices allotted extended time and the first half of the oral arguments to consider the issue.
There are two questions: whether House Republican-led Bipartisan Legal Advisory Group has standing to defend DOMA in court, and whether the Supreme Court has jurisdiction to hear the case because the U.S. government appealed even though it got what it wanted when the district ruled against the anti-gay law.
Vicki Jackson, a Harvard law professor hired by the court to answer these questions, made her case for why BLAG doesn’t have standing and the court doesn’t have jurisdiction to decide the issue.
Jackson said the U.S. government lacks standing to appeal because it has not asked the court to overturn lower courts’ decisions, it has asked to affirm them.
“The government has not asked this court to overturn the rulings below so it doesn’t have to pay the $365,000,” Jackson said. “It has asked this court to affirm. And the case or controversy requirement that we’re talking about are nested in an adversarial system where we rely on the parties to state their injuries and make their claims for relief.”
She also expressed doubts about BLAG’s standing, saying separation of powers “will not be meaningful” if Congress stays out of defense of a statute unless it thinks the executive branch is doing its job badly.
Clement maintained BLAG has standing because the House has an interest in preserving a law if the executive branch determines it won’t defend the measure in court.
“The House’s single most important prerogative, which is to pass legislation and have that legislation, if it’s going to be repealed, only be repealed through a process where the House gets to fully participate,” Clement said.
Associate Justice Sonia Sotomayor, an Obama appointee, expressed skepticism that BLAG has standing to defend DOMA in court.
“But the appointment of BLAG is strange to me because it’s not in the statute, it’s in the House rules,” Sotomayor said.
Deputy Solicitor General Sri Srinavasan argued the court has jurisdiction to defend DOMA, pointing to court precedent created under INS v. Chadha, an immigration-related case that came before the court in 1982. Srinavasan also said the U.S. government still suffers aggreivement, which allows it to appeal the case.
Associate Justice Antonin Scalia expressed displeasure with the Justice Department’s decision to stop defending the law and creating a situation where it’s appealing a case that was decided in its favor.
“I’m wondering if we’re living in this new world where the attorney general can simply decide, yeah, it’s unconstitutional, but it’s not so unconstitutional that I’m not willing to enforce it, if we’re in this new world, I don’t want these cases like this to come before this court all the time,” Scalia said.
It’s difficult to say if the court will rule on the basis of standing because justices challenged the views on whichever attorney was speaking — whether they arguing in favor of standing or not. A ruling on this basis would likely more limited on its impact on gay couples as opposed to a nationwide ruling striking down DOMA.
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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