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New Mexico AG won’t defend state marriage law

King latest to determine prohibition on same-sex marriage unconstitutional

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Gary King, New Mexico, gay news, Washington Blade

New Mexico Attorney General Gary King won’t defend state law against a lawsuit marriage equality (Photo public domain)

The attorney general of New Mexico has become the latest chief legal authority in a state to declare he won’t defend its marriage law in court.

In a 29-page filing on Tuesday, Attorney General Gary King said New Mexico’s marriage law is unconstitutional because the state constitution’s guarantee of equal protection to citizens demands same-sex couples “be permitted to enjoy the benefits of marriage.”

“There is no doubt that Article II [Section] 18 of the New Mexico Constitution requires the state to treat equally any of its citizens seeking legal recognition of their marriage, and that any statutory scheme interfering with that guarantee is flatly unconstitutional,” King said.

King issued the opinion in the case of Hanna v. Salazar, a state lawsuit that the National Center for Lesbian Rights and the American Civil Liberties Union of New Mexico filed on behalf of Alexander Hanna and Yon Hudson, a Santa Fe couple seeking marriage rights.

Taking a line from the Obama administration’s views on the Defense of Marriage Act, King argues that same-sex couples should be permitted to marry in New Mexico because the marriage law should be subject to heightened scrutiny, or a greater assumption it’s unconstitutional. The opinion maintains gay people are a suspect class based on their history of discrimination and their political powerlessness.

King, who’s expected to run for governor, is the latest in a series of state attorneys general who have elected not to defend a state’s marriage law on the basis that it prohibits same-sex couples from marrying. Others are California Attorney General Kamala Harris and Illinois Attorney General Lisa Madigan. Most recently, Pennsylvania Attorney General Kathleen Kane said she won’t defend her state’s marriage law against a lawsuit filed by American Civil Liberties Union.

Chris Stoll, a staff attorney for the National Center for Lesbian Rights, praised King for joining other attorneys general in deciding not to defend a law prohibiting same-sex couples from marrying.

“It’s great to see Attorney General King join many state officials around the country who have decided that excluding same-sex couples from marriage is indefensible under the constitution,” Stoll said. “These laws serve only to harm same-sex couples and demean their families and children while helping no one.”

The office of New Mexico Gov. Susana Martinez, a Republican who opposes same-sex marriage, didn’t respond to multiple requests from the Washington Blade to comment on King’s position.

But King’s opinion goes further than just determining that the state’s marriage law is unconstitutional. The filing also rejects an argument that same-sex marriage is already legal in New Mexico because the marriage law is gender neutral and doesn’t explicitly ban same-sex marriage.

King says the marriage law currently doesn’t allow same-sex marriage because the New Mexico’s statutory scheme uses both gender-specific and non-gender specific terms and because other states that had similar statutes determined gay couples can’t marry.

“State courts in New York, New Jersey, Massachusetts and Minnesota have considered analogous statutory schemes and concluded a mix of gender-specific and gender-neutral terminology does not convey the right for same sex couples to marry,” King writes.

The position that same-sex marriage is already legal in New Mexico under current law was a view put forward by Santa Fe officials, including the city’s mayor, David Coss, as part of a resolution approved in March.

Further, the attorney general rejects an argument that the New Mexico Supreme Court should issue a writ of mandamus so that plaintiffs in the case can receive a marriage license before the lawsuit ends. The couple had a filed a petition for mandamus as part of the relief.

“Issuing a writ of mandamus would to Respondent would thus represent an expansion of the jurisdiction conferred by Article VI [Section 3] and presents the very real threat of overloading the court’s docket with mandamus actions concerning any dispute a party has with any local and county official: county tax assessment protests, local zoning disputes, and any other dispute concerning only county or local officials would all be fair game,” King writes.

The opinion comes on the heels of a request from NCLR and ACLU for the New Mexico Supreme Court to issue a different writ of mandamus and take up the case so that it doesn’t have to proceed through lower courts. Stoll said that petition before the court is still pending.

“It asks the court to hold that the New Mexico Constitution requires the state to permit same-sex couples to marry, and also to respect the marriages of those married in other states,” Stoll said. “That petition remains pending alongside the one the attorney responded to yesterday.”

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After Biden signs TikTok ban its CEO vows federal court battle

“Rest assured, we aren’t going anywhere,” CEO said

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TikTok mobile phone app. (Screenshot/YouTube)

President Joe Biden signed an appropriations bill into law on Wednesday that provides multi-billion dollar funding and military aid for Ukraine, Israel, and Taiwan after months of delay and Congressional infighting.

A separate bill Biden signed within the aid package contained a bipartisan provision that will ban the popular social media app TikTok from the United States if its Chinese parent company ByteDance does not sell off the American subsidiary.

Reacting, TikTok CEO Shou Zi Chew said Wednesday that the Culver City, Calif.-based company would go to court to try to remain online in the U.S.

In a video posted on the company’s social media accounts, Chew denounced the potential ban: “Make no mistake, this is a ban, a ban of TikTok and a ban on you and your voice,” Chew said. “Rest assured, we aren’t going anywhere. We are confident and we will keep fighting for your rights in the courts. The facts and the constitution are on our side, and we expect to prevail,” he added.

White House Press Secretary Karine Jean-Pierre adamantly denied during a press briefing on Wednesday that the bill constitutes a ban, reiterating the administration’s hope that TikTok will be purchased by a third-party buyer and referencing media reports about the many firms that are interested.

Chew has repeatedly testified in both the House and Senate regarding ByteDance’s ability to mine personal data of its 170 million plus American subscribers, maintaining that user data is secure and not shared with either ByteDance nor agencies of the Chinese government. The testimony failed to assuage lawmakers’ doubts.

In an email, the former chair of the House Intelligence Committee, U.S. Rep. Adam Schiff (D-Calif.), who doesn’t support a blanket ban of the app, told the Washington Blade:

“As the former chairman of the House Intelligence Committee, I have long worked to safeguard Americans’ freedoms and security both at home and abroad. The Chinese Communist Party’s ability to exploit private user data and to manipulate public opinion through TikTok present serious national security concerns. For that reason, I believe that divestiture presents the best option to preserve access to the platform, while ameliorating these risks. I do not support a ban on TikTok while there are other less restrictive means available, and this legislation will give the administration the leverage and authority to require divestiture.”

A spokesperson for U.S. Sen. Alex Padilla (D-Calif.) told the Blade: “Senator Padilla believes we can support speech and creativity while also protecting data privacy and security. TikTok’s relationship to the Chinese Communist Party poses significant data privacy concerns. He will continue working with the Biden-Harris administration and his colleagues in Congress to safeguard Americans’ data privacy and foster continued innovation.”

The law, which gives ByteDance 270 days to divest TikTok’s U.S. assets, expires with a January 19, 2025 deadline for a sale. The date is one day before Biden’s term is set to expire, although he could extend the deadline by three months if he determines ByteDance is making progress or the transaction faces uncertainty in a federal court.

Former President Donald Trump’s executive order in 2020, which sought to ban TikTok and Chinese-owned WeChat, a unit of Beijing-based Tencent, in the U.S., was blocked by federal courts.

TikTok has previously fought efforts to ban its widely popular app by the state of Montana last year, in a case that saw a federal judge in Helena block that state ban, citing free-speech grounds.

The South China Morning Post reported this week that the four-year battle over TikTok is a significant front in a war over the internet and technology between Washington and Beijing. Last week, Apple said China had ordered it to remove Meta Platforms’s WhatsApp and Threads from its App Store in China over Chinese national security concerns.

A spokesperson for the ACLU told the Blade in a statement that “banning or requiring divestiture of TikTok would set an alarming global precedent for excessive government control over social media platforms.”

LGBTQ TikToker users are alarmed, fearing that a ban will represent the disruption of networks of support and activism. However, queer social media influencers who operate on multiple platforms expressed some doubts as to long term impact.

Los Angeles Blade contributor Chris Stanley told the Blade:

“It might affect us slightly, because TikTok is so easy to go viral on. Which obviously means more brand deals, etc. However they also suppress and shadow ban LGBTQ creators frequently. But we will definitely be focusing our energy more on other platforms with this uncertainty going forward. Lucky for us, we aren’t one trick ponies and have multiple other platforms built.”

Brooklyn, N.Y.,-based gay social media creator and influencer Artem Bezrukavenko told the Blade:

“For smart creators it won’t because they have multiple platforms. For people who put all their livelihood yes. Like people who do livestreams,” he said adding: “Personally I’m happy it gets banned or American company will own it so they will be less homophobic to us.”

TikTok’s LGBTQ following has generally positive experiences although there have been widely reported instances of users, notably transgender users, seemingly targeted by the platform’s algorithms and having their accounts banned or repeatedly suspended.

Of greater concern is the staggering rise in anti-LGBTQ violence and threats on the platform prompting LGBTQ advocacy group GLAAD, in its annual Social Media Safety Index, to give TikTok a failing score on LGBTQ safety.

Additional reporting by Christopher Kane

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Smithsonian staff concerned about future of LGBTQ programming amid GOP scrutiny

Secretary Lonnie Bunch says ‘LGBTQ+ content is welcome’

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Lonnie G. Bunch III, secretary of the Smithsonian Institution, appears before a Dec. 2023 hearing of the U.S. Committee on House Administration (Screen capture: Forbes/YouTube)

Staff at the Smithsonian Institution are concerned about the future of LGBTQ programming as several events featuring a drag performer were cancelled or postponed following scrutiny by House Republicans, according to emails reviewed by the Washington Post.

In December, Secretary Lonnie G. Bunch III appeared before a hearing led by GOP members of the Committee on House Administration, who flagged concerns about the Smithsonian’s involvement in “the Left’s indoctrination of our children.”

Under questioning from U.S. Rep. Stephanie Bice (R-Okla.), Bunch said he was “surprised” to learn the Smithsonian had hosted six drag events over the past three years, telling the lawmakers “It’s not appropriate to expose children” to these performances.

Collaborations with drag artist Pattie Gonia in December, January, and March were subsequently postponed or cancelled, the Post reported on Saturday, adding that a Smithsonian spokesperson blamed “budgetary constraints and other resource issues” and the museums are still developing programming for Pride month in June.

“I, along with all senior leaders, take seriously the concerns expressed by staff and will continue to do so,” Bunch said in a statement to the paper. “As we have reiterated, LGBTQ+ content is welcome at the Smithsonian.”

The secretary sent an email on Friday expressing plans to meet with leaders of the Smithsonian Pride Alliance, one of the two groups that detailed their concerns to him following December’s hearing.

Bunch told the Pride Alliance in January that with his response to Bice’s question, his intention was to “immediately stress that the Smithsonian does not expose children to inappropriate content.”

“A hearing setting does not give you ample time to expand,” he said, adding that with more time he would have spoken “more broadly about the merits and goals of our programming and content development and how we equip parents to make choices about what content their children experience.”

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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 — 52 vs. 37 percent — 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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