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Marriage equality in all 50 states?

Some say Obama’s post-DOMA decisions pushing country in that direction

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Citizens Metal, Barack Obama, gay news, Washington Blade
Citizens Metal, Barack Obama, gay news, Washington Blade

President Obama is implementing the Supreme Court ruling against DOMA in a way that is speeding the pace toward national marriage equality. (Washington Blade file photo by Michael Key).

New policy decisions from the Obama administration in the wake of the Supreme Court decision striking down the Defense of Marriage Act are providing benefits for gay couples in a way that some observers say is advancing the pace toward national marriage equality.

In the months after the ruling in June, the U.S. government has announced historic decisions in affording the federal benefits of marriage to same-sex couples who are legally wed. Shortly after the decision, the U.S. Office of Personnel Management granted spousal health and pension benefits to gay federal employees, and just last week, the Pentagon announced it was implementing the benefits along the same lines for gay U.S. service members.

But to receive these benefits, gay couples must be in legal marriages as opposed to any other form of legally recognized relationship, such as civil unions or domestic partnerships. OPM announced in a series of memos in July couples in these unions aren’t eligible for federal benefits. And part of its rollout for same-sex spousal benefits, the Pentagon granted up to 10 days leave to allow same-sex couples to travel to a marriage-equality state to wed as opposed to honoring domestic partnerships for the purposes of benefits — retracting a pledge earlier in the year to provide them.

These changes mean gay couples living in the seven states that only offer civil unions or domestic partnerships — Colorado, Illinois, New Jersey, Oregon, Nevada, Hawaii and Wisconsin — will be left out in the cold in terms of federal benefits unless they travel to a marriage-equality state to wed and return. That doesn’t take into account rules for certain benefits — Social Security, taxes and family and medial leave — that for the time being extend only to legally married gay couples only if they currently reside in a state that recognizes their union and not to those who apply for them in non-marriage equality states.

The Obama administration’s insistence that gay couples be married to receive federal benefits is creating the policy that some observers say is leading the way toward national marriage equality by encouraging more states to adopt marriage rights for gay couples.

Lanae Erickson Hatalsky, a lesbian and director of social policy and politics for the centrist group known as Third Way, said this approach is an “organized way” to implement he Supreme Court’s decision against DOMA, but may also strategically advance marriage equality. In particular, she said it’ll demonstrate before the state courts hearing marriage equality litigation that civil unions aren’t marriage under the law.

“I think that’s pretty smart for state litigation purposes and also for ease of administration,” Erickson Hatalsky said. “The more we continue to make kind of a second-class status available at the federal level, the harder it’s going to be to take that step to what we all know is the goal. So, I think this is a pretty strategic way to kick things in that direction, whereas if you offer essentially a federal domestic partnership or civil unions, it undermines some of those arguments for why we do need marriage.”

In addition to battling for marriage equality in state courts in New Jersey, New Mexico and Illinois, LGBT advocates are pushing ahead with the legislative route for marriage equality in numerous states.

In New Jersey, advocates are seeking to overturn Gov. Chris Christie’s veto, and in Illinois, there’s a push underway to pass same-sex marriage legislation in the State House before the extended legislative session ends on Aug. 30. Lawmakers in Hawaii have also recently also met about passing marriage equality in the Aloha State. Each of these states already has civil unions.

Dan Pinello, who’s gay and a political scientist at the City University of New York, said the Obama administration’s decision to grant benefits only to legally married couples provides an incentive for lawmakers in these states to legalize same-sex marriage.

“The practical political effect of limiting federal benefits to legally married same-sex couples will be substantially to increase the pressure on states like Illinois and New Jersey to embrace marriage equality fully,” Pinello said.

But the prevailing notion among observers is that the Obama administration is extending benefits only to married gay couples  because the Windsor decision allotted for that change and any push toward national marriage equality as a result of that implementation is incidental.

Richard Socarides, a gay New York attorney who was an LGBT adviser for former President Clinton, said he thinks the Obama administration is not intending to advance same-sex marriage or to undermine civil unions through its implementation of the DOMA decision.

“Probably neither intentionally,” Socarides said. “Just doing what they think is legally appropriate.”

CUNY’s Pinello similarly said the Obama administration had little room in the way it’s implementing the decision because the majority opinion made no mention of civil unions.

“I don’t think that the Obama administration has much choice in the matter, because Justice Anthony Kennedy’s majority opinion in U.S. v. Windsor explicitly limits the Court’s decision to marriages,” Pinello said. “Civil unions and domestic partnerships aren’t within the holding of the ruling.”

Asked whether the administration had intended to advance marriage equality through its implementation of the DOMA ruling, a White House official, speaking on condition on anonymity, said the administration “is working to implement the Supreme Court’s ruling in compliance with the law.”

“The president has directed the attorney general to work with the Cabinet to review all relevant federal statutes to ensure this decision and its implications for federal benefits and obligations are implemented swiftly and smoothly,” the official added.

Still, the administration’s method of enhancing marriage rights for gay couples is a drastic change from President Obama’s declaration as a candidate in 2008 that civil unions “represent the best way to secure that equal treatment,” a position he held before evolving to embrace marriage equality last year.

And implementing the DOMA decision only for married couples doesn’t explain why the Pentagon withdrew domestic partners benefits after pledging to implement them in February. Defense Secretary Chuck Hagel said in the memo last week announcing the implementation of the benefits that domestic partnership benefits are “no longer necessary to remedy the inequity that was caused by Section 3 of the Defense of Marriage Act.”

Christie says couples in civil unions should receive fed’l benefits

Chris Christie, New Jersey, Republican Party, gay news, Washington Blade

Gov. Chris Christie (R-N.J.) (Washington Blade photo by Michael Key)

Meanwhile, at the other end of the spectrum is Chris Christie, whose recent brief in the New Jersey lawsuit seeking marriage equality, known as Garden State Equality v. Dow, contends civil unions within New Jersey should be included among the unions to which the federal government awards benefits. The argument is made in a brief arguing that the court shouldn’t grant summary judgment in favor of marriage equality in New Jersey.

“The examples are endless,” the brief states. “Suffice it to say that a sizable, but indeterminate, number of the over 1,000 benefits and responsibilities that were inapplicable to civil union couples because of DOMA are now available to them because they are spouses, husbands, wives, widows or widowers under New Jersey law.”

Arguably, his attorney’s brief is shifting the debate another way by encouraging the expansion of civil unions in its argument that states with civil unions should be rewarded with the federal benefits of marriage.

Gregory Angelo, executive director of Log Cabin Republicans, refuted the assertion of his organization’s sometime ally Christie, saying says marriage equality is the way to go in New Jersey and would clear up any confusion about awarding federal benefits of marriage in the state.

“Civil unions are not the same as civil marriage,” Angelo said. “In the wake of the DOMA decision we said that the focus was going to be on the states and that’s where we’re focused. The Obama administration’s decision to grant federal marriage benefits to gay couples also shows that there are gray areas emerging since the Court overturned Section 3 of DOMA. The best, cleanest, strongest way to ensure benefits is through legislative action.”

Plans are also set for a legislative fix to ensure that couples in domestic partnerships and civil unions can receive certain federal benefits. Rep. Linda Sanchez (D-Calif.) earlier this month introduced the Social Security Equality Act, which in addition to clarifying that married gay couples nationwide should receive Social Security benefits would also ensure they flow to couples in civil unions.

Additionally, Rep. Mark Pocan (D-Wis.) is expected to soon reintroduce the Domestic Partnership Benefits & Obligations Act — and the new version, according to a House aide in his office, is slated to provide gay federal employees in civil unions or domestic partnerships, like those in Wisconsin, with the federal benefits of marriage.

As this discussion is underway, the Human Rights Campaign is arguing that the federal benefits of marriage in some circumstances — notably Social Security benefits — should be available to gay couples in civil unions if they’re living in a state that recognizes them as spouses.

Michael Cole-Schwartz, an HRC spokesperson, said his organization is pursuing a dual track advocating for marriage equality in all 50 states as it pushes for federal recognition of civil unions for certain benefits.

“Under most federal laws, benefits are designed to flow to married couples, which is why civil unions and domestic partnerships have always been insufficient,” Cole-Schwartz said. “The issue is that marriage needs to be available to couples in every state so that no couple is denied recognition from the federal government. However there are cases where if a state recognizes a member of a civil union as a spouse under state law, federal benefits can flow to that person. We are advocating that those benefits be available to couples in civil unions and we await further guidance from federal agencies as to their plans for those situations.”

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Florida

DeSantis signs emergency bill that restores Fla. ADAP funding

Temporary funds to last through June 30

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Republican Florida Gov. Ron DeSantis (Screen capture/NBC News)

After the Florida Department of Health made huge cuts to the AIDS Drug Assistance Program in January, Republican Gov. Ron DeSantis has signed emergency legislation restoring HIV access to more than 12,000 Floridians.

Two months ago, as the Washington Blade reported, the Sunshine State cut the vast majority of those in ADAP by shifting the income levels required for eligibility — without following standard procedure when changing government policy outside of legislative or executive action.

The bill, signed by DeSantis on Tuesday, passed both chambers of the Florida Legislature unanimously and appropriates $30.9 million in emergency bridge funding through June 30, 2026. It restores Florida’s ADAP income eligibility to 400 percent of the Federal Poverty Level — the level it was prior to the January cuts. The legislation also requires the FDOH to submit detailed monthly financial reports to legislative leadership beginning April 1.

Under the old policy, eligibility would have been limited to those making no more than 130 percent of the federal poverty level, or $20,345 per year.

“For 10 weeks, 12,000 Floridians living with HIV did not know if they could fill their next prescription. Today, they can,” Esteban Wood, director of advocacy and legislative affairs at AIDS Healthcare Foundation, said in a statement.

The detailed reports now required to be sent to legislative leadership must include all federal revenues and expenditures, including manufacturer rebates; enrollment figures by county and insurance status; prescription utilization by drug class; and any projected funding shortfalls. This is the first time the Legislature has required this level of financial transparency from the program.

DeSantis signed the legislation one day after a Leon County Circuit Court judge denied AIDS Healthcare Foundation’s request for an injunction to block the significant changes the DeSantis administration is making to the program, which it claims faces a $120 million shortfall for calendar year 2026.

AIDS Healthcare Foundation, a national organization focused on protecting and expanding HIV healthcare access and prevention methods, filed a lawsuit over the change in eligibility, arguing the Florida Department of Health did not follow the laid out path for formally changing policy and was acting outside established procedures.

Typically, altering eligibility for a statewide program requires either legislative action or adherence to a multistep rule-making process, including: publishing a Notice of Proposed Rule; providing a statement of estimated regulatory costs; allowing public comment; holding hearings if requested; responding to challenges; and formally adopting the rule. According to AIDS Healthcare Foundation, none of these steps occurred.

The long-term structure of ADAP will be determined by the 2026–2027 fiscal year state budget, something that lawmakers have until June 30 to finish.

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India

Menaka Guruswamy celebrated as India’s first openly LGBTQ MP

Constitutional lawyer elected to Rajya Sabha on March 9

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Menaka Guruswamy (Screen capture via OxfordUnion/YouTube)

India’s LGBTQ community has found renewed hope in the election of Menaka Guruswamy, a lawyer who has argued before the Supreme Court, as the country’s first openly LGBTQ MP.

Guruswamy was declared elected unopposed to the Rajya Sabha, the upper house of Parliament, on March 9, representing West Bengal. The All India Trinamool Congress, the regional party that governs the state, nominated her.

Guruswamy is a constitutional lawyer who studied at Oxford University, Harvard Law School, and the National Law School of India University. She has argued several significant cases before the Supreme Court and is widely known for her work on constitutional law, civil liberties, and LGBTQ rights. 

Guruswamy was part of the legal team that successfully challenged Section 377 of the Indian Penal Code, a colonial-era law that criminalized consensual same-sex sexual relations, which the Supreme Court struck down in 2018. She has also written and spoken extensively on issues of democracy, rights and institutional accountability.

Ankit Bhupatani, a global diversity, equity and inclusion leader and LGBTQ activist, welcomed Guruswamy’s election. 

“This is significant not because Parliament needed a queer person, but because a queer person needed Parliament,” Bhupatani told the Washington Blade.

India has seen LGBTQ representation in elected office at the state and local levels, though it has remained limited. 

In 1998, Shabnam Mausi was elected to the Madhya Pradesh Legislative Assembly from the Sohagpur constituency, becoming one of the first openly transgender people to hold public office in India. Mausi’s election marked a rare moment of visibility for trans people in the country’s political system, where representation has historically been sparse. Since then, a small number of openly trans candidates have contested and, in some cases, won local and state elections, but no openly LGBTQ person had been elected to Parliament before Guruswamy.

Guruswamy and her partner, Arundhati Katju, who is also a lawyer, were part of the legal team that played a central role in the Section 377 decision.

Representing one of the plaintiffs, the two lawyers helped frame the case around constitutional guarantees of equality, dignity, and privacy. The Navtej Singh Johar v. Union of India ruling marked a watershed moment for LGBTQ rights in India.

“For too long, we have fought our battles only in courtrooms and on streets. Now, there is a seat at the table where laws are written,” said Bhupatani. “Whether that seat produces change depends entirely on how it is used. Representation without substance is decoration. But as a beginning, yes. This matters.”

Guruswamy later represented the plaintiffs in the Supreme Court’s 2023 marriage equality case, Supriyo v. Union of India, which a 5-judge panel heard in the spring of 2023. 

Along with other lawyers representing same-sex couples, she advanced arguments rooted in constitutional guarantees of equality, dignity, and personal liberty. The Supreme Court in a 3-2 decision on Oct. 17, 2023, declined to recognize same-sex marriage — holding that such a change falls within Parliament’s domain — but did acknowledge LGBTQ people face discrimination. The Blade previously reported the ruling underscored the court’s view that it could interpret the law, but could not create a new legal framework for marriage rights.

Bhupatani said Guruswamy’s election should not be seen as an immediate shift toward legislative action on LGBTQ rights, cautioning that such expectations may not align with political realities. He said her presence in Parliament could help sustain the issue in a way it has not been before, even as broader legal change is likely to take time.

“What she can do is keep the question alive inside Parliament in a way that it hasn’t been before,” Bhupatani said. “Legislative change in India on social questions usually takes longer than advocates want and shorter than skeptics predict. The 377 decriminalization seemed impossible until it wasn’t. Partnership rights will follow the same pattern eventually.”

Bhupatani added that while Guruswamy’s election may influence the pace of change, it does not, on its own, constitute a broader political movement.

“One person in Parliament, however extraordinary, is not a movement. She is an opening,” he said. “The 2023 ruling created a responsibility. Guruswamy’s election creates an opportunity to fulfill it from inside. Whether opportunity becomes outcome is entirely a question of human will.”

Guruswamy has served as a visiting faculty member at leading American institutions that include Yale Law School, Columbia Law School, and New York University School of Law. She has also worked with international organizations, advising the U.N. Development Fund for Women in New York and the U.N. Children’s Fund in both New York and South Sudan.

According to her professional profile, Guruswamy has been involved in a range of significant cases before the Indian Supreme Court that include matters related to bureaucratic reform and accountability. 

One case is connected to the AgustaWestland helicopter deal, an investigation into alleged bribery in a multimillion-dollar defense procurement contract; litigation arising from the Salwa Judum case, in which the court examined the state-backed use of civilian militias in counterinsurgency operations in central India; and cases involving the implementation of the Right to Education Act, a law guaranteeing free and compulsory education for children between the ages of six and 14.

More recently, Guruswamy represented the All India Trinamool Congress in legal proceedings challenging searches conducted by India’s Enforcement Directorate, a federal agency responsible for investigating financial crimes, including money laundering and violations of foreign exchange laws. The searches were carried out at the offices of the Indian Political Action Committee, or I-PAC, a political consulting firm that provides data-driven campaign strategy and election management services to political parties. The case raised questions about the scope of investigative powers and the use of federal agencies in politically sensitive matters.

Guruswamy’s engagement with LGBTQ rights has extended beyond courtroom advocacy into public constitutional discourse. 

On July 11, 2018, during hearings in the Section 377 case, she argued the criminalization law could not be justified on the basis of “social morality,” describing it as subjective and incompatible with constitutional guarantees, and framing the case as one fundamentally about “our humanity.” The Thomas Jefferson Foundation Medal in Law at the University of Virginia in February 2023 recognized Guruswamy and Katju for their work on LGBTQ rights.

Guruswamy has not responded to the Blade’s multiple requests for comment about her election.

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District of Columbia

Gay priest credited with boosting church support for LGBTQ Catholics

Fr. Tom Oddo’s biographer speaks at Dignity Washington event

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(Book cover image courtesy of Amazon)

The author of a biography of a U.S. Catholic priest said to have advocated for support by the Catholic Church of gay Catholics in the early 1970s has called Father Thomas ‘Tom’ Oddo a little known but important figure in the LGBTQ rights movement.

Tyler Bieber, author of the recently published book “Against The Current: Father Tom Oddo And the New American Catholic,” told of Oddo’s life and work on behalf of LGBTQ rights at a March 22 talk before the local LGBTQ Catholic group Dignity Washington.

Among Oddo’s important accomplishments, Bieber said, was his role as a co-founder of the national LGBTQ Catholic group Dignity U.S.A. in 1973 at the age of 29.

But as reported in the prologue of his book, Bieber presented details of the sad news that Oddo died in a fatal car crash in 1989 at the age of 45 in Portland, Ore., where he was serving as the highly acclaimed president of the University of Portland, a Catholic institution.

“He was a major figure in the gay rights movement in the 1970s, an unsung hero of that movement,” Bieber told Dignity Washington members, who assembled for his talk in a meeting room at St. Margaret Episcopal Church near Dupont Circle, where they attend their weekly Catholic mass on Sundays.

Tyler Bieber (Washington Blade photo by Lou Chibbaro, Jr.)

“And Dignity U.S.A. saw intense growth in membership and visibility” during its early years under Oddo’s leadership, Bieber said. “The story of Father Tom and his contemporaries is a story largely untold in the history of the gay rights movement, but one worth knowing and considering,” he said.

As stated in his book, Bieber told the Dignity Washington gathering Oddo was born and raised in a Catholic family on Long Island, N.Y., and attended a Catholic high school in Flushing Queens. It was at that time when he developed an interest in becoming a priest, according to Bieber.

After studying at the University of Notre Dame and completing his religious studies he was ordained as a priest in 1970 and began his work as a priest in the Boston area, Bieber said. It was around that time, Bieber told the Dignity Washington audience, that gay Catholics approached Oddo to seek advice on how they should interact with the Catholic Church. It was also around that time that Oddo became involved in a group supportive of then gay Catholics that later became a Dignity chapter in Boston.

In a development considered unusual for a Catholic priest, Bieber said Oddo in 1973 testified in support of gay rights bill before a committee of the Massachusetts Legislature and collaborated with then Massachusetts gay and lesbian rights advocate Elaine Noble.

In 1982, at the age of 39, Oddo was selected as president of the University of Portland following several years as a college teacher in the Boston area, Bieber’s book states. It says he was seen as a “vibrant and capable administrator who delivered real results to his campus,” adding, “His magnetism was obvious. One student described him as ‘John Kennedyesque’ to the university’s student newspaper.”

 Bieber said that although Oddo was less active with Dignity U.S.A. during his tenure as UP president, he continued his support for gay Catholics and what is now referred to as LGBTQ rights.

“For those that knew him prior to his term at UP, though, he represented something greater than an accomplished university administrator and educator,” Bieber’s book states. “He was a new kind of priest, a gay man living and ministering in a world set loose from tradition by the Second Vatican Council,” the book says.

It was referring to the Vatican gathering of worldwide Catholic leaders from 1962 to 1965 concluding under Pope Paul VI that church observers say modernized church practices to allow far greater participation by the laity and opened the way for sympathetic consideration of gay Catholics.

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