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Eyes on 10th Circuit for Utah, Okla. marriage arguments

Set to become first appeals court to hear post-DOMA case

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Regnerus, gay juror, National LGBT Bar Association, Gay News, Washington Blade

(Image courtesy Wikimedia Commons).

The progression of a marriage equality lawsuit to the U.S. Supreme Court will reach a significant milestone this month when, for the first time since landmark rulings last year, a federal appeals court will consider arguments on the issue of gay nuptials.

The U.S. Tenth Circuit Court of Appeals is set to hear oral arguments on April 10 in Denver in the case of Kitchen v. Herbert, the lawsuit that brought marriage equality briefly to the state of Utah, and will hear arguments April 17 in Bishop v. Smith, in which a lower court ruled Oklahoma’s ban on same-sex marriage is unconstitutional.

Doug NeJaime, a law professor at the University of California, Irvine, said he expects arguments from attorneys on behalf of same-sex couples during these arguments to focus on the impact of the states’ marriage bans on children.

“I expect we will see significant attention on the child centered rationales put forward by the state with responses regarding the detrimental impact on children raised by same-sex couples. Children are figuring prominently in these cases,” NeJaime said. “I also expect discussion about how Windsor affects the analysis of state bans on marriage.”

The harm to children raised by same-sex parents as a result of the Defense of Marriage Act was a significant factor in U.S. Associate Justice Anthony Kennedy’s decision last year against the ban. Numerous district courts have cited that language in their decisions striking down marriage bans.

The Tenth Circuit is one of five circuits where marriage equality cases are pending, but it’s hearing oral arguments sooner than the others following a decision to hear the litigation on an expedited basis.

Camilla Taylor, marriage director for Lambda Legal, said she’s optimistic both the Utah and Oklahoma cases are likely to succeed on the merits following the arguments.

“The briefing is extremely strong,” Taylor said. “There’s been a huge array of amicus briefs to go in. This will be the first oral argument in a federal circuit court, and so, of course it will be closely watched.”

Although the arguments mark the first time a federal appeals court has heard arguments on the marriage issue since the decisions against DOMA and California’s Proposition 8 last year, it’s not the first time ever a federal appeals court has heard arguments on whether a state can ban same-sex marriage. The U.S. Ninth Circuit Court of Appeals heard arguments in the case against Prop 8 in 2011 before striking down the amendment the following year.

The three-panel judge who’ll hear the marriage equality arguments in both cases consists of Judge Paul Kelly Jr., an appointee of President George H.W. Bush; Judge Carlos Lucero, a Clinton appointee; and Judge Jerome Holmes, an appointee of President George W. Bush.

Notably, Holmes was one of two judges that denied Utah’s request for a stay on same-sex marriages in Utah after a district court ruled the state’s marriage ban unconstitutional, but the U.S. Supreme Court stepped in to institute a stay.

Observers will likely be examining judges’ questions to make a prediction on the outcome of the ruling, though Lambda’s Taylor cautioned against placing too much emphasis on the line of questioning during the arguments.

“I think it’s always difficult to tell from oral arguments which way a court is likely to rule,” Taylor said. “I’m hoping folks won’t draw too many conclusions from which questions are asked because judges during oral arguments ask questions because they’re seeking the best formulated answer that they themselves wish to give in an opinion, so a question isn’t necessarily an indication of which way a court is likely to rule.”

Arguments in other appeals courts are somewhere down the line. The U.S. Fourth Circuit Court of Appeals, which is hearing the Virginia case, have set arguments for May 13. The appeals courts for the Fifth, Sixth and Ninth Circuits have not set a date as of Wednesday for arguments to hear the marriage equality issues.

According to the Human Rights Campaign, at least 55 marriage equality court cases are working their way through the courts across the country. These cases have been filed in 28 states — as well as Puerto Rico — and account for nearly 250 plaintiffs taking on state marriage bans.

As all of these cases make their way back to the Supreme Court, observers expect justices to take up one — if not all — of them during the year-long term beginning in fall 2014. That would likely mean a nationwide decision on marriage equality by the middle of 2015.

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The Vatican

American cardinal chosen as next pope

Leo XIV is from Chicago.

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(Screen capture via 12Porte/YouTube)

The College of Cardinals on Thursday elected Cardinal Robert Prevost from Chicago as the Catholic Church’s next pope.

Leo XIV’s election took place less than three weeks after Pope Francis died at Casa Santa Marta, his official residence at the Vatican. The conclave to choose his successor began on Wednesday.

Leo XIV, who was born in Chicago in 1955, is the first American pope.

Leo XIV was bishop of the Diocese of Chiclayo in Peru from 2015-2023. Francis made him a cardinal in 2023

“We salute the appointment of the new Pope Leo XVI,” said the U.S. Embassy in Peru on X.
“A celebration for the world’s Catholics, and a joy especially shared between the American people and the Peruvian people. From Chicago to Chiclayo.”

U.S. Rep. Robert Garcia (D-Calif.), a gay man of Peruvian descent, also congratulated Leo XIV.

“As a Catholic and Peruvian American, I wish Pope Leo XIV strength as he steps into his role as a global and spiritual leader,” said the California Democrat on X. “He has demonstrated that he believes in justice for the poor and immigrants. May his leadership reflect these ideals as he spreads peace across the world.”

Francis died on April 21 at Casa Santa Marta, his official residence at the Vatican. The conclave to choose the Argentine pontiff’s successor began on Wednesday.

The Vatican’s tone on LGBTQ and intersex issues softened under Francis’s papacy, even though church teachings on homosexuality did not change.

Francis, among other things, described laws that criminalize consensual same-sex sexual relations as “unjust” and supported civil unions for gays and lesbians. Transgender people were among those who greeted Francis’s coffin at Rome’s St. Mary Major Basilica before his burial on April 26.

The New York Times reported Leo XIV in a 2012 speech to bishops specifically cited “homosexual lifestyle” and “alternative families comprised of same-sex partners and their adopted children” when he said Western media and popular culture has promoted “sympathy for beliefs and practices that are at odds with the gospel”

Marianne Duddy-Burke, executive director of DignityUSA, a group that represents LGBTQ Catholics, traveled to Rome for the conclave.

She told the Washington Blade in a text message from St. Peter’s Square shortly after Leo XIV’s election that she “heard him speak” last October and “found him thoughtful and gently challenging.”

“[He] hasn’t said a lot since early 2010s. [I] hope he has evolved,” said Duddy-Burke. “His commitment to synodality is a hopeful sign.”

Her group later issued a statement.

“This election appears to signal a willingness to continue building on Pope Francis’s commitment to synodality and social justice,” said DignityUSA. “We pray that the needs of those whom our church has historically marginalized, including LGBTQ+ people and their families, will continue to be heard and addressed by the Vatican and other church leaders.”

Francis DeBernardo, executive director of New Ways Ministry, a Maryland-based LGBTQ Catholic organization, in a statement said there is “a special pride in having the first pope from the United States, his longtime ministry in Latin America most likely had an equally formative influence on his spirituality and approach to church issues.” DeBernardo, however, criticized Leo XIV’s 2012 comments.

“We pray that in the 13 years that have passed, 12 of which were under the papacy of Pope Francis, that his heart and mind have developed more progressively on LGBTQ+ issues, and we will take a wait-and-see attitude to see if that has happened,” he said.

“We pray that as our church transitions from 12 years of an historic papacy, Pope Leo XIV will continue the welcome and outreach to LGBTQ+ people which Pope Francis inaugurated,” added DeBernardo. “The healing that began with ‘Who am I to judge?’ needs to continue and grow to ‘Who am I, if not a friend to LGBTQ+ people?'” 

DignityUSA agreed.

“We express concern with the former Cardinal’s statements — as reported in the New York Times — in a 2012 address to bishops, where he stated that Western news media and popular culture fostered ‘sympathy for beliefs and practices that are at odds with the gospel’ including the ‘homosexual lifestyle’ and ‘alternative families comprised of same-sex partners and their adopted children.'” We note that this statement was made during the papacy of Benedict XVI, when doctrinal adherence appeared to be expected,” said the organization in its statement. “In addition, the voices of LGBTQ people were rarely heard at that level of church leadership. We pray that Pope Leo XIV will demonstrate a willingness to listen and grow as he begins his new role as the leader of the global church.”

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Vanuatu

Vanuatu lawmakers consider constitutional amendment to recognize two genders

Country decriminalized consensual same-sex sexual relations in 2007

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(Photo by butenkow/Bigstock)

Lawmakers in Vanuatu are considering an amendment to the country’s constitution that would recognize only two sexes: Male and female.

The Vanuatu Daily Post in an April 23 article quoted Vanuatu Christian Council Chair Collin Keleb, a pastor with the Presbyterian Church of Vanuatu, said the country “cannot allow someone from outside to influence or empower them (the LGBTQ community), which will cause them to go astray instead of maintaining and uniting ourselves as children of God.”

The country’s Council of Ministers has approved the proposed amendment. The Vanuatu Daily Post notes the government has said the measure would “align the country’s laws with the preambles of ‘Melanesian values and Christian principles’ upon which Vanuatu was founded.”

Vanuatu is an island country in the South Pacific that is located roughly 1,100 miles northeast of Australia’s Queensland state.

Consensual same-sex sexual relations have been decriminalized in Vanuatu since 2007.

It remains unclear when the proposed amendment will receive final approval.

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Virginia

Va. officials investigate Loudoun County schools over trans student in locker room

Boys’ complaints prompted LCPS to investigate them for Title IX violations

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Governor Glenn Youngkin and Attorney General Jason Miyares on Tuesday announced they have launched an investigation into how Loudoun County Public Schools has handled the case of three male high school students who complained about a transgender student in a boys’ locker room.

One of the boys’ fathers told WJLA that Loudoun County public schools launched an investigation into whether his son and the two other boys sexually harassed the student after they said they felt uncomfortable with her in the locker room at Stone Bridge High School in Ashburn.

“He was questioning why there was a female in the males’ locker room,” the father told WJLA. “And other boys were uncomfortable [with a female in the boys’ locker room].”

“There were other boys asking the same question,” he added. “They [LCPS] created a very uncomfortable situation. They’re young, they’re 15 years old. They’re expressing their opinions, and now they’re being targeted for expressing those opinions.”

WJLA notes Loudoun County public schools allows students to use bathrooms and locker rooms based on their gender identity. The father who spoke with WJLA said Loudoun County public schools should reverse the policy and dismiss the Title IX complaint it has brought against his son and the two other boys.

The Richmond-based Founding Freedoms Law Center is representing the boys and their families.

“It’s deeply concerning to read reports of yet another incident in Loudoun County schools where members of the opposite sex are violating the privacy of students in locker rooms,” said Youngkin in a statement that announced the investigation. “Even more alarming, the victims of this violation are the ones being investigated — this is beyond belief. I’ve asked Attorney General Miyares to investigate this situation immediately so that every student’s privacy, dignity, and safety are upheld.” 

 “Students who express legitimate concerns about sharing locker rooms with individuals of the opposite biological sex should not be subjected to harassment or discrimination claims,” added the Republican.

The Virginia Department of Education in 2023 announced the new guidelines for trans and nonbinary students for which Youngkin asked. Equality Virginia and other advocacy groups claim they, among other things, forcibly out trans and nonbinary students.

The U.S. Department of Education’s Office of Civil Rights in February launched an investigation into whether Loudoun County and four other Northern Virginia school districts’ policies in support of trans and nonbinary students violate Title IX and President Donald Trump’s executive order that prohibits federally funded educational institutions from promoting “gender ideology.”

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