The dating life of Rep. Chris Pappas (D-N.H.), one of seven openly gay members of Congress, became the focal point Wednesday night in a debate that got ugly with a personal attack from a Republican challenger who’s facing an ethics investigation.
Matt Mowers, who’s challenging Pappas to represent New Hampshire’s 1st congressional district in Congress, levied the attack in a debate already fiery over the federal government’s response to the coronavirus.
“With all due respect, you’ve been dating a corporate lobbyist who actually was lobbying on behalf of Amazon at a time when you went to cast 10 separate votes on Amazon’s behalf on bills they lobbied you on,” Mowers charged.
Pappas, in response, said the accusation was “not true” and in turn said Mowers has been “paid by pharmaceutical companies and D.C. special interests after you left the Trump administration.”
In fact, Mowers has been a consultant for at least two pharmaceutical companies. After filing an illegible financial disclosure form for his candidacy, Mowers was accused of trying to hide that work from New Hampshire voters, which led to a complaint now before the U.S. House Ethics Committee.
But Mowers wouldn’t let up in his attack, saying Pappas is “doing the bidding for a bunch of corporate special interest groups in D.C.”
“You are dating a corporate lobbyist,” Mowers said. “The fact of that matter is you never disclosed it.”
As the debate participants began talking over each other, Mowers made the false claim Pappas was required to disclose his dating life to the public.
“In fact, there’s actually rules and regulations,” Mowers said. You have to disclose that, especially gifts from lobbyists to the House Ethics Committee, something you’ve never done.”
Pappas, who continued to say the charge was “outrageous” and “not true,” said his opponent is “somebody who worked for the Trump administration.”
“I have read your financial disclosure, Matt,” Pappas said. “You get paid by big drug companies, you get paid by D.C. lobbying firms, you’re representing their interests, not the interests of the people of New Hampshire.”
Pappas hinted the criticism was a veiled attack on his sexual orientation, concluding, “To go after me personally is really disgusting, and there is no place for them on this debate stage.”
Following the debate, Pappas issued a statement calling Mowers’ attack on his dating life “despicable” and said it “crossed a line.”
“Members of the LGBTQ+ community have always been held to a different standard when running for office and Mr. Mowers’s baseless attacks perpetuate those same harmful lines of attack,” Pappas said. “New Hampshire voters saw gutter politics at their worst tonight, but true Granite Staters know that hate has no place in our state.”
Amy Coney Barrett, President Trump’s pick for the now vacant seat on the U.S. Supreme Court, fended off questions Tuesday during her confirmation hearing on whether she’d undo same-sex marriage, declining to disavow dissents to historic rulings for marriage equality from her mentor Antonin Scalia.
Sen. Dianne Feinstein (D-Calif.), top Democrat on the Senate Judiciary Committee, invoked the memory of gay rights pioneers Del Martin and Phyllis Lyon in questioning Barrett, recalling their wedding in 2008 after the California Supreme Court ruled in favor of marriage equality.
Feinstein, recalling when Martin died two months later that Lyon was ineligible for Social Security survivor benefits because of the Defense of Marriage Act, asked Barrett about Scalia’s dissent to the 2013 ruling striking down the Section 3 of DOMA, which barred federal recognition of same-sex marriage.
“Now you said in your acceptance speech for this nomination that Justice Scalia’s philosophy is your philosophy,” Feinstein said. “Do you agree with this particular point of Justice Scalia’s view that the U.S. Constitution does not afford gay people, the fundamental right to marry?”
Barrett insisted upon her confirmation “you would be getting Justice Barrett, not Justice Scalia.”
“I don’t think that anybody should assume that just because Justice Scalia decided a certain way that I would, too,” Barrett said.
Barrett, however, then invoked the rule associated with the late U.S. Associate Justice Ruth Bader Ginsburg, as is customarily done for judicial nominees, to avoid answering directly how she’d directly rule on same-sex marriage — which is consistent with her testimony and other judicial nominees seeking confirmation.
“No hints, no previews, no forecasts,” Barrett said. “That had been the practice of nominees before her, but everybody calls it the Ginsburg rule because she stated it so concisely and it’s been the practice of every nominee since since. So I can’t — and I’m sorry to not be able to embrace or disavow Justice Scalia’s position but I really can’t do that on any point of law.”
“You identify yourself with a justice that you like him would be a consistent vote to roll back hard fought freedoms and protections for the LGBT community,” Feinstein said. “And what I was hoping you would say is that this would be a point of difference where those freedoms would be respected and you haven’t said that.”
Barrett responded to Feinstein’s concerns by insisting she “has no agenda,” then went on to disavow discrimination on the basis of “sexual preference.”
“I do want to be clear that I have never discriminated on the basis of sexual preference, and would not ever discriminate on the basis of sexual preference,” Barrett said. “Like racism, I think discrimination is abhorrent.”
The term sexual preference is considered inappropriate — and offensive — to describe whether or not a person identifies as LGBTQ because it implies being LGBTQ is a choice. Instead, the standard terms are sexual orientation and gender identity (and in some circles, the term sexual identity is emerging as a broader term to encompass all aspects of the LGBTQ community).
Shannon Minter, legal director for the National Center for Lesbian Rights, criticized Barrett in a statement for using the term “sexual preference,” crediting such terminology with the prevalence of widely discredited conversion therapy.
“When Amy Coney Barrett used the term ’sexual preference’ in her testimony before the Senate today, she perpetuated the dangerous and false stereotype that being LGBTQ is not a fundamental aspect of identity, but a mere ’preference,’” Minter said. “This is why so many people, including many parents who send their children to conversion therapy, think being LGBTQ is a choice. As judges know, language matters.”
Upbraiding Barrett on the committee for use of the term sexual preference was Sen. Mazie Hirono (D-Hawaii), who said that was “offensive and outdated” language and “used by anti LGBTQ activists to suggest that sexual orientation is a choice.”
“It is not,” Hirono continued. “Sexual orientation is a key part of a person’s identity. That sexual orientation is both a normal expression of human sexuality and immutable was a key part of the majority’s opinion in Obergefell, which by the way Scalia did not agree with. So, if it is your view that sexual orientation is merely a preference, as you noted, then the LGBTQ community should be rightly concerned whether you would uphold their constitutional right to marry.”
Although Hirono continued in a tirade against Barrett she didn’t allow the nominee to address those remarks. Sen. Joni Ernst (R-Iowa) at the start of her questioning, gave the nominee an opportunity to clarify and apologize.
“I certainly didn’t mean to use a term that would cause any offense in the LGBTQ community,” Barrett said. “So if I did, I greatly apologize for that. I simply meant to be referring to Obergefell as holding with respect to same-sex marriage.”
An upcoming summit, intended to give LGBTQ federal workers an opportunity to meet and network, has been cancelled by organizers in accordance with President Trump’s recent executive order requiring review of diversity training in U.S. agencies to ban critical race theory, the Washington Blade has learned.
The Pride in Federal Service Summit, intended to take place virtually amid the coronavirus epidemic, was initially scheduled for Oct. 21-22 and an estimated 500 participants affiliated with the interagency LGBTQ affinity group for federal workers were expected to attend.
But according to an internal email shared with the Washington Blade, members of the Pride in Federal Service Summit planning committee announced Tuesday they were forced to postpone the event indefinitely — effectively cancelling it — to comply with Executive Order 13950, which Trump signed last month to ban critical race theory in employment despite consternation from proponents of anti-racism diversity training.
“The Pride in Federal Service Summit Planning Committee is disappointed to announce the postponement of the Summit,” writes Meghan Walter, a Portland, Ore.-based employee of the Department of Agriculture and president of Equality USDA, citing guidance from the U.S. Office of Personnel Management seeking to implement Trump’s executive order.
Multiple sources familiar with the event confirmed to the Washington Blade on condition of anonymity the email was accurate and the Pride summit was indeed cancelled.
“We do not have a timeline for rescheduling the summit, but anticipate no sooner than February 2021,” Walter writes. “The committee has made every effort to pivot in response to these memos and the EO and continue forward with the summit. The OPM guidance issued on Friday has drastically impacted our Summit plans and we see no alternative other than to postpone.”
Among the topics for the summit: Building resilient and inclusive employee resource groups, LGBTQ cultural competency, best practices for workplace inclusion and sexual orientation and gender identity non-discrimination policies in federal employment.
Organizers with Pride in Federal Service Summit didn’t respond late Friday to the Washington Blade’s inquiry about whether they had reached out to the Office of Personnel Management to confirm they couldn’t hold the event or whether it was cancelled based on an interpretation of the guidance on Trump’s order, nor when they first announced the event and whether that was before or after Trump signed the directive.
The OPM guidance, however, requires the submission of all trainings to the Office of Personnel Management and White House Office of Management & Budget by Nov. 22 for approval to ensure critical race theory, which posits white supremacy is maintained in society without active anti-racist intervention, plays no component.
“These divisive trainings constitute a malign subset of a larger pool of Federal agency trainings held to promote diversity and inclusiveness,” writes OMB Director Russ Vought in a Sept. 22 memo. “The sort of training at issue does neither; it sows division among the workforce by attempting to prescribe and impose upon employees a conformity of belief in ideologies that label entire groups of Americans as inherently racist or evil (e.g., critical race theory).”
The White House didn’t respond to the Blade’s request to comment on whether Trump is OK with the cancellation of the Pride event as a result of his executive order.
Trump, however, has railed against critical race theory as a source of harmful ideology and division in the federal government, addressing his order to abolish the training in response to a question from Chris Wallace last week in his debate with Joe Biden.
“If you were a certain person, you had no status in life,” Trump said. “It was sort of a reversal. And if you look at that the people, we would pay people hundreds of thousands of dollars to teach, very bad ideas and, frankly, very sick ideas and really, they were teaching people to hate our country, and I’m not going to do that, I’m not going to allow that to happen.”
A fiery and unexpected statement from U.S. Associate Justices Clarence Thomas and Samuel Alito Monday signaling their intent to undermine the Obergefell decision is raising questions about whether marriage rights for same-sex couples are in danger, especially with the possible addition of Amy Coney Barrett to the U.S. Supreme Court.
The statement, which is irregular and completely voluntary, was made in response to the denial of a petition to review the case of Kim Davis, a former county clerk in Kentucky who gained notoriety in 2015 for refusing to issue marriage licenses — both to same-sex couples and opposite-sex couples — based on her religious objections to Obergefell v. Hodges.
Thomas, in a statement co-signed by Alito, writes he concurs with the decision to deny review of the case, which has been percolating through the judiciary for some time, but says her request “provides a stark reminder of the consequences of Obergefell.”
“By choosing to privilege a novel constitutional right over the religious liberty interests explicitly protected in the First Amendment, and by doing so undemocratically, the Court has created a problem that only it can fix,” Thomas writes. “Until then, Obergefell will continue to have ‘ruinous consequences for religious liberty.’”
Thomas criticizes the Obergefell decision, accusing the majority of impairing religious liberty and belittling the views of objectors who oppose same-sex marriage on religious grounds.
“It would be one thing if recognition for same-sex marriage had been debated and adopted through the democratic process, with the people deciding not to provide statutory protections for religious liberty under state law,” Thomas said. “But it is quite another when the Court forces that choice upon society through its creation of atextual constitutional rights and its ungenerous interpretation of the Free Exercise Clause, leaving those with religious objections in the lurch.”
The willingness of two justices to signal they would to seek overturn precedent for marriage equality five years after it was established was a shock to observers who thought the issue had been resolved. Even President Trump has said he’s “fine” with the decision and thinks the matter “settled.”
Alphonso David, president of the Human Rights Campaign, said in a statement the message from Thomas and Alito “proves yet again that a segment of the Court views LGBTQ rights as ‘ruinous’ and remains dead set against protecting and preserving the rights of LGBTQ
“From eliminating hospital visitation rights and medical decision-making in religiously affiliated medical centers to granting businesses a license to discriminate against LGBTQ couples, ‘skim-milk marriage’ would have a devastating effect on our community’s ability to live freely and openly,” David added, quoting a now famous quip from the late Ruth Bader Ginsburg in 2013 during oral arguments against the Defense of Marriage Act.
Although the statement was signed by only two justices and a majority of five is needed to overturn marriage equality on the nine-member court, it raises questions about the confirmation of Barrett, whose nomination is still pending before the Senate Judiciary Committee after Trump picked her to replace progressive champion Ruth Bader Ginsburg.
If confirmed, Barrett — who’s known for having a conservative judicial philosophy —would take the place of a justice would was solidly in support of same-sex marriage, skewing the balance of the court further to the right.
David pointed out Barrett has said she openly holds the views of Antonin Scalia and Thomas and Alito “channel” the late justices with their statement.
“That fact, along with Barrett’s ties to anti-equality extremist groups who aim to criminalize LGBTQ relationships in the United States and abroad, shows that Barrett will only embolden these anti-equality extremist views on the Court,” David said, referring to Barrett admitting to having taken a fee to speak at a group associated with the anti-LGBTQ legal firm Alliance Defending Freedom.
The Washington Blade has placed a request with the White House on whether Trump thinks marriage rights for same-sex couples would be safe in the aftermath of the confirmation of Barrett to the high court.
Conservatives have already had wins on the Supreme Court with the confirmations of U.S. Associate Justices Neil Gorsuch and Brett Kavanaugh in the Trump administration. Neither, however, signed the statement, nor did U.S. Chief Justice John Roberts, who dissented from the Obergefell decision but has been siding with liberal justices in recent decisions.
James Esseks, director of the American Civil Liberties Union LGBT & HIV Project, said the statement from Thomas and Alito was “appalling” in the aftermath of same-sex couples having secured the right to marry and same-sex couples enjoying the right for five years.
“When you do a job on behalf of the government — as an employee or a contractor — there is no license to discriminate or turn people away because they do not meet religious criteria,” Esseks said. “Our government could not function if everyone doing the government’s business got to pick their own rules.”
Esseks continued Thomas’ statement puts into stark relief the possible consequences of the pending case before the Supreme Court of Fulton v. City of Philadelphia, which will decide whether a Catholic foster agency has a First Amendment right to reject same-sex parents and still obtain taxpayer funds through a government contract.
In the aftermath of Ginsburg’s death, legal observers have said the legality of religious-based refusals to LGBTQ people is the most vulnerable aspect of LGBTQ rights on the high court.
“That’s exactly what’s at stake in a case that will be argued on Nov. 4 — Fulton v. City of Philadelphia,” Esseks said. “We will fight against any attempts to open the door to legalized discrimination against LGBTQ people.”
Michigan Attorney General Dana Nessel, a lesbian, announced Thursday she has filed felony charges against conservative hoaxers Jacob Wohl and Jack Burkman — who have a history of deceit and unscrupulous dealings — for misleading robocalls discouraging Michigan residents from voting by mail.
Nessel said in a statement the robocalls, which were made in Black-majority areas around Detroit, go above and beyond those “flooding our cell phones and landlines each day” in a battleground state for the 2020 election.
“Any effort to interfere with, intimidate or intentionally mislead Michigan voters will be met with swift and severe consequences,” Nessel said in a statement. “This effort specifically targeted minority voters in an attempt to deter them from voting in the November election.”
The message discouraging voting by mail, Nessel said, “poses grave consequences for our democracy and the principles upon which it was built.”
“Michigan voters are entitled to a full, free and fair election in November and my office will not hesitate to pursue those who jeopardize that,” Nessel.
Wohl, 22, and Burkman, 54, are charged with four felony counts: One count of intimidating voters under election law; one count of conspiracy to commit an election law violation; one count of using a computer to commit to intimidate voters against election law; and using a computer to commit a crime of conspiracy.
The two face five years in prison and/or a $1,000 fine for intimidating voters, plus a $10,000 fine for conspiracy to commit that crime, while they face an additional seven years in prison and/or $5,000 for using a computer to commit those crimes, according to the charging papers.
The charges were filed Thursday in the 36th District Court in Detroit, where a judge found probable cause to support them, according to the Associated Press. Arraignment is pending for Wohl and Burkman.
Nessel said her office intends to work with local law enforcement if needed to secure the appearance of each defendant in Michigan, although it’s too early to say if formal extradition will be needed or if the two will voluntarily present themselves.
The robocalls allegedly created and funded by Wohl and Burkman, Nessel said, were targeted at nearly 12,000 residents in the Detroit-area urban in late August. The attorney general had previously warned Michigan residents of the calls at that time.
An audio recording of the robocall provided by Nessel’s office features a caller who sounds like a Black female who claims to be associated with an organization founded by Burkman and Wohl.
The caller, in a false claim according to Nessel’s office, tells people mail-in voting will allow their personal information to become part of a database used by police to track down old warrants and by credit card companies to collect outstanding debts.
“Don’t be finessed into giving your private information to the man,” the caller warns. “Stay safe and be aware of vote by mail.”
The caller also says, in another false claim according to Nessel’s office, the Centers for Disease Control and Prevention will use mail-in voting information to track people for mandatory vaccines.
But the calls aren’t limited to Michigan. In working with state attorneys general in New York, Pennsylvania, Ohio and Illinois, the Michigan attorney general found other states reported similar robocalls — around 85,000 made nationally — to urban areas with significant minority populations, according to a news statement.
Claims made in the call against mail-in voting are consistent with dubious complaints from President Trump, who has said publicly the system is rife with fraud, despite assurances from experts the voting system is sound.
Trump, who has suggested he wouldn’t accept the results of an election decided by mail-in ballots, has said explicitly said he’d might have to take up the results in the federal court. Trump also said declined to say he’d allow for a peaceful transition of power as result of the election.
Both Wohl — who has been banned for life from Twitter, but still communicates via his Instagram account and has an OnlyFans page — and Burkman have a long history of nefarious dealings aimed at protecting Trump and getting him re-elected.
An attempt to smear FBI investigator Robert Mueller with false sexual harassment charges was exposed, as well as a similar attempt to defame Anthony Fauci. The two made dubious accusations in the Democratic primary about against sexual impropriety against female candidates Elizabeth Warren and Kamala Harris.
Wohl and Burkman also reportedly sought to get a male student to make up charges Pete Buttigieg had sexually assaulted them, but the effort was exposed by the Daily Beast and went no where.
The Washington Blade has reached out to Wohl for comment on the charges. Burkman couldn’t be reached for a request to comment.
In August, Wohl said they suspected “leftist pranksters” were behind the robocalls because recipients were shown a caller ID that was Burkman’s mobile number, according to the AP. Burkman was quoted as saying the situation is “a joke” and threatening to sue for defamation.
A federal judge has ruled against the Trump administration in litigation challenging the transgender military ban, ordering the Defense Department to turn over documents it had previously on the policy withheld on the basis they were predecisional and deliberative before the restriction went into effect.
U.S. District Judge Marsha Pechman in Washington State, a Clinton appointee, issued an order Friday requiring the Trump administration to hand over documents requested as part of the discovery process for the lawsuit by October 5.
“This matter comes before the court upon defendants’ recent submission of documents for in camera review, filed in response to the court’s recent orders on defendants’ assertion of the deliberative process privilege,” Pechman writes. “After careful examination of each document submitted for in camera review, the court finds that the documents do not fall within the proper scope of the deliberative process privilege and orders defendants to produce the documents by October 5.”
The lawsuit, Karnowski v. Trump, was filed in 2017 by the LGBTQ group Lambda Legal and the group now known as the Modern Military Association of America on behalf of various plaintiffs, including transgender military service members and the Human Rights Campaign, against the ban.
Peter Perkowski, legal and policy director for the Modern Military Association of America, said via email to the Washington Blade the order is a victory in the ongoing lawsuit.
“The Trump-Pence administration has once again lost to legal scrutiny and can no longer hide critical documents related to Trump’s unconstitutional transgender military ban,” Perkowski said. “From the moment Trump recklessly tweeted his ban to the day the Department of Defense implemented it, it has always been crystal clear that this transgender military ban is based on nothing more than blatant discrimination.”
The lawsuit before Pechman in Washington State was filed after President Trump tweeted in 2017 he’d ban transgender people from the military “in any capacity,” but before the Pentagon under former Defense Secretary James Mattis completed his six-month policy and implemented restrictions based on his recommendations.
The case has been percolating through the Ninth Circuit for years. Although Pechman initially issued a preliminary injunction barring enforcement of the transgender military ban, the U.S. Supreme Court overturned that order, allowing the policy to go into effect as litigation proceeds.
At issue in the order Pechman granted Friday are documents related to the discovery process in the lawsuit, which compels the U.S. government to produce material relevant to the transgender military ban. Those documents are expected to demonstrate whether the Defense Department implemented policy against transgender people as result of Trump’s tweet, or whether the military determined it needed to exclude them as result of an independent review former Defense Secretary James Mattis was conducting at the time.
In the aftermath of Ruth Bader Ginsburg’s death, the resulting conservative shift on the U.S. Supreme Court may enhance the prospect of wins for religious freedom at the expense of LGBTQ rights, including in a pending lawsuit that will decide if a Catholic foster care center in Philadelphia can reject same-sex couples.
The remaining eight-member court will lack a reliably progressive voice as it adjudicates where to draw the line on contentious social issues—and that disparity will be compounded if President Trump gets to pick a replacement from his list of potential judicial nominees, many of whom with extensive anti-LGBTQ records.
Nan Hunter, a law professor at Georgetown University who has written on LGBTQ issues, said with Ginsburg gone the “biggest area of jeopardy for LGBT rights at the Supreme Court will be in the area of religious claims from anti-discrimination principles.”
“She was rigorous in assessing the impact of religious liberty claims with regard to protecting employees and others who are protected by civil rights laws,” Hunter said. “You can see that in Masterpiece Cake[shop] for example, or in the Christian law student case where she wrote the opinion, so the issues that I worry about most are the issues involving those sorts of religious grounds.”
The issue of religious freedom versus LGBTQ rights, in fact, is presently before the court in the case of Fulton v. City of Philadelphia. Catholic Social Services, which operates foster care services in Philadelphia, is asserting a First Amendment to reject same-sex couples as parents based on religious objections, even though it signed a contract with the city agreeing to abide by LGBTQ non-discrimination terms.
The Supreme Court is set to hear oral arguments in the case on Nov. 4, which is the day after Election Day. The stakes are incredibly high in the case because a ruling in favor of Catholic Social Services could mean exemptions for religious entities to all non-discrimination laws and policies—whether it be based on LGBTQ status or any other category, such as race, gender or national origin.
Lori Windham, senior counsel at Becket Law who’s set to argue on behalf of Catholic Social Services before the Supreme Court, previewed her argument on behalf of plaintiffs Sharonell and Toni Fulton in a conference call with reporters Tuesday, although she explicitly didn’t address how Ginsburg’s factors into her litigation plan.
“Our litigation strategy is what it always been,” Windham said. “Philadelphia has violated the Constitution, and done it in a way that is particularly harmful for foster moms like Sharonell and Toni, and for foster children. The city of Philadelphia admitted there were 250 children who were in institutions in Philadelphia and needed to be placed in loving homes, and yet it refuses to move any of those children into homes that are empty like Sharonell’s, just because thaws families work with Catholic Social Services of Philadelphia.”
Hunter said Ginsburg—who joined each of the landmark Supreme Court decisions for LGBTQ rights and is remembered as a steadfast LGBTQ ally—would have taken a skeptical view of the religious freedom claims raised by Catholic Social Services.
“I just don’t think Justice Ginsburg would stand for that,” Hunter said. “I think she would say that in a completely privately funded space, there are ways in which religious groups can live out what they believe their faiths commands them to do, but … the city has a right to use public funds and to contract with agencies that will abide by the city’s own anti-discrimination laws.”
One possibility is without Ginsburg, neither side in the case would be able to reach a majority and the court would issue a split 4-4 decision.
Jon Davidson, legal counsel for the LGBTQ group Freedom for All Americans, said “Ginsburg’s death is a serious blow to the LGBTQ community, among others” and a tied decision would leave the issue open to further litigation.
“If a new justice is not sworn in by Nov. 4, when the Fulton case is set for argument, and the court rules 4-4, that ruling would affirm the result of the 3rd Circuit, which rejected claims that a religious agency has a constitutional right to an exemption from a city nondiscrimination requirement in contracts under which the city pays groups to provide government foster care services,” Davidson said. “A tied decision, however, would not create any precedent binding on lower courts.”
Even with an 8-member court, there are signs a majority of the court could rule against LGBTQ families. Already three members on the court—Associate Justices Neil Gorsuch, Samuel Alito and Clarence Thomas—have signaled they would have granted relief to Catholic Social Services in a dissent to an earlier order the court had issued. That was before any briefing took place in the case at any level.
Moreover, Senate Republicans are chomping at the bit to replace Ginsburg with a Trump appointee before the presidential election in less than two months. They may succeed in confirming a justice such as Amy Coney Barrett, a judge on the U.S. Seventh Circuit Court of Appeals who’s Catholic and indicated her judicial philosophy is with infused with her religious views.
Davidson, however, said all is not lost if Senate Republicans get their way with a new confirmation, pointing to conservative justices who joined with liberal justices in LGBTQ rulings.
“The Fulton case is incredibly important. Its outcome could have broad implications for the application of nondiscrimination laws and government policies around the country,” Davidson said. “But even though freedom of religion matters to all of us as Americans, it shouldn’t be used to create a license to discriminate. The justices should oppose sweeping, extraordinary exemptions that could create a broad license to discriminate based on a taxpayer-funded agency’s religious beliefs, and we are hopeful that any new justice would recognize that as well.”
It wasn’t immediately clear at what point it would be too late for a newly confirmed Supreme Court justice to weigh in on the Fulton case. The Supreme Court public affairs office didn’t respond to repeated requests to comment on what the rules say for when a Senate confirmation would be too late for a justice to intercede on any particular case pending before the court.
Could past LGBTQ wins be in peril?
Meanwhile, fears persist with Ginsburg gone that LGBTQ victories previously won at the Supreme Court will be in jeopardy. The range of these victories include the decriminalization of same-sex relations in the U.S., same-sex marriage nationwide and, most recently, a guarantee that LGBTQ people are protected under civil rights laws.
Hunter, however, downplayed the idea these wins could be in peril, making the case they’re “thoroughly accepted in the law and in society more broadly.”
“For example, take Obergefell, you can’t unmarry people,” Hunter said. “I think the degree of acceptance of that issue is now so widespread throughout the country that I don’t think there would be any significant effort to try and reverse it. I just don’t think that would go there.”
Hunter made a similar assessment with the Supreme Court’s Lawrence v. Texas ruling in 2003, which struck down state laws criminalizing same-sex relations, and the Bostock v. Clayton County decision this year, which found anti-LGBTQ discrimination is a form of sex discrimination, thus illegal under Title VII of the Civil Rights Act of 1964.
“The power of Bostock was that it shifted the burden of inertia and Congress is so dysfunctional at this point that unless there’s a really transformational shift in the control of Congress, it’s unlikely to amend Title VII in either direction frankly — either to secure the decision in Bostock or to undo it,” Hunter said.
But while some past victories seem safe even with Ginsburg no longer on the court, chipping away at marriage equality remains a possibility.
Although the Supreme Court had ruled in favor of marriage equality nationwide in 2015, Arkansas had sought to relitigate the issue in 2017 the case of Pavan v. Smith by refusing to grant birth certificates to children reflecting same-sex parents where one parent is a birth mother, the other a same-sex partner. The Supreme Court affirmed Obergefell applies in the cases, but Gorsuch led a stinging dissent suggesting marriage equality has limits, including in the area of birth certificates.
Hunter conceded that marriage equality remains an issue around the edges, such as employers who don’t wish to recognize same-sex marriage in terms of spousal benefits.
“I think the issue in terms of marriage, there the concern would be whether such an extremely conservative majority could dominate the Supreme Court that although the right to marry would remain in place, there might be exceptions in terms of solely equal treatment of same-sex marriage at least by some employers or some institutions,” Hunter said. “And the most likely category would be religious institutions or religiously affiliated institutions, or even as we saw in Hobby Lobby businesses that are privately owned and owners claim to be acting on their religious beliefs in the way they run a business.”
Given the persistence in some of places of the U.S. were politicizing same-sex marriage would be still be politically popular, state actors might still be responsible. All it would take is one state to undermine marriage equality.
In fact, the question is before the Supreme Court in the form of a petition of review filed by the state of Indiana, which justices will consider ahead of the long conference at the start of its term next week. Indiana Attorney General Tom Fisher is asking the high court to review a U.S. Seventh Circuit Court of Appeals ruling that sided with a gay married couple who challenged the state’s birth records law.
Another issue that may soon come before the court is whether or not transgender people are guaranteed access to public restrooms consistent with their gender identity. The U.S. Fourth Circuit Court of Appeals refused this week to reconsider a decision determined Title IX of the Education Amendments of 1972 grants trans student Gavin Grimm access to shared facilities as a male. The next step in the case, if the Virginia school district continues litigation, would be a petition for review before the Supreme Court.
Davidson, however, cautioned he doesn’t expect the Supreme Court act on any of petition related to LGBTQ issues before it decides the Fulton case.
“While there are several cases touching on LGBTQ rights in which petitions for Supreme Court review are pending, I would be surprised if the Court granted review in any of those cases when it considers pending petitions on Sept. 29,” Davidson said. “I think it is more likely that the court will wait to decide Fulton before it takes on any additional LGBTQ cases.”
U.S. Associate Justice Ruth Bader Ginsburg, who joined major decisions for LGBTQ rights on the bench and was known as the “Notorious RBG” in progressive circles, has died at age 87, the Washington Blade has confirmed.
“Associate Justice Ruth Bader Ginsburg died this evening surrounded by her family at her home in Washington, D.C., due to complications of metastatic pancreas cancer,” a Supreme Court spokesperson said in a statement Friday evening.
Rea Carey, executive director of the National LGBTQ Task Force, said in a statement upon Ginsburg’s passing she was “a giant of justice, a champion for equality and progress.”
“Justice Ginsburg was an American hero and pioneer, a voice for so many marginalized people, leaving behind a legacy of courage, tenacity and historic impact in creating a better country and a better world for all of us,” Carey said. “We are all so grateful for all Justice Ginsburg has done for LGBTQ people, for women, for our ability to control our own bodies, for all that seek to move freedom forward in this country.”
Ginsburg’s death will light a bonfire in an already tumultuous political season, as emotions are heated and civil unrest — even violence — has gripped the country ahead of the 2020 presidential election. The fate of Ginsburg’s seat, who was strong proponent of abortion rights, will be seen as key to deciding whether or not abortion will remain legal in the United States.
With a seat vacant on the Supreme Court, the responsibility falls to the president of the United States to appoint a replacement who will be subject to Senate confirmation. For the time being that is Trump, who would have a Republican-controlled Senate to evaluate his pick before the election.
Senate Majority Mitch McConnell (R-Ky.), flip-flopping from rules he set in 2016 when he refused to allow a vote on the confirmation of Merrick Garland, said in a statement late Friday the situation is different from 2020 and Trump’s pick will get a vote..
“Americans reelected our majority in 2016 and expanded it in 2018 because we pledged to work with President Trump and support his agenda, particularly his outstanding appointments to the federal judiciary,” McConnell said. “Once again, we will keep our promise. President Trump’s nominee will receive a vote on the floor of the United States Senate.”
When conservative justice Antonin Scalia died in 2016, McConnell struck a different tune, saying he’d let the people speak their voice in the presidential election rather allow consideration of President Obama’s nominee Merrick Garland.
“This vacancy should not be filled,” McConnell said at the time. “The American people should have their say on this issue, so let’s give them a voice. Let’s let the American people decide.”
Trump has recently updated his list of potential Supreme Court picks, which include anti-LGBTQ choices such as U.S. Circuit Judge Kyle Duncan and James Ho of the U.S. Fifth Circuit Court of Appeals, as well as Sens. Ted Cruz (R-Texas), Tom Cotton (R-Ark.) and Josh Hawley (R-Mo.).
‘A force for good’
Appointed by former President Bill Clinton and confirmed in 1993, Ginsburg joined the majority for every decision for LGBTQ right from the Supreme Court.
Alphonso David, president of Human Rights Campaign, said in a statement Ginsburg was “a force for good — a force for bringing this country closer to delivering on its promise of equality for all.”
“Her decades of work helped create many of the foundational arguments for gender equality in the United States, and her decisions from the bench demonstrated her commitment to full LGBTQ equality,” David said. “She was and will remain an inspiration to young people everywhere, a pop culture icon as the Notorious RBG and a giant in the fight for a more just nation for all. We extend our deepest condolences to her family and loved ones.”
Among the rulings she joined was Romer v. Evans in 1996, which struck down Colorado’s anti-gay Amendment 2, Lawrence v. Texas in 2003, which struck down state laws criminalizing sodomy. Both decisions were early indications the nation was beginning to head into a different direction to accept.
Ginsburg also joined rulings that advanced same-sex marriage, including Windsor v. United States in 2013, which struck down the anti-gay Defense of Marriage Act; Hollingsworth v. Perry in 2013, which restored marriage equality to California after Proposition 8; and Obergefell v. Hodges, which struck down state bans on same-sex marriage and extended full marriage equality throughout the country.
For each of these rulings on marriage, justices were split 5-4, so Ginsburg weren’t on the court, the decisions may not have come out in favor of the LGBTQ community.
More recently, Ginsburg joined the decision in Bostock v. Clayton County, which found anti-LGBTQ discrimination is a form of sex discrimination, thus illegal under Title VII of the Civil Rights Act. The broad ruling grants protections to LGBTQ people wherever there are laws against sex discrimination, including employment, housing, health care and education.
Shannon Minter, legal director for the National Center for Lesbian Rights, said although former U.S. Associate Anthony Kennedy and U.S. Associate Justice Neil Gorsuch were the authors of major LGBTQ rights from the Supreme Court, Ginsburg was “the most important voice for LGBT people.”
“As a civil rights advocate, she litigated and won the groundbreaking cases that established strong constitutional protections for women,” Minter said. “As a Supreme Court justice, she authored key sex discrimination decisions that paved the way for the Court’s embrace of equality for same-sex couples in Obergefell and for LGBT workers in Bostock. She was our champion and the architect of an expansive vision of gender equality that was broad and capacious enough to include LGBT people. Without her influence and legacy, none of those landmark decisions would have been possible.”
Ginsburg herself became the first Supreme Court justice to conduct a same-sex wedding, marrying Kennedy Center President Michael Kaiser and economist John Roberts in 2013.
Kevin Jennings, CEO of Lambda Legal, said in a statement Ginsburg was an “irreplaceable giant” on the Supreme Court.
“Throughout her entire legal career, including her 27 years on the Supreme Court, Justice Ginsburg fought for the rights of those on the margins,” Jennings said. “From her time as a lawyer with the ACLU Women’s Rights Project to her years on the Supreme Court, Justice Ginsburg spoke with a clear and strong voice against inequality and gender discrimination. A long-standing ally of the LGBTQ community, her unwavering support, both on and off the bench, was a testament to her commitment to equality for all people.”
Faced with the Trump campaign’s attempt at LGBTQ outreach — an unprecedented effort from a Republican presidential nominee, especially from an incumbent who has built an anti-LGBTQ record — LGBTQ advocacy groups say they’re staying the course in their efforts to expose the real President Trump.
On the heels on the successful video of Richard Grenell, who’s gay and former acting director of national intelligence, dubiously calling Trump the “most pro-gay president” in history, the New York Times last week reported Trump, after years of anti-LGBTQ attacks in his administration, would make LGBTQ outreach a component of his campaign.
But LGBTQ advocates who spoke to the Washington Blade said Trump’s pivot to LGBTQ outreach hasn’t forced them to rethink strategy. In fact, they say they’re sticking with their plans as initially envisioned, confident the anti-LGBTQ actions from the Trump administration would speak for themselves.
Lucas Acosta, a spokesperson for the Human Rights Campaign, said “we were always going to ramp up our communications to LGBTQ voters and pro-equality voters about LGBTQ issues: this is what that strategy looks like.”
“Ric Grenell, like Donald Trump, is divorced from reality, and their attempts to gaslight pro-equality voters necessitates a response from HRC,” Acosta said. “It’s important that we highlight again for equality voters the reality of this administration’s record, that this is a horrifically anti-LGBTQ administration.”
Barbara Simon, a spokesperson for the media watchdog GLAAD, said highlighting Trump’s anti-LGBTQ record is consistent with its mission “to educate the public and the media about LGBTQ people and issues, and to ensure accurate and respectful coverage.”
“This strategy isn’t new or a response to the Trump administration’s seemingly late in the game outreach,” Simon said. “GLAAD has been holding the Trump administration accountable since day one, when the administration wiped any mention of LGBTQ from the White House website. We have since tracked more than 172 attacks of rhetoric and policy coming from the administration in our Trump Accountability Project. We have been calling out these attacks as they happen and pointing to the cumulative record as needed throughout the last three and a half years.”
Although they disavow they’re rethinking strategy, the response effort from LGBTQ advocates seeking to defend Biden and denounce Trump is apparent. The Human Rights Campaign in response to the Grenell video launched an online video, titled, “Liar, Liar,” asking viewers why they should believe Trump is pro-LGBTQ when he’s lied on so many other issues.
The Human Rights Campaign has also been blasting out to news outlets examples of Trump’s anti-LGBTQ actions in news statements, which culminated last week with a list of 50 attacks against the LGBTQ community and 50 ways Biden will help LGBTQ people.
In terms of Trump attacks, among the items name-checked are the transgender military ban, arguing before the U.S. Supreme Court LGBTQ people shouldn’t be covered under federal civil rights law, opposing the Equality Act and siding with taxpayer-funded religious child welfare agencies seeking to refuse placement into LGBTQ homes.
Also noted is a recent high-profile development: the Trump administration is denying gay couples citizenship for their children born overseas via surrogacy, citing language in the Immigration & Nationality Act restricting U.S. citizenship to biological kids. Asked by the Blade about the Trump administration’s litigation against these couples, White House Press Secretary Kayleigh McEnany said this week it was about surrogacy and had “nothing to do” with sexual orientation.
For its part, GLAAD bought ad time on Fox News for an ad titled, “The Conversation,” which depicts a Zoom call of a gay youth attempting to convince his Trump supporting mother to vote otherwise in the upcoming election.
“He’s hurting me,” the youth pleads, saying Trump is blocking changes to the federal law that would protect him from discrimination like being evicted because he’s gay. (It should be noted the legal landscape has changed significantly after the Supreme Court’s decision in Bostock v. Clayton County.)
Simon, however, insisted GLAAD’s ad on Fox & Friends was planned well in advance of any news Trump would attempt LGBTQ outreach.
“The ad buy was placed for the week of the Republican National Convention, well before Richard Grenell and the Log Cabin Republicans began their push to pinkwash the Trump administration’s record,” Simon said. “We responded to that as it happened, to loudly and forcefully set the record straight about the administration’s attacks against LGBTQ people.”
But who is actually the target of the Trump campaign’s new LGBTQ outreach? Observers told the Blade they think the audience is not LGBTQ voters, but suburban mothers who are fearful of discrimination against their children and friends.
Casey Pick, a lesbian D.C. attorney and former staffer with Log Cabin Republicans, expressed that sentiment in an email to the Blade.
“Instead of pro-equality policies, the Trump team and their allies are trying to reframe his abysmal record in a transparent attempt to win over LGBTQ Americans’ friends and family, particularly those suburban women polls consistently show they’re hurting with,” Pick said. “If they can neutralize the argument that Trump is hostile to LGBTQ rights, at least among those folks, it may help move the needle for them.”
Acosta said the votes of those suburban moms will be crucial in Michigan, Pennsylvania, Arizona and Wisconsin, which are considered swing states in the upcoming election.
“It’s actually an attempt to gaslight pro-equality voters like the Republican leaning suburban mom outside of Detroit, Philadelphia, Phoenix, or Milwaukee who has an LGBTQ kid and is hesitant about voting for Donald Trump,” Acosta said. “The Trump campaign is targeting conservative media, they’re going on Fox News and talking about this because they want to shore up and reassure those voters.”
Among other things, the Trump e-blast cites a 1974 quote from Biden on gays being a security risk as well as his votes for the anti-gay Defense of Marriage Act in 1996, a defense authorization bill in 1993 that made “Don’t Ask, Don’t Tell” the law of the land and an amendment in 1993 that barred HIV-positive people from entering the United States.
Samantha Zager, a Trump campaign spokesperson, built on the message that Trump is pro-LGBTQ, but Biden has little to show on his LGBTQ record, in response to a Blade inquiry on whether the Trump campaign thinks LGBTQ voters are persuadable.
“Joe Biden has spent nearly 50 years in politics offering nothing but lip service to the American people, including the LGBT community,” Zager said. “Biden, like so many other Democrats, is content to take voters and certain voting blocs for granted but President Trump ran to make America great for everyone – and he’s delivered for LGBT Americans in just his first term. From protecting and empowering the LGBT community, to appointing the first openly gay Cabinet member, to his commitment to end the criminalization of homosexuality around the globe, President Trump has given LGBT voters a multitude of reasons to support him this November.”
The next day after the e-blast, Outspoken, the newly launched media platform for Log Cabin Republicans, posted a response to the Human Rights Campaign’s list of anti-LGBTQ actions from the Trump administration, seeking to debunk all of them. Log Cabin subsequently tweeted it was the most highly viewed post on Outspoken since its launch.
“For HRC, GLAAD, and their associates, LGBT equality has been redefined to mean overreach, special treatment, and prioritizing one group’s rights over others,” says the post, which has no byline. “For those organizations, gays cannot have equality without state-sponsored persecution of other communities they deem hostile.”
Acosta called the Outspoken post “absurd,” taking particular issue with it minimizing the ongoing violence against Black transgender women, which he said isn’t consistent with the “reality we’re seeing on the ground,” and Trump’s lack of response to the issue.
The Outspoken post asserts based on data Black transgender women “experience violence at a lower rate than biological women nationwide” and much of the violence against them is because they “chose to put themselves in high-risk situations where the potential for violence is elevated, such as engaging in prostitution or drug-dealing.”
At least 26 transgender people have been murdered so far this year, including eight Black transgender women, according to a blog post from the Human Rights Campaign.
The Biden campaign didn’t respond to the Blade’s request for a comment for this article.
At the end of the day, Acosta predicted LGBTQ people wouldn’t waver in support for Biden at the polls, just as they came out strongly for Hillary Clinton in 2016.
“We’ve long known that LGBTQ people have had Donald Trump’s number,” Acosta said. “We’re the only community that performed better for Clinton vs. Trump in 2016 than Obama vs. Romney in 2012. LGBTQ people knew Trump was going to be an anti-equality president before he was even elected.”
The National LGBT Chamber of Commerce, the nation’s premier association for LGBTQ small business owners, has become the latest organization to endorse the Biden-Harris presidential ticket.
“The NGLCC is proud to endorse a champion for inclusion,” Justin Nelson, president of the National LGBT Chamber of Commerce announced Monday in a statement. “We need to elect a president with a commitment to LGBTQ equality, ending racism and racial violence, promoting small businesses and entrepreneurship, and ensuring a safe and equitable society for every American. Joe Biden is that candidate.”
According to the statement, the vote to endorse Joe Biden was unanimous. In its nearly 20-year history, the National LGBT Chamber of Commerce has only endorsed a candidate for president once before, when it endorsed Hillary Clinton in 2016, so the Biden is the second presidential candidate the organization has supported.
Cited by the National LGBT Chamber of Commerce is Biden’s support for the Equality Act, comprehensive legislation to ban anti-LGBTQ discrimination the candidate has pledged to sign into law within the first 100 days of his administration.
Although the U.S. Supreme Court’s ruling this year in Bostock v. Clayton County against anti-LGBTQ discrimination in the workforce applies to all laws banning discrimination on the basis, including credit, the National LGBT Chamber of Commerce cited as a concern lenders refusing to give money to LGBTQ-owned businesses, saying the Equality Act would fix that.
Biden continues to rack up endorsement of LGBTQ advocacy groups. Others supporting him are the Human Rights Campaign, the National Center for Transgender Equality Action Fund and the LGBTQ labor group Pride at Work. National Log Cabin Republicans, on the other hand, endorsed President Trump for re-election last year.
Reggie Greer, LGBTQ+ vote director for the Biden campaign, welcomed the National LGBT Chamber of Commerce’s support in a statement to the Washington Blade.
“Our campaign is deeply honored to receive the endorsement of the National LGBT Chamber of Commerce. LGBTQ+ businesses add $1.7 trillion to the economy each year, making LGBTQ+ business owners central to Vice President Biden’s plans to build a stronger, more equitable economy, promote entrepreneurship, tackle structural racism, fight systemic injustice, and end discrimination against LGBTQ+ people once and for all,” Greer said. “NGLCC’s endorsement of the Biden-Harris ticket — the most pro-equality ticket in American history — is a testament to their work to ensure LGBTQ+ people from all walks of life have a real and fair shot at the American dream.”