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Dems breathe sigh of relief after New Mexico blowout

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After months of disappointing retirements, redistricting fears and a high-profile electoral shutout, House Democrats got some good news on Tuesday: They’re still in the fight for 2022.

Democrat Melanie Stansbury trounced her GOP opponent by two dozen points in a special election for a traditionally blue district in New Mexico. And while it’s hard to draw sweeping conclusions from a single race — especially in a safe seat — Democrats say the fact that Stansbury actually outperformed Joe Biden in the district has offered them a sliver of hope ahead of a midterm election that is typically brutal for the party in power.

“We’re very excited about what this race suggests — nothing is certain for 2022,” Rep. Sean Patrick Maloney (D-N.Y.), chair of the Democratic Congressional Campaign Committee, said of his party’s long odds going into the president’s first midterms.

“If there’s a backlash to Biden coming, there’s no visible evidence of it," he added. "To the contrary, it sure seems like people like the president’s agenda because that was the core of our candidate’s message.”

In a post-election analysis Wednesday, nearly a dozen Democratic lawmakers and strategists hailed the unexpectedly strong margins in New Mexico as a sign that their majority might not be doomed just yet. Stansbury’s triumph offers a template of how candidates can beat back the GOP’s “defund the police” attacks and ride on the popularity of Biden’s agenda, they said — particularly if Donald Trump’s voters decide to stay home.

Democrats acknowledge those are some big ifs. History is not on their side, and their party will need a lot to go right to maintain power, including recruitment and fundraising.

The president’s party typically loses an average of two dozen House seats in the first midterm. Right now, Democrats can only afford to lose five seats, and the 2022 battle will be fought on new maps, many of which will be drawn by Republicans.

Still, some Democrats say the New Mexico special election has helped them visualize a path to keeping the House. Rep. Teresa Leger Fernandez (D-N.M.), who has spent weeks campaigning in the district, said Stansbury was intentional about her message on the Democratic agenda, from Biden’s jobs package to voting rights, while dismissing GOP claims on policing and crime.

“Those blows did not land,” Leger Fernández said of the Republican attacks, adding: “People wanted to make sure that we keep our majority, and they saw that keeping this seat was a part of it.”

The Republican nominee’s vote share was nearly identical to 2018 — and 6 points below that of 2020. It’s the first inkling of what some Democrats hope is a “reverse Trump turnout effect” — with a voting base that looks a lot more like the blue wave of the last midterms compared to last November, when Democrats lost a dozen seats.

“There were quite a few people who voted in ‘20 who weren’t consistent voters. They came in and voted for Donald Trump, and apparently didn’t show up in this election,” said Rep. Debbie Wasserman Schultz (D-Fla.). But she cautioned: “Let’s not go crazy. We have a lot of seats where the margin is closer. But I think this is a formula that shows a pathway.”

Party leaders took the race seriously, particularly after an embarrassing shutout last month in a Texas special election. In that race, no Democratic candidate advanced to the two-person runoff in a rapidly diversifying suburban district here. But ahead of the New Mexico race, incumbents sent Stansbury infusions of cash, and First Lady Jill Biden and Second Gentleman Doug Emhoff campaigned with her.

Maloney even flew out to Albuquerque to spend Tuesday night in the district as the election returns came in. And in an interview Wednesday from the airport as he traveled home, he said he would be urging Democrats to copy Stansbury’s message and strategy.

Stansbury, a state legislator who also has a long resume in the federal government, ran heavily on Biden’s agenda, citing his American Rescue Plan and vision for an economic recovery. But she did so while facing a barrage of attacks from Republican Mark Moores, who accused her of wanting to empty all federal prisons, and disband ICE and Border Patrol.

“It provides a playbook for candidates across the country, but I think it’s a one-two punch,” Maloney said. “You’ve got to talk about growing the economy, creating jobs, ending the pandemic, delivering results — and also respond aggressively to these lies and distortions about defunding the police.”

Several Democratic strategists also pointed to Stansbury’s win as an indicator the political environment has not yet shifted rapidly beneath their feet. To be sure, the district has not seen a competitive race for over a decade, and Stansbury was heavily favored to win. But the fact that she overperformed both the president and her popular predecessor, now-Interior Secretary Deb Haaland, is notable.

And Stansbury did so in a district that’s roughly 50 percent Latino — a key victory after Democrats underperformed in several heavily-Latino districts last November.

“I know special elections, people always say the turnout is going to be terrible. But what we’ve seen so far… We know the Latino community made a difference,” said Rep. Tony Cárdenas (D-Calif.), who campaigned for Stansbury through BOLD Pac, the political arm of the Congressional Hispanic Caucus.

Stansbury’s massive victory could help DCCC lure both candidates and donors to its 2022 midterm operation. But it’s perhaps more important, according to some Democrats, that the party didn’t make any fatal mistakes that could sound the death knell for their majority.

“If we had collapsed, we would have had a retirement problem; we would have had a recruitment problem,” said one national Democratic strategist who works on House races and was granted anonymity to speak candidly. “We needed to do really well here to not have a meltdown.”

Haaland, who in 2018 became one of the first two Native American women ever elected to Congress, won reelection by 16 points in 2020, as Biden notched a 23-point win in the district. According to unofficial results, Stansbury cruised to a 24-point win over Moores, a state senator and former football player for the University of New Mexico who centered his campaign entirely on crime.

In a repeat of the GOP’s “defund the police” attacks from last November, Moores seized on Stansbury’s initial support of an activist-authored proposal called the BREATHE Act, which called for some policy prescriptions that would disband local police. Privately, some national Democrats viewed Stansbury’s support as a risky position.

In response, she tapped a retired local sergeant to cut a direct-to-camera spot touting her efforts to secure public-safety funds. On the stump, she stressed a commitment to giving police adequate resources while also taking steps toward criminal justice reform, an approach that Democrats said helped her fend off the attacks.

“This should be a lesson for Democrats about how to push back on the crime hit in a way that doesn’t alienate the left, but actually motivates your progressive base at the same time,” said Dan Sena, a former DCCC executive director and New Mexico native. “It can be done.”

That kind of GOP attack is not going away in 2022. And it’s certainly true that Moores lacked the resources to match Stansbury’s on-air rebuttal; she spent over $500,000 more on TV ads than he did, according to the media tracking service Ad Impact.

Republicans have fervently pushed back against any suggestion that the victory could bode well for Democratic prospects next fall.

“The fact that Democrats feel the need to celebrate holding a district President Biden carried by over 20 points tells you everything you need to know about the headwinds they face going into the midterm election," NRCC spokesperson Michael McAdams said.

Still, DCCC officials see the victory as a sign their recently completed autopsy of the 2020 election was correct. That report indicated that Democrats were stymied by the surge in turnout from low-propensity Trump voters and the potency of GOP attacks that many incumbents failed to counter adequately.

It’s far too early in the cycle to extrapolate, but some Democrats are optimistic that the early data suggests voters don’t appear eager to put a check on the Biden administration in the way they were during the first midterms of Trump and Barack Obama.

In 2017, Democrats did surprisingly well in special elections in deep-red districts. And even though they lost most of them, the close races served as a warning to Republicans that the midterms would be punishing. For example, now-Rep. Ron Estes (R-Kan.) had a 6-point win in a special election for a seat that Trump won by 27 points the year prior. And now-Rep. Debbie Lesko (R-Ariz.) notched a 5-point victory in a special for a seat Trump won by 21 points.

Democrats seized on those opportunities.

“In 2018, the nights of the special elections we spent on the phone recruiting,” said Sena, who ran the DCCC that cycle. “We used it to create momentum across the battlefield to get people into the races.”

Read more: politico.com

Unhappy Congress, uncertain cash — but the Capitol fence could stay

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Members of Congress can rarely reach bipartisan consensus on anything, but many of them agree that the Capitol fence should go. That doesn’t mean it will.

The debate over whether to keep the fence has dogged the Capitol after the insurrection on Jan. 6, as lawmakers try to strike a balance between providing security and restoring open access to the complex as visitors return. The fence is unpopular with both parties, and the money to maintain it is uncertain at best. Still, Hill security officials would have to reach tough decisions on fortification before bringing down the barrier — calls they don’t appear prepared to make any time soon.

The outer enclosure has already receded — with the remaining barrier surrounding only the Capitol building itself — and the concertina wire topping the remaining fencing has been removed. Thousands of National Guard troops who patrolled the perimeter alongside Capitol Police officers have departed.

The fate of the existing inner barrier, however, is a mystery.

The roughly $1.9 billion emergency funding package passed by the House last month set aside millions of dollars for future security upgrades around the Capitol complex, such as a “retractable” fence, while also banning the use of its funds for construction of permanent fencing. But that bill is unlikely to advance in the 50-50 Senate, where Republicans have balked at the price tag.

Top lawmakers are skeptical of further fortifying the Capitol, and it’s unclear what security upgrades would be possible without the cash included in the House-passed bill. Senate Appropriations Committee Chair Patrick Leahy (D-Vt.) said his panel would consider more security measures and added, “I want the Capitol secured, and I just don’t want it to look like a fortress.”

Senate Majority Leader Chuck Schumer, when asked about the status of the fence last week, deferred to recommendations from Senate Sergeant at Arms Karen Gibson. The New York Democrat added that “we need to protect the Capitol, but it shouldn’t be an armed camp, plain and simple.”

Even lawmakers who opposed the fence are agnostic about the timetable. Sen. Chris Van Hollen (D-Md.), who introduced legislation to ban permanent fencing around the Capitol, said in a brief interview the existing fencing should come down “at some point.”

The three-member Capitol Police Board has the final say on what happens to the remaining fence. That normally obscure panel has come under intense scrutiny from Congress due to communication breakdowns during the Jan. 6 insurrection, as lawmakers on both sides of the aisle blame its decision-making structure for the board’s slow response to crises. Its voting membership is composed of the Architect of the Capitol and the House and Senate Sergeants-at-arms, with the Capitol Police chief attending as a non-voting member.

The Architect of the Capitol deferred comment on the fence to the Capitol Police, and the Capitol Police entirely declined to comment on when the barrier might come down.

Missouri Sen. Roy Blunt, the top Republican on the Senate committee overseeing the Capitol grounds, said in a brief interview that the Capitol Police Board has not told him whether it would maintain the current fencing. Blunt made clear that he favored taking the fence down as soon as possible.

“I thought it should’ve come down at the end of March,” he said.

Sen. Jack Reed (D-R.I.), who chairs the Senate Appropriations panel overseeing the Capitol grounds, said in a brief interview that he wanted a “more permanent plan” to protect the legislative branch. He added that he hoped to see “conscious steps” taken toward that end, though he declined to elaborate or address whether a longer-term fence should be part of any plan.

The Capitol Police Board and its members have largely refused to tip their hand in public on what comes next, even after the fence’s future has prompted whiplash from Hill security officials. The Capitol Police said at the end of April they would re-install sections of a perimeter fence in anticipation of protest activity, but within hours the department abruptly reversed course.

On top of the specter of the violent Jan. 6 riot by supporters of former President Donald Trump, the death of a Capitol Police officer when an attacker drove a vehicle into a checkpoint at the beginning of April raised further questions about securing the premises. (Notably, the attacker crashed into a steel barricade that has long stood outside the fencing.)

Architect of the Capitol Brett Blanton last month told lawmakers that a facility evaluation "in the coming weeks" would help prompt initial security recommendations, including an evaluation of "physical security options" through the rest of the year.

A $30 million transfer from congressional appropriators earlier this year met most “immediate needs” in funding the fencing and the National Guard, Blanton said, while warning they’d need more money for further expenses.

Several Senate panels pursing investigations into the insurrection plan to release their own reports in the coming weeks, which are expected to detail potential fixes to security gaps around the Capitol. Perhaps the most hotly anticipated of those are the findings slated for release next week by the chamber’s Rules and homeland security committees.

But even before committees make their judgments — and certainly before Capitol security officials make their moves — senators are making clear that their appetite for a long-term barrier is low.

It’s “time to wean ourselves from that fence,” said Sen. Kevin Cramer. The North Dakota Republican added that it’s a “very uncomfortable situation to have a United States Capitol, in the freest country in the world, that is protected from the people who own it.”

Read more: politico.com

Obamas, Netflix ‘Educate’ Kids in New Animated Series

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Making good on their Netflix deal, former President Barack Obama and his wife Michelle are back to produce decidedly political content under our media’s turned-up noses. This time, our children are the latest target with an animated “musical” revue featuring all our favorite leftist hits.

On June 2, Netflix released the first trailer for a 10-episode series titled We The People. According to the press release, the series acts as “an exuberant call to action for everyone to rethink civics as a living, breathing thing and to reframe their understanding of what government and citizenship mean in a modern world.” The intended young audience is emphasized as the show aims for “educating children on United States civics lessons” through animated sequences and musical numbers. Currently, We The People is expected to air on July 4.

If the Obamas producing a children’s series aimed to “educate” kids sounds blatantly political, it gets worse. The series is also produced by fellow Netflix dealmaker, blackish creator, and hater of Donald Trump Kenya Barris. Performers for the series also include Adam Lambert, Lin-Manuel Miranda, H.E.R., Bebe Rexha, Janelle Monáe, Brandi Carlile, Daveed Diggs, Andra Day, and poet Amanda Gorman. Basically, if a singer ever shared a thought left of Bernie Sanders, they’re probably in this series.

While politics is not the explicit motivation behind this series, I highly doubt media would be so calm about this project if say Donald Trump produced an animated civics series featuring an all-conservative lineup. This Fourth of July, try to truly educate yourself by avoiding this series.

Read more: newsbusters.org

How Cory Booker is wielding newfound Senate power

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Cory Booker can still vividly recall the first time a police officer drew a gun on him.

Growing up in suburban New Jersey, he had his share of negative experiences with the police — an unfortunate rite of passage for many Black Americans. But he describes his college years in the wealthy and mostly white Northern California enclave of Palo Alto as the period when “the fear was at its highest in my life.” In one terrifying moment, Booker said the police stopped him and accused him of stealing his own car.

“It seemed like half the police force came out and they kept me, sitting in my car, screaming at me commands," the New Jersey senator recounted in a recent interview in his Capitol office. "And ultimately, the only excuse they gave me was that I fit the description of somebody that they were looking for.”

Booker said the “incidents just started racking up” after his parents bought him a car when he was a Stanford University sophomore. “You have these humiliating experiences, where you just feel helpless, and like a razor edge of the wrong move could get you shot."

Thirty years later, the Democrat has those memories in mind as he leads police reform negotiations alongside Sen. Tim Scott (R-S.C.) and Rep. Karen Bass (D-Calif.). It’s a daunting task that, if it ends in a workable deal, could help deter police brutality toward people of color after years of tragic killings. It’s also a new chapter for the genial 52-year-old, whose presidential run on a message of love and unity ran aground but who now finds himself positioned to wield power with a new audience — his own colleagues.

Booker has come a long way from the partisan combatant he’s occasionally played for his party, particularly during the bitter Supreme Court confirmation fight over Brett Kavanaugh in 2018. These days, he looks like a budding deal-maker in the mode of the sitting president, in whose administration many of Booker’s former staffers hold prominent posts.

Even though his own White House bid did not go as he’d hoped, Booker says he’s at “a strange moment in my life” at which he can finally count close ties to Joe Biden’s team, good relationships throughout the Senate, and a personal friend-plus-former colleague in Vice President Kamala Harris. He’s also wielding the gavel on an influential Judiciary Committee subpanel.

“People are starting to see Cory for who he is,” said Sen. Brian Schatz (D-Hawaii), a longtime friend. “In this building, people often think that you have to pick your path: you’re either the workhorse or the show horse. And I think he’s demonstrating he’s here to get something done, not just to be world famous. He was already world famous before he showed up.”

Unlike Sen. Kirsten Gillibrand (D-N.Y.), who also mounted a presidential campaign that failed, Booker says he doesn’t know whether he wants to make another run for the White House. He noted that Biden is likely to run for reelection and that Harris “by all measure is on deck.” Those close to Booker confirmed the presidency is not on his mind.

“I’m happy I did and I’m a much better senator because I did” run in the 2020 primary, he said. “I’ve now sort of conceded to the truism that my life speaks to — and I think most people’s lives do — that the best way to make God laugh is to make plans for yourself."

First elected to the Senate in 2013 after serving as mayor of Newark, N.J., Booker played a central role in shepherding 2018’s bipartisan criminal justice reform law, which eased strict sentencing practices and improved prison conditions. But that work was different than this year’s talks on overhauling American policing after years of brutal encounters between officers and people of color. Policing bill negotiators say they’re making steady progress and keeping the outside groups they need in the fold, while also keeping discussions closely held to a small circle of lawmakers.

The New Jersey Democrat put the odds of reaching an agreement as “far more likely than not,” but acknowledged the process is grueling, often lasting into the weekends. Major sticking points remain, including addressing differences on qualified immunity, the legal doctrine that shields police officers from being sued by brutality victims and their families.

And the effort’s success will hinge in large part on Booker’s relationship with Scott, the only Black Republican senator.

Senate Judiciary Chair Dick Durbin (D-Ill.), another police reform negotiator whom Booker counts as a mentor, says he is “realistic” about the odds of reaching a compromise.

“It’s a very tough issue,” he said. “It’s quite controversial. But Cory and Tim, I think, are really doing a great job. I hope they can find that sweet spot.”

Booker says he and Scott have a “real respect and affection for each other,” adding that the two have bonded over shared life experiences, their faith, the occasional fitness competition and even their shared bachelor status. Scott confirmed they’ve discussed the “challenges of dating when you’re a senator” and said that “for Washington, we have a true friendship.”

It’s also not the first time the two senators have worked together on bipartisan legislation. Booker and Scott previously teamed up on the 2018 criminal justice measure, in addition to bills on apprenticeships and sickle-cell anemia treatment.

The rocky course of policing talks since last year’s murder of George Floyd will test their connection. After Booker and Scott offered dueling police reform proposals last summer, Democrats ended up blocking Scott’s bill on the Senate floor, arguing that the GOP plan did not go far enough. Scott blamed the obstruction on Democrats for, as he put it, preferring to leverage the problem in a presidential election year rather than crafting a viable solution.

“That was incredibly disappointing and hard on the relationship, frankly," Scott said in an interview. "Because in my opinion, it was just tough. … I just had to forgive ’em and move on.”

The policing bill that Booker helped shape last year, co-authored with Bass and named after Floyd, passed the House for a second time in March but doesn’t have the 10 GOP votes needed to overcome a guaranteed filibuster in the Senate.

Despite dynamics that might seem to deter lawmakers from reaching a police reform deal this year, Booker and his fellow negotiators have some factors working in their favor. Scott views Democrats as more willing to meet him halfway now that former President Donald Trump is no longer in office and 2020 is behind them.

Booker, who stays in close touch with Harris, connects some of the recent progress to the extra time lawmakers have had to build trust among themselves as well as with outside organizations. He also sees Congress’ slow but unmistakable progress on racial inclusion as helpful in moving policing talks forward: Booker said one recent meeting of the "rainbow coalition" tackling the issue was held in the Strom Thurmond room — named for the late South Carolina Republican senator who supported segregation, a stark sign of how much the institution has changed.

The White House is trying to push the process forward. Biden challenged lawmakers to come to an agreement by last week’s one-year anniversary of Floyd’s death, an ambitious timetable given that talks are expected to go on for weeks. Senate Majority Leader Chuck Schumer said recently he would not set "any artificial deadlines."

And Booker doesn’t need any nudging to keep working. Asked whether he feels personal pressure to reach a deal, he recalled marching in the streets of Palo Alto as a 22-year-old, holding the “defiant belief that we were going to change this reality.” Booker detailed his own experiences in a 1992 op-ed in The Stanford Daily, shortly after a jury acquitted four police officers who brutally beat Black motorist Rodney King.

“Twenty-plus years later, the murder of George Floyd happens. And I had these painful conversations with my friends in their 40s and early 50s" who acknowledged that "we didn’t change this,” Booker said. “We’re now teaching young children the same lessons."

The result isn’t quite "pressure" to cut a policing deal, he added. "It’s just this sense of obligation to honor those who came before.”

Read more: politico.com

New attention on abortion pill dispensing amid challenge to Roe v. Wade

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The Supreme Court’s decision to take a Mississippi case that poses a direct challenge to Roe. v. Wade has raised the stakes for the Biden administration’s newly launched review of restrictions on abortion pills, which could dramatically expand access to the procedure.

A ruling for Mississippi, which is petitioning for the right to ban abortion after 15 weeks of pregnancy, would allow states to implement restrictions farther-reaching than any seen in decades, abortion-rights advocates say. Texas, Idaho, Oklahoma and South Carolina moved this year to ban abortions after six weeks of pregnancy, with similar limits pending in several other Republican-led states.

A new study in the Journal of the American Medical Association found that such state restrictions are helping to drive demand for abortion pills, which the Food and Drug Administration recently said can be dispensed by mail during the pandemic to protect people against the coronavirus. Earlier this month, the agency temporarily waived requirements that the pills be given to patients in person by a doctor for the duration of the pandemic and could make the policy permanent, pending an ongoing review.

The study of all 50 states found that Louisiana and Mississippi saw the most requests for abortion pills over the last two years from Aid Access, an international nonprofit that provides access to medication abortion by mail. People in states where additional abortion restrictions were imposed or where the nearest clinic is hundreds of miles away were far more likely to order the pills by mail, the study found.

“This is a window into what the world will look like if the Mississippi and Texas bans are allowed to go into effect,” said Abigail Aiken, a professor at the University of Texas at Austin and the lead author of the study. “The people who are looking for abortions will not just suddenly say: ‘Oh, I guess it’s illegal now, so I won’t get one.’ They will look for whatever options they can find, including those outside the law.”

The FDA decision to allow patients to receive the pills via telemedicine or through the mail during the pandemic has galvanized both sides of the abortion wars. Anti-abortion activists — having lost influence in Washington following the 2020 election — have intensified lobbying right-leaning state legislatures to curb, if not outlaw, access to the pills, concerned that widespread access to the drug will render other abortion restrictions obsolete.

“In our view, this is Roe 2.0 — a radical expansion of abortion,” said Kristi Hamrick, the spokesperson for Students for Life of America, which is lobbying in more than a dozen states to restrict use of the pills. “We’re talking to our friends on Capitol Hill, but it’s clear the pathway for legislation is just more sound at the state level right now.”

Lacking the votes to hold against the avalanche of legislation, abortion rights supporters are transporting their fight to the courts and to federal agencies — both suing to block state bans and petitioning federal judges and the FDA to permanently lift the restrictions on the pills.

The legal fight over the pills may ultimately return to the Supreme Court, whose conservative majority in January lifted an injunction that was preventing the FDA under former President Donald Trump from enforcing the in-person dispensing rule for the pills during the pandemic. Another factor is Chief Justice John Roberts’ opinion in the last major abortion case before the justices that courts shouldn’t concern themselves with whether a challenged abortion restriction is medically necessary. That view could undermine progressives’ argument that the pills are safe whether handed over by a doctor, picked up at a pharmacy or delivered by mail.

In a recent legal filing in a long-dormant federal lawsuit in Hawaii, the American Civil Liberties Union pointed to the FDA decision to allow telemedicine abortion during the pandemic as proof that restrictions on the pills are arbitrary, do nothing to further safety, and should be struck down.

“We’re asking the court to declare the [rules] unlawful in their entirety so that patients can access this safe and effective medication like they would any other drug,” said Julia Kaye, a staff attorney for the ACLU and the lead litigator in the case.

Shortly after, the Biden administration and the ACLU asked the court to hold off on ruling until this winter to give the FDA time to decide whether to keep the restrictions on the pills or permanently scrap them.

Career staff at the FDA’s Center for Drug Evaluation and Research are now reviewing the data regarding the drug’s safety. The agency, which is expected to announce a decision on Nov. 1, is evaluating information from the manufacturer of the pills as well as materials from the American College of Obstetricians and Gynecologists — which sued to lift restrictions on the pills — and other medical experts. It could decide to keep the restrictions in place, drop them and allow telemedicine abortions, or waive some existing rules while maintaining others — for example, allowing more kinds of medical providers to prescribe the drug but still banning mail delivery.

These legal, political and regulatory battles underway will determine whether telemedicine abortions become a way to make the procedure more affordable and accessible and get around bans in Republican-controlled states. The governors of Arizona, Arkansas, Oklahoma and Montana recently signed bans on mail delivery of abortion pills while Ohio banned all telemedicine abortions, though that law is blocked until a state judge can hear arguments on its constitutionality. Other restrictions are advancing in other red and purple states, including Indiana, Iowa, Alabama, Kentucky, Ohio, Maryland, Minnesota, Wyoming and West Virginia.

Mallory Quigley, the spokesperson for Susan B. Anthony List, said the Supreme Court’s decision to take the Mississippi case is certain to “fuel more activism” around abortion pills.

“If there’s a change in abortion jurisprudence as a result of [the case], it’s very likely that there will be an increased focus on access to chemical abortion,” she said. “The proliferation of medication abortion has been growing already but it’s been under the radar. Now that it’s been pushed more into the spotlight and the word is out, states are taking action.”

Conservative groups like SBA List, Students for Life of America and Heritage Action are funding new ad campaigns, lobbying state lawmakers and sending staff to testify before state legislatures in favor of the bans.

“We’re trying to show lawmakers that this is a very real and very imminent threat,” said Melanie Israel, a research associate at Heritage. “It’s not a hypothetical situation anymore.”

Anti-abortion groups and lawmakers argue the drug — mifepristone — is too dangerous to be sent to pregnant patients by mail or handed out in a pharmacy. They point to rare instances of harm and warn that people could, knowingly or unknowingly, take it outside of the narrow 10-week window recommended by the FDA.

But a study of the UK’s national health system’s move to allow telemedicine abortions during the pandemic found no increase in complications from pre-Covid times, when a doctor’s office visit was required. Out of nearly 30,000 at-home abortions between January and June of 2020, seven people had a major complication and needed to be hospitalized, compared to eight people in the comparison group that got the pills from a doctor.

Medical groups and experts urging the FDA to permanently lift the restrictions say the government allows much riskier drugs to be dispensed by mail and over the counter — including anti-inflammatory drugs and antibiotics. Still, as with all medication, complications occur and can be serious. The FDA found that out of more than 3.7 million people who took mifepristone over an 18-year time span, a little over 1,000 were hospitalized and 24 died, though nearly half of those deaths were attributed to homicide, suicide, drug overdose or emphysema. More frequently, though still quite rarely, the pills simply don’t work and patients require a follow-up surgical procedure to complete the abortion.

Yet Susan Wood, the former FDA assistant commissioner for Women’s Health and a professor of health policy at George Washington University, says that mifepristone has long been singled out, despite the evidence of its safety, for political and ideological reasons.

“We don’t want these put under arbitrary restrictions, and right now the restrictions are arbitrary — they’re not based on real concern over safety,” said Wood. “Unfortunately, whenever we talk about women’s reproductive health, we see the controversy move to the forefront and science gets pushed to the side.”

Read more: politico.com

DeSantis signs controversial bill banning transgender women and girls from sports

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TALLAHASSEE — Florida Gov. Ron DeSantis signed into law Tuesday a policy banning transgender athletes from playing girls and women’s sports that opponents have condemned as deeply discriminatory against transgender athletes and students.

Dubbed the "Fairness in Women’s Sports Act,” Florida’s new law establishes that women’s sports from middle school through college, including intramurals and club teams, are closed to males based on the biological sex listed on a student’s birth certificate. The measure has been widely celebrated by Republicans for “protecting the integrity” of girls athletics. Florida joined more than 20 other GOP-leaning states pushing similar ideas.

Democrats by and large disavow the policy, claiming it’s unwarranted in the state, fuels transphobia and discriminates against transgender students. At least one group is pledging to sue Florida over the legislation.

“In Florida, girls are going to play girls sports and boys are going to play boys sports,” DeSantis said, speaking at a private school in Jacksonville.

The Republican governor made a show of signing the bill on Tuesday by highlighting a well-known example of transgender high school sprinters from Connecticut besting their competition on the track.

DeSantis, flanked by student athletes from the Jacksonville-based Trinity Christian Academy on stage, streamed a video of transgender athlete Terry Miller winning a race in 2019, then introduced one of her competitors, Selina Soule, to address the audience. Soule, a Connecticut high school track athlete who has been outspoken against allowing transgender athletes to compete, told the crowd her experience losing to transgender girls was “frustrating” and “demoralizing.”

DeSantis has signed into a law a slate of conservative-leaning bills from the GOP-led Legislature, including measures cracking down on Big Tech, loosening Covid restrictions and tightening voting rules, ahead of his reelection and possible bid for the White House in 2024.

Some 11 transgender athletes have applied since 2013-14 under the Florida High School Athletic Association’s participation policy, which allows students to petition to play sports regardless of the gender listed on their birth certificate. Democrats attempted to use this rule as an example that the law was unnecessary in Florida. The only in-state instance of transgender athletes that lawmakers could reference during session involved bowling.

Democrats on Tuesday were quick to note how DeSantis signed the legislation on the first day of LGBTQ Pride Month, a move Democratic Agriculture commissioner and likely 2022 gubernatorial candidate Nikki Fried said was “especially cruel.”

“By signing a heartless ban on transgender kids in sports, Governor DeSantis is marginalizing an entire community,” Fried said in a statement. “Florida should stand for inclusivity, equality, and liberty — not peddling hate for political points.”

When asked, DeSantis said the timing behind the bill signing had nothing to do with Pride Month.

“It’s not a message to anything other than saying we’re going to protect fairness in women’s sports,” DeSantis said.

Shortly after DeSantis signed the measure, the Human Rights Campaign pledged to challenge the legislation in court, claiming it is “fueled by discriminatory intent and not supported by fact.” The American Civil Liberties Union is challenging a similar law that lawmakers recently passed in West Virginia.

Read more: politico.com

Netanyahu’s opponents hashing out deal as deadline looms

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JERUSALEM — A constellation of Israeli political parties seeking to unseat longtime Prime Minister Benjamin Netanyahu convened Monday to hash out power-sharing agreements two days before a deadline.

Opposition Leader Yair Lapid said at a meeting of his Yesh Atid party that “a great many obstacles” stood before a prospective government. But he said the various members of the anti-Netanyahu coalition are trying “to see if we can find in the coming days wise compromises for the sake of the big aim.”

Lapid was tasked by the country’s figurehead president with forming a government earlier this month after Netanyahu failed to do so in the aftermath of the March 23 elections, the fourth in two years.

On Sunday, Naftali Bennett, head of the small, hard-line nationalist Yamina party, said he would work with Lapid to form a broad unity government and “save the country from a tailspin and return Israel to its course.” Lapid has already secured the support of two smaller liberal parties and a secular ultranationalist faction.

Bennett and Lapid have until Wednesday to hammer out a deal in which the pair split the premiership — with Bennett serving the first two years and Lapid the following two.

No political party has ever won an outright majority in Israel’s 120-seat parliament, the Knesset, forcing smaller factions to band together to form a coalition with more than 61 seats.

If Lapid and his allies — which range from hard-line nationalists to liberal Zionists and a small Islamist party — can overcome their differences and seal a deal, it would spell the end of Netanyahu’s rule, for the time being.

Netanyahu is Israel’s longest-serving prime minister, having held office since 2009, as well as a brief stint in the late 1990s. Despite his Likud party being the largest faction in the Knesset, he has become a divisive figure. Israel has held four parliamentary elections in the past two years, all seen as a referendum on his fitness to rule.

The long-serving prime minister has held onto power despite being indicted on charges of fraud, breach of trust and accepting bribes in 2019. Netanyahu has denied any wrongdoing and has refused to step down from office while on trial.

After Bennett announced his intention to join forces with Lapid, Netanyahu lashed out in a nationally televised speech, saying that such a government “is a danger to the security of Israel, and is also a danger to the future of the state.”

Lapid responded to Netanyahu’s remarks on Monday, saying they were “reckless and dangerous, that of a man who has lost the brakes.”

“If you want to know why we’re determined to [bring] a change of government in Israel, go listen to that speech by Netanyahu,” Lapid said, referring to Netanyahu’s claim that a government without him would be “dangerous” and growing calls to violence by some against the prime minister’s political opponents and others.

Lapid pointed to the security details assigned to the prime minister’s political rivals, reporters and state prosecutors in Netanyahu’s corruption trial.

On Sunday, the Knesset Guard approved assigning a personal bodyguard to senior Yamina party politician Ayelet Shaked amid increasing threats of physical violence. Protesters outside Shaked’s home held signs that read “Leftist traitors.” Bennett received a personal security detachment earlier this month.

Gideon Saar, a former member of Netanyahu’s Likud party who split away ahead of the March elections, said his New Hope was “doing everything in our power” to reach a compromise and form a government, but that such an outcome remained uncertain.

Saar railed against the “incitement” against politicians seeking to assemble a coalition without Netanyahu, saying the prime minister “and his people are engaging in wild de-legitimization of a government that has yet to arise.”

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Nation’s first school mandate on AAPI history heads to Illinois governor

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SPRINGFIELD, Ill. — Illinois is poised to become the first state to require Asian American history be taught in public schools after a bill cleared its last legislative hurdle Monday amid growing national concerns about anti-Asian hate and discrimination.

The final version of the measure cleared the state House, 108-10, after it passed the Senate unanimously last week. Democratic Gov. J.B. Pritzker is expected to sign the bill, which would mandate a unit about the Asian American experience in Illinois and the Midwest starting in the 2022-23 school year.

“It’s been incredibly gratifying to see support from the Asian American community and from the non-Asian community,” said Illinois state Rep. Jennifer Gong-Gershowitz, who co-sponsored the Teaching Equitable Asian American Community History Act — TEAACH.

She and state Sen. Ram Villivalam, a fellow Democrat, first proposed the bill in 2020, only to see it sidelined when the pandemic scrambled the legislative session — and everything else. Villivalam, who echoed many supporters of the measure, said the legislation was personal to him.

“I was an Asian kid in a mostly Caucasian class. I was an Asian American youth in a mostly African American class. At times it was a struggle to figure out who I was,” he said in an interview. “When you have a curriculum and that familiarity, it reduces assumptions and discrimination.”

As the public health crisis unfolded, so did a rash of bigoted attacks against Asian communities that galvanized legislators, actors and activists alike. And the two Illinois lawmakers resurrected their bill.

“Asian Americans are experiencing a lot of pain right now with the shameful rise in anti-Asian hate,” Gong-Gershowitz said in an interview. “And this is a way to do something positive about it.”

The vote in Illinois comes on the heels of President Joe Biden signing a new anti-Asian hate crimes law that makes it easier to report attacks online and in multiple languages, and authorized a new position in the Justice Department. Illinois is also weighing separate legislation to require schools to diversify history lessons in the state just as many Republican-controlled states are doing the opposite. But as Illinois, which has an Asian population of about 6 percent, is slated to establish an education precedent nationally, at least 10 other states and several school districts are also weighing similar moves.

“Illinois is pace-setting, but it’s a national movement,” said Stewart Kwoh, who develops school curricula as co-director of the Asian American Education Project with his wife, Pat. “Because of violence against Asians and the George Floyd murder, there’s a big push around the country for ethnic studies. States are at different stages of passing something.”

California, Colorado, Connecticut, New York, Virginia, Maryland, and Washington, D.C., have all recently weighed some form of ethnic studies, Kwoh said. And groups in Georgia, New Jersey and Washington state are also exploring it.

Gong-Gershowitz said the spotlight quickly turned to Illinois.

“I’m getting calls from all over the country — people who have read about TEAACH and how they can pass this bill in their state,” she said.

Illinois succeeded, in part, because it kept the legislation narrow. Other states, including California, have spent years trying to pass ethnic studies bills that would require teaching history with a larger lens on communities of color in the U.S. A measure did pass both houses of the California legislature last year. But it was vetoed by Democratic Gov. Gavin Newsom after Jewish groups raised concerns that antisemitism was minimized and that the draft curriculum aligned too closely with Palestinians.

Sen. Tammy Duckworth (D-Ill.) praised the Illinois bill but remains concerned about the turmoil around similar pieces of legislation elsewhere.

“We’ve got to stop fighting over the one slice of pie that is labeled the diversity slice. There’s enough pie for everyone," she said in an interview. "When we are divided and not able to be each others’ allies, it’s really hard to move forward any kind of reform for injustices that are based on race.”

Minnesota state Rep. Fue Lee, a Democrat, has been working on an ethnic studies education bill, too. Lee’s ethnic studies course wouldn’t be needed for high school students to graduate but one that could meet a social studies requirement. He said Republicans in his state are averse to “a mandate,” forcing him to rework the measure. While the bill has backing in the Democratic-controlled House, he said in an interview, “we’re not getting support in the Senate,” where Republicans rule.

In Illinois, which was one of the first states in the country to mandate instruction about the Holocaust, the legislation eased through the General Assembly and has had broad community support.

“We know through Holocaust education that students who are educated and understand histories of others are more empathetic, are more inclusive, and ultimately more sympathetic and willing to engage with people who are different than them,” said David Goldenberg, the regional director of the Midwest Anti-defamation League, which reports increasing numbers of Asian Americans becoming victims of online harassment because of their race or ethnicity.

Illinois state Rep. Theresa Mah also credits the passage of the TEAACH Act with there being five Asian Americans in the General Assembly.

“We’ve reached a critical mass. We’re visible. We have a presence and we’re recognized by the speaker so colleagues have heard us,” said Mah, a Democrat who represents Chicago’s Chinatown neighborhood and also serves as the House Asian American caucus whip.

Course materials developed by the Kwohs, who document the Asian American experience, are already being considered for use in some school districts around the country. Within a week of announcing a course on how to teach the curriculum, he saw 500 educators sign up, including from Illinois.

So far, the Kwohs’ offer teachers 51 lesson plans focused on racism, civil rights, identity, citizenship and immigration. The California activist came to be an expert on offering Asian American history classes after researching the lynchings of Asian Americans in the late 1800s and early 1900s. He went on to write a book about AAPI civil right issues and worked with producers of the “Asian Americans” PBS documentary that aired last year.

Read more: politico.com

Israel, Egypt talk truce with Hamas, rebuilding Gaza Strip

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CAIRO — Egypt and Israel are holding high-level talks in both countries Sunday to shore up a fragile truce between Israel and the Hamas militant group, and rebuild the Gaza Strip after a punishing 11-day war that left much of the seaside enclave in ruins.

Egyptian Foreign Minister Sameh Shukry was meeting with his Israeli counterpart, Gabi Ashkenazi, who landed in Cairo on Sunday, according to the Egyptian Foreign Ministry.

It was the first public visit by an Israeli foreign minister to Egypt since 2008, the Israeli Embassy in Cairo said on Twitter. It wrote that the two ministers would discuss topics including the cease-fire and the release of Israeli soldiers and citizens being held by Hamas.

“We will discuss establishing a permanent ceasefire with #Hamas, a mechanism for providing humanitarian aid & the reconstruction of #Gaza with a pivotal role played by the intl. community,” Ashkenazi tweeted upon arrival in Cairo.

Meanwhile, Egypt’s President Abdel Fattah el-Sissi sent the country’s intelligence chief to Tel Aviv for talks with Prime Minister Benjamin Netanyahu and other Israeli officials. They will discuss consolidating the Gaza cease-fire and the latest developments in the Palestinian territories, the state-run MENA news agency reported.

An Egyptian official said Abbas Kamel, head of the General Intelligence Directorate, would also meet with Palestinian officials in Ramallah before heading to Gaza for talks with Hamas leaders. The agency, which is Egypt’s equivalent of the CIA, usually handles Egypt’s ties with Hamas and other Palestinian militant groups in Gaza.

The discussions with Israeli officials also are expected to touch on a set of measures that would allow materials, electricity and fuel into the territory, as well as the possible expansion of maritime space allowed for Gaza fishermen, the official said.

“The role of the Palestinian Authority is central in the talks,” he said. “Egypt is seeking to have it deeply involved in the reconstruction process.”

The Egyptian official, who had close knowledge of the proceedings that led to the cease-fire, spoke on condition of anonymity because he wasn’t allowed to brief reporters.

The 11-day war killed more than 250 people, mostly Palestinians, and caused heavy destruction in the impoverished coastal territory. Preliminary estimates have put the damage in the hundreds of millions of dollars. Egypt was key in mediating a deal between the two sides.

The official said Egypt would offer guarantees that rebuilding funds will not find its way to Hamas, possibly going through an international committee led by Egypt or the United Nations that would oversee the spending.

Kamel will also discuss the situation in Jerusalem and ways to ease tensions in the holy city, including a loosening of Israeli restrictions at the Al-Aqsa Mosque and how to prevent the planned eviction of Palestinian families from the Sheikh Jarrah neighborhood in east Jerusalem, the official said.

The talks in Gaza and Tel Aviv would also look into the possibility of a release of Palestinian prisoners in Israel in return for Israelis held by Hamas, he said.

Egypt last week invited Israel, Hamas and the Palestinian Authority for separate talks in Cairo to consolidate the Cairo-mediated cease-fire and accelerate the reconstruction process in Gaza.

Hamas leader Ismail Haniyeh is expected to visit Cairo this week, according to the group’s spokesman Abdelatif al-Qanou, who also said Hamas is open to discussing a prisoner swap with Israel.

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The Surprising Honolulu Origins of the National Fight Over Same-Sex Marriage

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On the morning of December 17, 1990, according to the press release he sent beforehand to local media, Bill Woods had plans to make news, not history.

He would bring three same-sex couples, two female and one male, to the main office of the Hawaii Department of Public Health in downtown Honolulu, where they would complete applications for marriage licenses. Woods was not a lawyer, but had studied the family-law code, which included in its marriage regulations a reference to “the husband” and “the wife” without any specific indication that there had to be only one of each or requirement that together they be capable of reproduction. Woods had envisioned two possible scenarios. In one, the three couples walk out of the office as the first same-sex couples on earth legally authorized to marry. In the other, Woods would tell the assembled media to follow him and the couples as they walked to the local headquarters of the American Civil Liberties Union. The ACLU lawyers had ignored and humiliated Woods all year in his efforts to conduct a mass wedding ceremony alongside Honolulu’s pride parade, but now would be pressured by the media coverage into taking his project seriously.

That morning, Woods told the three couples he had recruited to meet outside the old Blaisdell Hotel, whose office floors were home to both the ACLU and the Gay Community Center that Woods had launched and almost singlehandedly ran. Gathered around a park bench, Woods made introductions. Joe Melillo and Pat Lagon were longtime friends of Woods’. Antoinette Pregil and Tammy Rodrigues had contacted him after reading in a local newspaper clip that he wanted to help same-sex couples marry; they thought it would likely solve the legal problems they faced as lesbian parents to foster children. Ninia Baehr and Genora Dancel had been the last to enter Woods’ orbit, when just the week prior Baehr had called the community center after enduring an earache to inquire if there was any way she could be covered under her girlfriend’s health-insurance plan. There was not, Woods explained to each of them separately, unless they wanted to join him in testing whether the state was ready to let them marry. “He didn’t ask, ‘Are you an axe murderer?’” Baehr later recalled. “He didn’t do anything to see, Are you the Rosa Parks we need?”

After explaining his plan, Woods led his six charges down Beretania Street to the health department. There were registered license agents scattered across Hawaii, including government officials and even employees of large resort hotels that catered to wedding parties, but Woods, with an eye towards dramatic confrontation, selected the most highly trafficked of the available locations.

A cluster of journalists awaited them beneath an oleander canopy that shaded the entryway. With Woods looking on, each of the three couples took an application and completed it. Two by two, they entered through a door marked MARRIAGE LICENSE, and were greeted by a woman at a desk to whom they presented their completed forms and $25 fee. The clerk calmly said that given the unprecedented nature of their request she could not summarily approve the applications the way she would if heterosexual couples had submitted them. She directed the six applicants and their chaperone towards the back of the office, to speak with her boss.

The seven visitors crowded into the small office belonging to Robert Worth, the state’s acting chief health status monitor, who despite his sympathy for the couples’ ambitions said he couldn’t act on them without further legal guidance. “We will hold your applications until such time as the attorney general gives us a ruling about these specific applications,” Worth said. Woods led everyone back to the Blaisdell Hotel to the ACLU’s office to complete the organization’s two-page “Application for Legal Assistance.”

No one knew what would happen next, and the group disbanded, unsure they would ever have reason to see each other again. Baehr and Dancel retreated to a TGI Friday’s where they had gone on their first date just six months before. The two ordered cheeseburgers and reflected on the dizzying sequence of events. “What was that?” Genora asked Ninia. “What did we just do?

What they had done was set in motion a chain of events that would send a novel legal question from the outskirts of the American imagination to the floor of Congress and the Oval Office in a little more than five years. Within a quarter-century, the U.S. Supreme Court would end the debate for good. Over many of the years in between, whether gays and lesbians should be permitted to marry was the most divisive social question in the country.

But in December 1990, same-sex marriage was in no meaningful way a political or legal issue. There was hardly a public figure in the country who had been forced to articulate an argument either for or against it. (To the extent that there were active disagreements about the topic, they were aired within gay and lesbian legal circles, where differences persisted on both the principle and strategy of pursuing marriage rights.) Not a single major gay-rights group formally embraced marriage rights for its core constituency until the Hawaii Supreme Court in May 1993 gave unexpected blessing to the cause, the unexpected outcome of the legal process that Bill Woods began that morning in Honolulu.

Since the Supreme Court’s landmark decision in Obergefell v. Hodges, which in 2015 made same-sex marriage the law of the land, there’s been a default impulse to assume that this breakthrough was the result of a deliberately plotted national strategy to deliver on a long-defined civil-rights objective. But the truth is messier. The defining social movement of the 21st century began as a public-relations stunt, hatched by a relentless and entrepreneurial local activist competing with rivals for control of a single event-planning committee.

***

The history of gay activism in Oahu, Hawaii’s most populous island, was largely the story of Bill Woods’ coming-out. He first saw Hawaii while accompanying a friend and her husband on vacation, and the next year transferred from his small Illinois Presbyterian college to the University of Hawaii, studying psychology as an undergraduate before seeking a master’s in public health. Island life offered a new start, and from the moment Woods touched down he decided, for the first time in his life, to be open about his sexuality.

Soon Woods’ public profile was inextricably linked with his status as a gay man. In 1972, he founded a gay social-service organization he called the Sexual Identity Center because he didn’t think the prominent, largely straight psychologists and lawyers whose involvement he sought would flock to serve on a board whose name bore an explicit reference to homosexuality. Woods used the position to place himself at the forefront of everything within Hawaii’s emergent gay community. In 1974, when Oahu held its first gay-pride parade, a curiosity to onlookers along a Waikiki sidewalk, Woods was there. Years later, he became the first openly gay person to testify before the Hawaii legislature, then the first to address a state Democratic party convention.

Woods joyfully took up arms in the culture wars. When conservative televangelist Jerry Falwell traveled to Hawaii in May 1981 to “save the 50th state” by opening a chapter of his Moral Majority, Inc.—anyone who stood in his way must be “a Nazi, a communist, or a homosexual,” he warned—Woods led a group that beat him to register the name with state authorities. Their “Moral Majority of Hawaii,” as newspaper ads announced, would defend “family planning, civil rights for all people, pro-choice in abortion, child care programs, freedom of speech and religion, and the separation of church and state.” When he held a rally outside the state capitol in Honolulu, Falwell was confronted by a sheriff presenting him with a summons: the Moral Majority of Hawaii was suing his Moral Majority, Inc. for using its name. Concerned they could get ensnared in the litigation, other venues which had agreed to host stops on Falwell’s Hawaii tour cancelled. Before retreating back to Virginia, a disconsolate Falwell gave a farewell speech that mentioned only two names: Jesus Christ and Bill Woods.

Woods’ marriage-license stunt grew out of a similar feud. In 1989, he began attending meetings of the Official Gay & Lesbian Pride Week Association of Oahu, to argue the festivities being planned for June 1990 should include a parade. The association’s co-treasurer, Cheryl Embry, was a familiar antagonist to Woods—her Island Lifestyle Magazine had begun publishing to compete with his more established Gay Community News—and she led her fellow board members in dismissing the proposed parade. Woods promptly formed his own non-profit corporation, the Pride Parade and Rally Council, and set to work staging a rival event. Woods requested an event permit for the day before the pride-week association’s scheduled rally, and schemed to design an event that would upstage it. Woods asked the governor to be his grand marshal, the Royal Hawaiian Band to perform and a caterer to design an International Cuisine Festival.

He also plotted a wedding ceremony for as many as two dozen same-sex couples. Woods wasn’t interested in getting married himself—“Bill wasn’t a great romantic,” says his friend Terry Gregson, “and not a big believer in monogamous relationships”—yet understood the iconic power of such a spectacle. He sought legal guidance from the ACLU, but its leadership in Hawaii was wary of being pulled into one of Woods’ schemes. Throughout the summer and fall of 1990, ACLU officials kept deflecting his request for help, apparently hoping that Woods would lose interest and move on to another project. When Woods did run out of patience, he decided to head to the health department with the first couples he could find—hoping that media coverage would force the ACLU into action.

***

Twelve days after the three couples applied for marriage licenses, Hawaii attorney general Warren Price advised the health department that it was right not to have issued them. Both he and health director John Lewin said that even as there was no room for the state to recognize same-sex marriages, they would work with legislators to provide other support to gays and lesbians. For Lewin, the issue prompted “a lot of soul searching,” as he put it, since “the trend among homosexuals is to form long-lasting relationships, which is better for themselves and society.” Nonetheless he appeared happy to have the matter removed from his domain. “It’s a legal issue, not a health issue,” Lewin told the media upon receiving Price’s opinion. “It’s out of the department’s hands and into the legislature.”

The couples, however, were intent on heading first to the courts. Without any immediate offers of help from the ACLU, Woods led the couples to seek out a lawyer of their own.

When Bill Woods arrived in Partington & Foley’s 24th-floor law suite looking for an ally ready to challenge Hawaii’s conception of marriage, he wasn’t so much delivering Dan Foley a case as much as six plaintiffs in search of one. At first glance, Foley’s office—its walls covered with pictures of his wife and two young children—may as well have been a shrine to the traditional nuclear family. “I had never thought of marriage as anything other than a man and a woman, just like everybody else,” he later said. “But I felt, well, being married, having children, having the rights and benefits of marriage, who am I to say no to them?”

Foley was already becoming known around Honolulu as a lawyer drawn to unpopular, even unimaginable, causes. His path to the law was itself untraditional. As a young University of San Francisco graduate with experience in anti-war activism and an interest in cultural anthropology, he had joined the Peace Corps and was assigned to serve as an agricultural-extension officer in Lesotho. Observing firsthand how a weak constitution hobbled the young country, Foley gained a new appreciation for the rule of law. He returned to the Bay Area for law school and, revering the Warren Court and its success using the constitution as a driver of social change, joined a Marin County firm that specialized in civil-rights work.

His sympathies often turned specifically west across the Pacific. He had first visited Hawaii as a teenager, when he came to visit an aunt who had moved to the islands after marrying a Hawaiian man. Foley was struck by how the indigenous population had found itself disempowered upon statehood, their language and culture relegated by an ascendant political class of relocated outsiders. When he learned of an opportunity to head to Micronesia just as the series of islands was securing their sovereignty from the United States, Foley quit his firm—“to help them avoid the Hawaiians’ fate,” as he later put it.

By the time Bill Woods walked into his office, Foley had moved into private practice, where the two men had found themselves allied on cases of interest to the islands’ gay community. In the most prominent, Foley successfully defended the Miss Gay Molokai Pageant after a local official, under pressure from religious conservatives, refused to grant a permit to the hula carnival and cited the potential spread of HIV to justify it.

Even as he made his living as a litigator, Foley maintained the affect of the cultural anthropologist. He wore a neatly cropped salt-and-pepper beard and round, thin-frame tortoise-shell glasses, and a high forehead that exposed thick lines when he concentrated. Like many Hawaii lawyers, he usually wore a suit and tie only when he had to appear in court; on days spent in his office, Foley was as likely to be found in an aloha shirt untucked over jeans. Yet for Foley, modesty and humility weren’t merely aesthetic preferences. Raised Catholic and educated by Jesuits, he converted to Buddhism upon marriage to a Japanese-Chinese-Hawaiian woman and he saw diversity as central to the island temperament. “There’s no dominant group, religion, race or culture,” Foley said of Hawaii. “It breeds tolerance. On the mainland, it’s clear who’s in control.”

Now it was Hawaii’s marriage code that presented Foley his most immediate obstacle. On April 12, 1991, each of the three couples received a formal notice that the health department would not recognize same-sex unions. The letter from state registrar Alvin T. Onaka cited chapter 572 of Hawaii Revised Statutes, the same part of the code whose ambiguity about questions of gender emboldened Woods in the first place. “Even if we did issue a marriage license to you, it would not be a valid marriage under Hawaiian law,” Onaka wrote them all in identical letters. The couples visited Foley and committed themselves to a long fight. “We’re not happy with the way the state is interpreting the law,” Joe Melillo said. “We want to do it legally—the right way.”

The social taboos that persisted around gay couples resembled the ones that had long justified anti-miscegenation laws, and those who had considered strategies to legalize same-sex marriages often found themselves drawn to the example of Loving v. Virginia. The unanimous U.S. Supreme Court decision in 1967 overturned state laws forbidding interracial marriages, on the grounds that such bans served no function other than racial discrimination. “Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival,” Chief Justice Earl Warren wrote in his opinion. “Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.”

Foley may have come of age revering Warren’s progressive jurisprudence, but he no longer counted the Supreme Court as a welcoming venue for civil-rights litigation. Indeed, after a decade’s worth of appointments by Republican presidents, the federal bench bore a newly conservative finish, and had proven itself particularly hostile to sexual minorities. Just five years earlier, in 1986, the Supreme Court upheld state laws criminalizing sodomy.

Just five years later, Foley reasoned, gay marriage would be an automatic loser if the matter found its way into federal courts. Instead, he schemed to develop a case that would rely solely on interpretation of state law. In that regard, Foley understood what a useful ally Hawaii’s constitution would prove to be: the state is one of only five in the country that explicitly defines a right to privacy. Looking to the language that the Warren Court used in its decisions on contraception and abortion rights, Hawaii’s 1978 Constitutional Convention pledged in its first article that “the right of the people to privacy is recognized and shall not be infringed without the showing of a compelling state interest.”

When Foley listed the six plaintiffs on the lawsuit he filed on the morning of May 1, he was pleased to see the alphabet placed Ninia Baehr’s name first. All the information he had about his clients’ backgrounds had come from small talk at their first meeting. But Foley knew instantly he wanted Baehr — an experienced activist who, unlike the others, was comfortable with both public speaking and fundraising—to be the face associated with a case that would become known as Baehr v. Lewin.

Foley’s five-page lawsuit demanded injunctive and declaratory relief so that his plaintiffs would receive the marriage licenses they had been denied. A state court could compel the health department to adjust its policy, Foley argued, on the basis that both the equal-protection and privacy guarantees in Hawaii’s constitution applied to the right of all couples to marry on equal terms.

In November 1991, Judge Robert Klein rejected Foley’s claim, justifying the existing opposite-sex marriage stature as “clearly a rational, legislative effort to advance the general welfare of the community.” Klein methodically itemized reasons that gays did not meet the qualifications for as a class worthy of constitutional equal protection: they were not a politically powerless minority, Hawaii’s “history of tolerance for all people and their cultures” ensured they were not victims of systematic discrimination, and their sexuality was not an “immutable characteristic,” like race or gender. “Citizens cannot expect government’s policies to support their lifestyle or personal choices,” Klein wrote.

Foley had one month to prepare his appeal, and he knew he was embarking on a case whose ramifications could be felt far beyond the islands. “Should we prevail on these issues before our State Supreme Court, there is no question our victory would be nationally recognized,” Foley wrote in a memo to Woods. “Needless to say, our case is more than a gay rights case. It is a human rights case.

***

On October 13, 1992, Dan Foley awoke at 4 a.m., and began the morning with a Buddhist chanting ritual. Afterwards Foley put on a white shirt, dark blue pinstriped suit and a burgundy Christian Dior tie. Around 5:30, after resetting the alarm for his wife, Foley left the house, carrying the suit jacket and a briefcase, and traversed the dark, quiet Pali Highway towards downtown.

When he had first marked the date for oral argument in his calendar, Foley had been anticipating an appearance before a very different Supreme Court of Hawaii. A freakish series of actuarial events that summer—mandatory retirements, promotions, a death and a recusal—had turned over a majority of the five seats, some more than once. Now only two normal sitting members remained, with a combined three years of high-court experience between them, and Foley decided to aim his argument at the justice he knew best. He had faced off with Steven Levinson years before in a trial over a controversial zoning issue at Sandy Beach, with Levinson representing the developer and Foley the aggrieved residents. When Foley’s co-counsel tweaked the opposing attorney with an abrasive style, Foley pulled Levinson aside and said, reassuringly, “Don’t talk to him, talk to me.”

Now they would meet again in another courtroom, as two bearded 46-year-old children of the 1960s, both proud card-carrying members of the ACLU. (Levinson discreetly kept his membership active even while on the bench, in violation of ethics guidelines.) When, in September, Foley began scribbling notes for an opening statement on a yellow legal pad, he had Levinson in mind as his audience. He knew that if he was unable to persuade Levinson, he would be unlikely to win over any other justice. If he could get Levinson, then it would become the justice’s job to bring over two of his colleagues to form a majority.

In a dark, empty 24th-floor office, Foley read the opening argument aloud, timing himself. After completing it twice, in each instance under 20 minutes, Foley sorted his papers in a stack, scooped up his prayer beads, and turned his chair so that it was facing a back wall in the direction of his Kailua home. He began another Buddhist chant, and for an hour and a half thought only of the opening argument, focusing his will on the goal of carrying himself well and communicating clearly to the justices. At 8:15 am, he opened the door and found his office had begun to rattle with life. Foley gathered his officemates and set off on the four-block walk to Aliiolani Hale, the 19th-century building that is home to the highest rungs of the Hawaiian judiciary.

A little before 8:45, Foley arrived at the courthouse’s wooden front door and climbed two sets of steps to the floor belonging to the supreme court. On his way inside, Foley navigated a cluster of media massed in the hallway outside the chambers, larger than any he had seen before. He assumed one of two seats at a table to the right of the podium facing the chief justice and set down the three briefs that had been filed in the case, his handwritten oral argument and a yellow legal pad to take notes. On the opposite table were two assistant attorneys-general, Judy So and Sonia Faust, familiar foils to Foley in other suits against the state.

As the appellant, it was Foley’s responsibility to go first. His first words at the podium were scripted to reorient the case to what Foley considered its natural scale. “This is not just a case about whether or not homosexual couples should be allowed to marry,” he began. “This is a case about homosexuals, and their rights to privacy, equal protection and due process under the Hawaii Constitution.” Foley told the justices they would not once hear him invoke rights guaranteed by the United States Constitution. “Appellants concede that in a federal court of law,” he went on, “they could not prevail.”

The implication was clear. This was a civil-rights case whose consequences for an aggrieved minority group went well beyond the clause in the Hawaii statute that identified the qualifications for marriage. Foley’s acknowledgment of weakness before federal courts was in fact its own solicitude to the vanities of the five men before him. No appeal of theirs could take Baehr v. Lewin into federal courts, and no judge would have to worry about the eventual indignity of seeing the Supreme Court reject his reasoning. Any three men on the bench were on the precipice of making law, of expanding rights for Hawaiians that could not be easily taken away. Foley was inviting his contemporaries on the bench to do something bold.

Foley had placed his handwritten script on the podium, but he had read through it aloud enough times that he was capable of delivering nearly all of it from memory. When justice Walter M. Heen assumed the role of Foley’s antagonist, challenging the lawyer about whether the lower court’s decision had truly encroached on any fundamental liberty—“the right to practice any sexual orientation”—Levinson politely interrupted and guided the conversation elsewhere. As Foley had hoped, Levinson seemed to be on his side, quietly ushering the lawyer onto a desired path with limited interference or delay. With Levinson’s help, Foley steered his answers to cover most of the points he had drafted for his statement. When he finally found a lull in the questioning, Foley stopped and asked to reserve the rest of his time for rebuttal, turning back towards his seat as Faust rose from hers and approached the podium.

She was barely a minute into her oral argument when the justice sitting to her far left spoke for the first time that day. “Put it another way,” James S. Burns said to her. “They want you not to discriminate against them.”

“Our position is that we are not discriminating against them,” she responded.

“Okay,” Burns followed up. “A male and a female walk in and they’re not married and they want a license; you give it to them. A male and a male walk in and want a license; you won’t give it to them. You are discriminating against them.”

“Our position,” said Faust, “is that that is permissible discrimination.”

Foley felt his skin shiver and harden as he experienced what Hawaiians refer to as a chickenskin moment. Foley had always assumed that the appeal would likely be decided on procedural grounds, without the Supreme Court ever having to contend with the question of whether gays and lesbians were being denied a fundamental right. But to Foley’s surprise Burns seemed to have accepted that constitutional premise right away, and forcefully so. “This was the first time since I filed the complaint,” the lawyer reflected later, “that I felt that my clients would be able to prevail on the merits.”

They did. Six months later, in May 1993, the Hawaii Supreme Court ruled for the plaintiffs, the first time that any court on earth had acknowledged that a fundamental right to marriage could extend to gay couples.

Levinson’s majority opinion relied on the reasoning Burns had made so accessible to even a lay listener, that the pivotal issue was discrimination on the basis of sex, rather than sexual orientation.

Although the Hawaii Supreme Court had ruled for the plaintiffs, it wasn’t the end of the process. The supreme court sent the matter back to a lower court, where Hawaii authorities would have to prove a “compelling state interest” behind the denial of marriage licenses to gays and lesbians. The burden had suddenly shifted: the state would have to come up with a reason why same-sex marriage shouldn’t exist.

It took a little time for those outside Hawaii to fully appreciate the momentousness of what had happened there. The Church of Jesus Christ of Latter-day Saints was the first major mainland institution to respond, and soon leaders and activists from other religious denominations followed.

Their warnings that the future of the American family in the United States lay in the hands of a single Hawaii trial-court judge eventually found an audience in Congress, where legislators set to work on a bill designed to ensure the 49 other states and the federal government could disregard same-sex marriages celebrated there.

On September 9, 1996, the trial in Baehr v. Miike—as it was renamed upon the appointment of a new state health director—began in Honolulu

That same day, the Senate passed the Defense of Marriage Act, which was about to put the issue on a president’s desk for the first time. The bill defined marriage under federal law as only between a man and a woman, ensuring that whatever happened in Hawaii’s courts would not force any other state’s government to recognize gay and lesbian couples married in Hawaii. The law would stand until 2013, when a challenge to its constitutionality put the matter of same-sex marriage before the U.S. Supreme Court.

From THE ENGAGEMENT: America’s Quarter-Century Struggle Over Same-Sex Marriage by Sasha Issenberg, to be published by Pantheon Books on June 1, 2021. Copyright © 2021 by Sasha Issenberg.

Read more: politico.com

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