Major #Prop8 development: CA Supremes to hear standing issue

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*more as we get it

*From AFER:

Breaking: California Supreme Court Accepts Certified Question

For Immediate Release

February 16, 2011

Statement by the American Foundation for Equal Rights on California Supreme Court Response to Ninth Circuit

Los Angeles, CA – American Foundation for Equal Rights Board President Chad Griffin issued the following statement after the California Supreme Court’s response to the question from the U.S. Court of Appeals for the Ninth Circuit in the Perry v. Schwarzenegger case:

“More than six months ago, the federal district court declared unequivocally that Prop. 8 is unconstitutional and that it causes grave harm to gay and lesbian couples and their families each day that it is in effect. We look forward to assisting the California Supreme Court reach an answer to the question before them so that the 9th Circuit Court of Appeals can affirm the district court’s ruling and end the state-sanctioned discrimination of Prop. 8.

“The American Foundation for Equal Rights is committed to achieving the freedom to marry for all Americans. We look forward to taking this case to the U.S. Supreme Court, which 14 times before has declared that marriage is a fundamental right for every American.”

About the American Foundation for Equal Rights

The American Foundation for Equal Rights is the sole sponsor of the Perry case. After bringing together Theodore B. Olson and David Boies to lead its legal team, AFER successfully advanced the Perry case through federal district court and is now leading it through the Ninth Circuit Court of Appeals before the case is brought to the United States Supreme Court. The Foundation is committed to achieving full federal marriage equality.

For more information visit www.afer.org

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*From Lambda Legal:

Lambda Legal Calls On California Supreme Court to Confirm Prop 8 Proponents Cannot Press Appeal

“THEY ARE NOT LAW ENFORCERS AND HAVE THE SAME LIMITED RIGHTS AS EVERYONE ELSE TO LITIGATE ONLY WHEN THEIR OWN RIGHTS ARE AT STAKE, NOT MERELY TO ASSERT THEIR OPINIONS ABOUT OTHERS’ RIGHTS.”

(San Francisco, February 16, 2011) — Today the California Supreme Court agreed to answer a question by the U.S. Ninth Circuit Court of Appeals on whether or not supporters of a California ballot measure can continue litigation about that measure’s constitutionality when state officials decide against doing so. A three-judge panel of the U.S. Ninth Circuit Court of Appeals certified the question in the Prop 8 case, Perry v. Schwarzenegger, on January 4. In response to today’s announcement, Marriage Project Director Jennifer C. Pizer of Lambda Legal issued the following statement.

“Because the federal appeals judges said they need clarification, we look forward to a decision by the California Supreme Court confirming that initiative proponents lack legal standing to continue the Perry case. They are not law enforcers, and have the same limited rights as everyone else to litigate only when their own rights are at stake, not merely to assert their opinions about others’ rights.”

Initiative proponents also cannot step into the shoes of the attorney general, the governor or other state officials. The reason for this is basic: the governor and attorney general are elected by the people to represent all the people, not just one point of view on one issue, out of countless, competing concerns. Most importantly, state officials swear an oath to uphold the federal and state constitutions, including their abiding promises of equal protection and due process for everyone. Initiative proponents take no such oath, and have no such duties.

Empowering initiative proponents with a special, new exception to these rules would be mistaken in any circumstances but the error is especially stark in this case. Prop 8’s proponents claim to represent “the people,” but in fact they only represent some seven million voters in a state of 38 million residents. Moreover, according to the U.S. Census, the tiny group of same-sex-couple residents targeted by Prop 8 is only around 200,000 people, or less than 2% of the population.

The state high court’s previous decision to allow the initiative power to be used in the unprecedented way Prop 8 did – to strip a terribly vulnerable minority of a fundamental constitutional right – also stripped the equality guarantees out of the California Constitution. Yet another departure now from bedrock California law to allow proponents an exception from the “legal standing” rules would invite further, deeply problematic consequences. It would mean proponents could enter every case about an initiative to argue against the state’s position. They could refuse ever to compromise about anything concerning the litigation process. And they could object to every settlement plan based on ideology about what the law should be, rather than what it is.

If the California Supreme Court rules that initiative proponents do indeed lack standing, as we believe is proper, we hope it brings a prompt end to the barrier facing lesbian and gay couples, who only wish to love and care for each other with their government’s equal blessing in civil marriage.”

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Good As You

—  David Taffet

Study: positive family attitudes have major health and well-being implications for LGBT kids

For the first time, researchers have established a clear link between accepting family attitudes and behaviors towards their lesbian, gay, bisexual and transgender (LGBT) children and significantly decreased risk and better overall health in adulthood.  The study shows that specific parental and caregiver behaviors — such as advocating for their children when they are mistreated because of their LGBT identity or supporting their gender expression — protect against depression, substance abuse, suicidal thoughts and suicide attempts in early adulthood. In addition, LGBT youth with highly accepting families have significantly higher levels of self-esteem and social support in young adulthood.

This may seem obvious to we LGBT folk, but as we know it is not necessarily obvious to parents, friends and other family members.  For example, watch members of a California family describe their individual paths to understanding these truths in this amazing video.

Major research findings include:

* Family accepting behaviors towards LGBT youth during adolescence protect against suicide, depression and substance abuse.

* LGBT young adults who reported high levels of family acceptance during adolescence had significantly higher levels of self-esteem, social support and general health, compared to peers with low levels of family acceptance.

* LGBT young adults who reported low levels of family acceptance during adolescence were over three times more likely to have suicidal thoughts and to report suicide attempts, compared to those with high levels of family acceptance.

* High religious involvement in families was strongly associated with low acceptance of LGBT children.

Results of the research are being translated into practical tools for parents by the study’s author Dr. Caitlin Ryan and her team at the Family Acceptance Project in collaboration with Child and Adolescent Services at the University of California, San Francisco, with funding from the Robert Wood Johnson Foundation.  They use a behavioral approach to help ethnically and religiously diverse families decrease rejection and increase support for their LGBT children to reduce risk for suicide, depression, substance abuse, and HIV, to promote well-being and to prevent homelessness and placement in custodial care. This approach helps communities and providers to engage diverse families as allies in decreasing their LGBT children’s risk and increasing their well-being while respecting the family’s deeply held values. This work is being conducted in English, Spanish and Chinese with families from all ethnic backgrounds, including immigrant and very low income families, and those whose children are out-of-home in foster care and juvenile justice facilities.

The study is published in the Journal of Child and Adolescent Psychiatric Nursing, a journal of the International Society of Psychiatric-Mental Health Nurses, in a peer-reviewed article titled “Family Acceptance in Adolescence and the Health of LGBT Young Adults.”
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Pentagon Working Group Report Confirms No Major Impediments to Open Service

The Pentagon’s Comprehensive Working Group studying how to implement repeal of “Don’t Ask, Don’t Tell” has found few hurdles to implementation of open service by gays and lesbians, according to their report released today.  The news provides tremendous momentum for upcoming Senate action on repeal.

“This issue has been studied for fifty years, including by the military itself, and the results from over twenty-two studies are uniform: open service does not harm effectiveness,” said HRC President Joe Solmonese.  “The small handful of Senators blocking repeal no longer have any fig leaves behind which to hide.  The time for repeal is now.”

A survey of troops – while not a referendum on repeal but rather a tool to gauge attitudes about repeal – showed that seventy percent of service members thought having an openly gay or lesbian colleague in their unit would have either a positive, mixed or no effect.  For those who believe they have already worked with a gay or lesbian service member, ninety-two percent say their unit’s ability to work together was very good, good or neither good nor poor.

“America’s men and women in uniform are professionals who already serve with gays and lesbians and repeal will do nothing to change their dedication to protecting our nation,” said Solmonese. “Senators who said they want to hear from military leaders and troops now have their answers.  Repeal of ‘Don’t Ask, Don’t Tell’ will allow every qualified man and woman to serve without sacrificing the high standards that have made our military great.”

Twenty-five nations allow open service by gays and lesbians and all of them have implemented repeal of their bans without major disruptions – including close allies such as the United Kingdom, Canada, Australia and Israel.  Further, a failure of Congress to act now will tie the hands of military leaders who have asked for the power to implement the changes that today’s report lays out.

TAKE ACTION NOW and tell the Senate it’s time to get rid of “Don’t Ask, Don’t Tell.”


Human Rights Campaign | HRC Back Story

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DADT report will be released tomorrow as lame duck schedule presents a major impediment

During the White House press briefing, Robert Gibbs responded to questions about the Pentagon’s DADT study from Chris Johnson from the Washington Blade:

White House Press Secretary Robert Gibbs on Monday confirmed that Obama was meeting the Joint Chiefs of Staff in the Oval Office to discuss “Don’t Ask, Don’t Tell” and the Pentagon report on the matter.

“I think the president right now is in the Oval Office meeting with the Joint Chiefs about the issue and about the report,” Gibbs said in response to questioning from the Blade. “We look forward to the presentation by [Defense] Secretary [Robert] Gates and [Chairman of the Joint Chiefs of Staff] Adm. [Mike] Mullen tomorrow and then their testimony later in the week.”

Gibbs said he believes the president has seen “parts of” the report on “Don’t Ask, Don’t Tell,” which is due for release Tuesday. Still, Gibbs said he would need to double-check whether Obama has indeed seen the study and doesn’t “want to ahead of” the release of report “in terms of commenting.”

The Obama administration agreed to the schedule for the Pentagon’s DADT report. The geniuses in the White House wanted it released after the midterms, hence the December 1st release date. Given the time crunch in the lame duck, Secretary Gates magnanimously agreed to release the report one day early. You do recall that on April 30th, Gates told Congress in a “strongly worded letter” that he didn’t want any votes on DADT repeal before the report was released. That provided a key talking points for opponents of repeal. Now, timing is the enemy. Unless things move seamlessly in the Senate over the next few weeks (and that never happens), passage of the DADT language is in big trouble.

The President really needs to step up his game here. He’s meeting with Congressional leaders tomorrow, but the President did not list the Defense Authorization bill as one of his priorities, according to The Hill. We need to put pressure on the President. Sign our letter to Obama, which asks him to start calling Senators, here.

And, via SLDN, Senators need to hear from all of us, too. If you live in any of these target states (or contributed to any of these Senators), call them:

UPDATED LIST: KEY SENATORS WHO NEED TO HEAR FROM REPEAL SUPPORTERS NOW:

–Harry Reid (D-NV);

–Susan Collins (R-ME);

–Olympia Snowe (R-ME);

–Mark Pryor (D-AR.);

–Blanche Lincoln (D-AR)

–Richard Lugar (R-IN);

–Judd Gregg (R-NH);

–Scott Brown (R-MA)

–George Voinovich (R-OH);

–Kit Bond (R-MO);

–Joe Manchin (D-WV)

–Lisa Murkowski (R-AK)

–Mark Kirk (R-IL)

–James Webb (D-VA)

ACTION ALERT BY REPEAL ADVOCATES: http://bit.ly/dBKRcd

The Capitol switchboard is 202-224-3121.




AMERICAblog Gay

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Major Witt: ‘I am thrilled to be able to serve in the Air Force again’

The Advocate posted Major Witt’s response to the DOJ’s decision to appeal while not seeking a stay, which means she can be reinstated:

“I am thrilled to be able to serve in the Air Force again,” Witt said in a Tuesday statement circulated by the American Civil Liberties Union of Washington, which litigated her case. “The men and women in the unit are like family members to me, and I’ve been waiting a long time to rejoin them. Thousands of men and women who are gay and lesbian honorably serve this country in our military. Many people forget that the U.S. military is the most diverse workforce in the world — we are extremely versed in adaptation.”

We are lucky to have people like Margaret Witt in our military. The men and women who serve with Witt are a lot wiser than many of the elected officials here in DC. And, DOJ should stop lying about its need to appeal this case.

Pam Spaulding covered SLDN’s 2009 dinner, when Major Witt received the Barry Winchell award for courage. This excerpt from Major Witt’s speech says a lot about her and her military colleagues. It’s powerful:

I’d like to tell you a little of what I miss about the military. I miss my friends — my military family — both active duty and reserves.

I have literally received calls from all over the world asking —“what can I do?” Two years after I literally disappeared I got a call from a dear friend, a SMSgt in my unit. We had deployed together many times –and to this day I consider him my big brother. He was planning his retirement ceremony and wanted me to be one of his invited guests. He knew I would be there for him even if it meant stepping back into my squadron. When the day came – I wasn’t even sure I would be allowed on base let alone through the doors of my unit. Once through the gate I cried all the way to the parking lot. I think it took me ten minutes to even open my car door. Once I did I was spotted immediately, hugged and taken inside. I was greeted with more hugs, tears and dozens of flowers. During my friend’s ceremony he called me up to the front of the room. It was his big day and in his usual selfless character he started to talk about me and my career. When he finished the entire squadron gave me a standing ovation. I was overwhelmed. He had given me the retirement ceremony that had been taken from me. That’s the kind of people I served with. That’s what I miss—and that is how I affected unit cohesion and morale.

After 18 years of dedicated, decorated service, my commanders discovered that I am a lesbian. The Air Force told me my career was over. But I stood up to the ban and challenged my discharge.

So glad she did.

Major Witt has already made history. And, I hope she does again when DOJ loses on appeal. That will be the third time Witt and her lawyers have beaten the government in court.

All she wants to do is serve her country.




AMERICAblog Gay

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DOJ will appeal decision in Major Margaret Witt’s DADT case

Remember yesterday how Assistant Attorney General Tony West told reporters how hard it was for the Obama administration to defend DADT and DOMA in the courts? Yeah, right.

On September 24, 2010
, Federal District Court Judge Ronald Leighton ruled that Major Margaret Witt’s discharge under DADT was unconstitutional. Leighton “started breaking up and was in tears” as he announced that Witt won her case against DADT and must be reinstated into the military. At the time, I wrote:

Now, we have to wait to see if the Department of Justice will appeal this case, too.

Well, guess what? Today, DOJ took the first step to appeal the decision that reinstated Major Margaret Will. Igor Volsky has the details:

Moments ago, the Justice Department appealed a federal district court ruling reinstating Air Force Major Margaret Witt after she was discharged from the military under Don’t Ask, Don’t Tell to Ninth Circuit Court of Appeals. But the government did not ask the court to stay the decision — suggesting that Witt will be able to serve in the Air Force through the duration of the appeal process.

How magnanimous of DOJ to allow her to serve.

No wonder we’re disappointed and disillusioned. (And, we are.) This appeal, aimed at Major Witt, seems particularly shameful.

UPDATE: This lame-ass statement from Robert Gibbs doesn’t help:

“Today, the Department of Justice filed a notice of appeal in a case involving a legal challenge to the Don’t Ask, Don’t Tell (DADT) policy, as the Department traditionally does when acts of Congress have been held unconstitutional. This filing in no way diminishes the President’s — and his Administration’s — firm commitment to achieving a legislative repeal of DADT this year. Indeed, it clearly shows why Congress must act to end this misguided policy. In recent weeks, the President and other Administration officials have been working with the Senate to move forward with the passage of the National Defense Authorization Act, including a repeal of DADT, during the lame duck.”

First, let’s be clear: despite the constant assertions to the contrary, DOJ did not have to file this appeal.

The filing further diminishes the President’s credibility with the LGBT community. He really better get that Defense bill with the DADT language passed during the lame duck. He promised. Repeatedly.

Witt Notice of Appeal




AMERICAblog Gay

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DOJ Will Appeal DADT Reinstatement Of USAF Major Margaret Witt

The Department of Justice has filed a brief announcing their intent to appeal the reinstatement of Major Margaret Witt, whose DADT-related discharge was overturned by a federal court in September. Chris Geidner reports at Metro Weekly:

With today’s filing, DOJ stated in a docketing statement required to be filed with the Notice of Appeal that the principal issue to be raised on appeal is: “Whether plaintiff’s discharge pursuant to 10 U.S.C 654 and its implementing regulations was constitutional and whether plaintiff should have been ordered reinstated to the military, subject to meeting applicable requirements respecting qualifications for continued service.”

Geidner adds that White House press secretary Robert Gibbs took note of today’s action by the DOJ and cautioned, “This filing in no way diminishes the President’s — and his Administration’s — firm commitment to achieving a legislative repeal of DADT this year. Indeed, it clearly shows why Congress must act to end this misguided policy.”

Joe. My. God.

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DADT and Major Witt: The Third Act is About to Begin.

DADT and Major Witt:  The Third Act is About to Begin.

Tomorrow the Obama Administration and its Department of Justice must decide yet again whether to appeal a Don’t Ask, Don’t Tell court case they have lost. The sixty-day period the government had to appeal Witt v. Department of the Air Force which began on September 24th, is at its end.

Major Witt

The Witt case is a bit hard to understand, but hang in there with me.
So far, two acts of what look to be a three act play have been performed:

The main scene of Act I took place at the Ninth Circuit Court of Appeals as it ruled, in May 2008, that Don’t Ask, Don’t Tell was unconstitutional as written — only if the government could show actual harm to a unit in terms of its cohesion could a member be discharged.  

When the government chose not to appeal this ruling to the Supreme Court, this so-called  Witt standard became the law of the territory of the United States assigned to the Ninth Circuit. In theory, anyone discharged under Don’t Ask, Don’t Tell in CA, OR, WA, AK, HI, NV, AZ, ID, MT, Guam, or the Marianas could challenge their dismissal under this new standard. Major Witt’s challenge was then remanded to the Washington District Court to reconsider the specific circumstances under which she was discharged in light of the ruling.

In Act II, Judge Leighton heard the case and, applying the Ninth Circuit’s decision specifically to Major Witt’s circumstances, issued his verdict and further ordered that Major Witt be reinstated into the Air Force. He ruled that her discharge was unconstitutional because the Air Force had failed to demonstrate any benefit to “unit cohesion” or any other benefit resulting from her forced exit. This decision was handed on September 24th of this year.

As I reported in What’s Next for Major Witt, this was not quite the victory it seemed. All Major Witt could do was sit at home and wait for the government to raise the curtain on its decision on whether to appeal.

Tomorrow, the curtain gets raised and Act III begins.

The government could choose not to appeal — a path that is extremely unlikely given the administration’s insistence so far on appealing all similar cases. But if it chooses not to, Major Witt should be readmitted into the Air Force forthwith. The play would end abruptly, but happily. (This would not affect any other discharges because the decision by Judge Leighton applies only to Major Witt. Anyone else wanting to contest a possible dismissal on the basis of the Witt Standard would have to seek their own legal challenge.  To my knowledge, no one else has done so except for Colonel Fehrenbach, who filed for an injunction to prevent his discharge under DADT; the Air Force is still considering his case.)

In the likely event that there is an appeal, we will be in for many more scenes: another round of requests for stays, requests for denials of stays, and likely more drama at the Supreme Court.

Once the government announces an appeal to the Ninth Circuit, they will have to ask for a stay of Judge Leighton’s order; otherwise the Air Force would presumably be forced to let Major Witt serve her country immediately (a tragedy to some, but likely not to the audience, who would cheer).

Unlike in Log Cabin Republicans v. United States, which tread on previously uncovered territory (the constitutionality of DADT under any circumstance), Judge Leighton’s decision is simply a straightforward application of a ruling handed down by the Ninth Circuit itself.  Therefore, to a layman’s understanding of how stays work, it is hard to see how that same Ninth Circuit could rationalize issuing a permanent stay of Judge Leighton’s order pending an appellate hearing.

Assuming the Ninth Circuit takes its Witt decision to heart and denies a stay request, the government will presumably appeal the denial-of-stay decision to the Supreme Court — just as LCR attorneys appealed the unfavorable stay decision they received from the Ninth.  But while it was pretty clear what the Supreme Court was going to do in Log Cabin Republicans (uphold the Ninth Circuit-issued stay, which they did), it is not at all clear what will happen here.

As with LCR, the request for a stay will first go to Judge Kennedy (assigned to handle stay requests for all Ninth Circuit appeals). He can agree to the stay, deny it or refer the decision to the entire Supreme Court.

If no stay is ultimately granted, Major Witt would presumably be reinstated pending appeal. She would serve the entire time it took for this case to be scheduled, heard and decided — likely more than a year.  If DADT were not to be repealed, and she ultimately lost the case, she would then be re-discharged!

Even if the Senate were to pass the NDAA with Don’t Ask, Don’t Tell repeal in it and it was signed by the President, Major Witt’s case would still not necessarily be moot. The repeal of DADT only goes into effect 60 days after the President, the Secretary of Defense and Admiral Mullen certify the report. Even then the Department of Defense would still have the authority to dismiss homosexuals at will until and unless new regulations were issued. All repeal will do is take away the statutory requirement that they be dismissed, not the legality of doing so.  The government could, in theory, continue to argue that Major Witt was correctly dismissed and should remain so.

Who knows? Perhaps three acts will not be enough.

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Quote from Judge Leighton’s decision:


The evidence produced at trial overwhelmingly supports the conclusion that the suspension and discharge of Margaret Witt did not significantly further the important government interest in advancing unit morale and cohesion. To the contrary, the actions taken against Major Witt had the opposite effect.

The evidence before the Court is that Major Margaret Witt was an exemplary officer. She was an effective leader, a caring mentor, a skilled clinician, and an integral member of an effective team. Her loss within the squadron resulted in a diminution of the unit’s ability to carry out its mission. Good flight nurses are hard to find. The evidence clearly supports the plaintiff’s assertion that the reinstatement of Major Witt would not adversely affect the morale or unit cohesion of the 446th AES. The only evidence to the contrary comes in the form of survey responses and preference polls.

Witt Lawsuit Timeline:

  • April 2006: Witt files suit in United States District Court.
  • Fall, 2007: Witt’s case is dismissed by the District Court. She appeals to the Ninth Circuit.
  • November 5, 2007: Oral arguments are heard by a three judge panel of the Ninth Circuit.
  • May 21, 2008: Decision is handed down.
  • May 3, 2009:  The government declines to appeal, leaving Witt as binding on the Ninth Circuit. The case is remanded back to District Court for trial under this new standard.
  • September 13, 2010:  Witt’s case began anew in District Court.
  • September 21, 2010:  Trial ends.  Judge Leighton announces a decision to be handed down September 24, 2010.
  • September 24, 2010: Judge Leighton hands down his decision.
  • November 23, 2010: Decision by government to appeal or not is due

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KY jolly: Gay man to lead major Southern city

This just in from the Victory Fund:

Kentucky’s second-largest city has elected an openly gay man as its next mayor. Vice-Mayor Jim Gray was victorious tonight in his second campaign for the city’s top job, beating incumbent Mayor Jim Newberry.

BREAKING: Lexington, Kentucky elects openly gay mayor [Gay Politics]




Good As You

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Gay Couple Denied Wedding Announcement by Major NH Newspaper

Nh

Dan Savage points us to this unfortunate story from New Hampshire.

Greg and Aurelio, who are marrying this weekend in Manchester, New Hampshire, where same-sex marriage became legal on January 1, are being denied a wedding announcement by the Union-Leader, New Hampshire's second-largest paper.

Kate Parker writes:

The wedding is this Saturday and I received a phone call from Greg yesterday letting me know that he tried to get their wedding announced in the Union Leader, since Greg was from the Manchester, NH area.  He was told that they don’t allow gay weddings to be announced and he asked to talk to the editor.  The editor simply told him it has been the “policy of the newspaper” and that as the editor, he has the write to print whatever he’d like.  This immediately outraged me, as Greg and Aurelio are legally allowed to marry in NH, NH has anti-discrimination laws in place that include sexual orientation, but because of the 1st Amendment, they were out of luck.

This is where this story gets so much more upsetting, and I thank Greg and Aurelio for allowing me to share their situation:

Aurelio is in the process of becoming a US citizen.  He has his social security number, and his driver’s license.  Venezuela is a very conservative country and many citizens don’t support gay marriage or homosexuality in general.  Actually, this fact is so true, that half of Aurelio’s family just discovered he was gay when we sent their wedding invitation to them last week.  Because of this fact, Greg and Aurelio wanted to make their wedding as public as possible in the US in order to plead to a judge to allow him to stay in the US for fear of his safety from his countrymen should be return to Venezuela as an openly gay man.

Contact information for the Union-Leader, should you wish to use it, is here.


Towleroad News #gay

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