National
Prop 8 case wraps up, ruling expected in weeks
Appeals could take years; may be destined for Supreme Court
Attorneys Ted Olson and David Boies (front) are waging the case against Proposition 8, which banned same-sex marriage in California. (Photo courtesy of Equal Rights Foundation)
Marriage equality supporters were focused this week on the closing arguments in a case that could end California’s ban on same-sex marriage and similar bans throughout the country.
In the case Perry v. Schwarzenegger, attorney Ted Olson, a former U.S. solicitor general for former President George W. Bush, was set to give his final arguments in favor of same-sex marriage on Wednesday, after Blade deadline.
The legal challenge, pending before Chief Judge Vaughn Walker of the U.S. District Court of Northern California, aims to invalidate Proposition 8, a ballot initiative in 2008 that ended same-sex marriage in the Golden State.
In a conference call last week with reporters, Olson made the case for same-sex marriage in California. He noted that the U.S. Supreme Court has “declared again and again” that being able to choose the person one wants to marry “is a fundamental right in this country.”
“It is vital to the opportunity for people to be a part of communities, of neighborhoods — to be able to join together in a committed relationship and to bond with one another in a relationship sanctioned by the state,” he said.
Olson compared Prop 8 to state laws banning interracial marriage, which the U.S. Supreme Court struck down in the 1967 case Loving v. Virginia, and said he was presenting the same arguments in the Perry case.
“The parents of our president of the United States would have committed a crime had they been married at the time our president was born,” Olson said.
Olson said Prop 8 is unconstitutional in part because the referendum created four separate classes of people in California with respect to marriage.
They are same-sex couples who married in California before Prop 8 passed and remain married; same-sex couples who cannot marry; same-sex couples who married in other jurisdictions and have full legal marriage rights in California; and opposite-sex couples whom Olson said can marry whomever those choose “even if they’re in prison, even if they’re child abusers, or even if they’re 90 years old.”
Olson litigated the case in partnership with David Boies, an attorney who’s also been involved in high-profile cases. The two men were on opposite sides of Bush v. Gore in 2000; Olson represented then-Republican presidential candidate Bush while Boies represented Democratic presidential candidate Al Gore.
Boies, who cross-examined defendant witnesses during the trial, said, “there isn’t any support” for the arguments advanced by proponents of Prop 8 during the trial.
Proponents of Prop 8, Boies said, presented several arguments that failed under examination, such as the purpose of marriage being procreation, that marriage has always been between one man and one woman, and that same-sex marriages could endanger opposite-sex marriages.
“None of the defendant witnesses supported those propositions, and, in fact, all of their witnesses who spoke on those issued ended up giving contrary testimony,” Boies said.
For example, he said, witnesses under examination acknowledged that procreation has never been a requirement for marriage and many societies in the past have allowed same-sex marriage, including for a time California after the state’s Supreme Court in 2008 ruled that same-sex nuptials were mandated under the state constitution.
“It was only the passage of Proposition 8 that took this right away from gay and lesbian couples even in California,” Boies said.
Additionally, Boies said defendants’ witnesses acknowledged on the stand that prohibiting LGBT couples from marrying “caused them serious damage, and caused the hundreds of thousands of children that those couples were raising serious damage.”
Boies also said defendants were unable to produce witnesses that could provide “a shred of evidence” that same-sex marriage endangers opposite-sex marriage.
“It’s a critically important case, but it’s one in which the facts really are not in dispute,” Boies said. “The other side doesn’t have a legal argument, they don’t have a factual argument — they got a circular bumper sticker for a case.”
Proponents of Prop 8 will also have an opportunity to offer remarks during closing arguments. Chuck Cooper, lead attorney for defendants, will represent those arguing for the court to uphold Prop 8.
In a statement, Jim Campbell, an attorney for Alliance Defense Fund, a conservative legal firm working on the case, said defendants would emphasize arguments they made throughout the trial.
“The team of attorneys defending Proposition 8 will highlight all the reasons why Proposition 8 is constitutional,” he said. “In doing so, they will emphasize the reasons why Proposition 8 is not only rational, but also why preserving marriage as one man and one woman is good social policy.”
Jennifer Pizer, marriage project director and senior counsel for Lambda Legal, predicated both sides in the Perry case would “survey the evidence” already presented during the trial.
She said Olson and Boies presented “a massive evidentiary record” before the court and expected them “to offer a structure for this mountain of relevant evidence that they have submitted.”
For proponents of Prop 8, Pizer said she expects attorneys to “make a mountain out of the barely noticeable molehill of evidence” that they’ve submitted.
She said much of the defendants’ evidence was submitted from individuals who weren’t qualified as experts, meaning they weren’t in court and qualified according to the rules and therefore not examined.
“The defendants offered into evidence a pile of articles without explanation of who the authors were or why any of their writings might be relevant to anything,” she said. “So I suspect that Chuck Cooper may refer to many of those documents as if they were relevant evidence, but they’re not.”
Pizer also predicted that the defendants would argue that the “anti-gay prejudice that infused and inspired the Prop 8 campaign” isn’t legally relevant to whether the initiative is constitutional. Still, Pizer said she believes this anti-gay bias was the sole purpose of Prop 8.
“The proponents of Prop 8 were inspired by anti-gay prejudice and they sent the voting public misinformation in a deliberate attempt to confuse and induce people to vote their prejudice into law — and they succeeded,” she said.
Pizer said Lambda was involved in the Perry case by filing two friend-of-the-court briefs in favor of the legal challenge to Prop 8 as well as providing resource assistance to plaintiffs in the case.
Earlier this month, Walker presented an 11-page list of questions he wanted attorneys on both sides of the case to answer during closing arguments. Among the topics for plaintiffs was a requested review of any empirical data showing that the availability of same-sex marriage reduces discrimination against LGBT people.
During the conference call, Olson said that such data can be found in the ballot label for Prop 8, which noted the measure “eliminates the rights for same-sex couples to marry.”
“You are not only stating that the state creates discrimination, but that the state sanctions discrimination — and sanctions the points of the attitudes — that bring about private discrimination,” Olson said. “It has always been the case that when the court eliminates state discrimination … that people open up and realize that what they’re doing themselves is not permissible.”
Another question was how the court could find Prop 8 unconstitutional without also invalidating the Defense of Marriage Act, the 1996 law prohibiting federal recognition of same-sex marriages.
Boies said the matter under consideration is different from DOMA because state law traditionally determines marriage in the United States, although some of the constitutional arguments against DOMA are similar to those against Prop 8.
“For all of the rights that are a matter of state law — which are the majority of rights that are involved — it is critical that people have the right to marry even if DOMA were to continue to exist,” Boies said.
Several observers following the case have predicted that Walker will rule in favor of plaintiffs, although how subsequent courts will rule on any appeal remains to be seen.
Pizer said she couldn’t predict how Walker will rule in the case, but noted that the questions he’s posed show a focus on “questions of causation.”
“He is focused on whether there are adequate government purposes and whether there’s a proper causal relationship between what Prop 8 actually does and goals that the state is actually permitted to have,” she said. “Advancing prejudice is never a proper government purpose.”
In response to a Blade inquiry on the timeline for the case, Olson said he expects a decision from Walker in the case within weeks of the closing arguments. The next step would be taking the case to the U.S. Court of Appeals for the Ninth Circuit.
Olson said he hopes that Walker will find Prop 8 unconstitutional and allow LGBT people to start marrying in California immediately, but noted that if he withholds institution of that decision, plaintiffs hope the Ninth Circuit would hear the case “in a hurry.”
“That’s probably a process that would take perhaps a year, although we moved through this case fairly rapidly so far,” Olson said.
The case could then be appealed to the U.S. Supreme Court. Olson said following the appeals court ruling, it would take six to eight months to get the case on the docket for the high court.
But Pizer said it’s difficult to determine how long the case would remain in the Ninth Circuit because it could first go before a three-judge panel — and then advance to an 11-judge panel.
“That’s a long way of saying it’s impossible to tell how long it would be between now and the Supreme Court,” she said. “It might be two years or three years. Anybody who gives you a prediction is making a guess.”
Asked whether the Supreme Court would examine only the constitutionality of Prop 8 or the validity of same-sex marriage bans throughout the country, Olson said the scope of the examination would be up to the Supreme Court.
“It will also be a part and a function of what the district court and the Ninth Circuit of Appeals decides, and who’s the party bringing the case to the Supreme Court, but I think that the court will have a menu of opportunities,” he said.
Olson said it’s possible the Supreme Court would only examine the constitutionality of the same-sex marriage ban in California because Prop 8 is “particularly egregious.”
He noted that California was the only state to allow same-sex couples to marry and then eliminate that right — and the only state to create four sets of classes of couples.
Still, Olson said “at the base” of the Perry case is the fundamental right to marry, which would apply to same-sex marriage bans throughout the country.
“I think there will be a great temptation once it gets to the Supreme Court for the justices to say, ‘This case can come back to us in various forms; we should look at the fundamental rights and decide the rights of these Americans now once and for all,’” Olson said. “We hope that that would be the case.”
The White House
Expanded global gag rule to ban US foreign aid to groups that promote ‘gender ideology’
Activists, officials say new regulation will limit access to gender-affirming care
The Trump-Vance administration has announced it will expand the global gag rule to ban U.S. foreign aid for groups that promote “gender ideology.”
Deputy Secretary of State Christopher Landau in a memo, titled Combating Gender Ideology in Foreign Assistance, the Federal Register published on Jan. 27 notes “previous administrations … used” U.S. foreign assistance “to fund the denial of the biological reality of sex, promoting a radical ideology that permits men to self-identify as women, indoctrinate children with radical gender ideology, and allow men to gain access to intimate single-sex spaces and activities designed for women.”
“Efforts to eradicate the biological reality of sex fundamentally attack women by depriving them of their dignity, safety, and well-being. It also threatens the wellbeing of children by encouraging them to undergo life-altering surgical and chemical interventions that carry serious risks of lifelong harms like infertility,” reads the memo. “The erasure of sex in language and policy has a corrosive impact not just on women and children but, as an attack on truth and human nature, it harms every nation. It is the purpose of this rule to prohibit the use of foreign assistance to support radical gender ideology, including by ending support for international organizations and multilateral organizations that pressure nations to embrace radical gender ideology, or otherwise promote gender ideology.”
President Donald Trump on Jan. 28, 2025, issued an executive order — Protecting Children from Chemical and Surgical Mutilation — that banned federal funding for gender-affirming care for minors.
President Ronald Reagan in 1985 implemented the global gag rule, also known as the “Mexico City” policy, which bans U.S. foreign aid for groups that support abortion and/or offer abortion-related services.
Trump reinstated the rule during his first administration. The White House this week expanded the ban to include groups that support gender-affirming care and diversity, equity, and inclusion programs.
The expanded global gag rule will take effect on Feb. 26.
“None of the funds made available by this act or any other Act may be made available in contravention of Executive Order 14187, relating to Protecting Children From Chemical and Surgical Mutilation, or shall be used or transferred to another federal agency, board, or commission to fund any domestic or international non-governmental organization or any other program, organization, or association coordinated or operated by such non-governmental organization that either offers counseling regarding sex change surgeries, promotes sex change surgeries for any reason as an option, conducts or subsidizes sex change surgeries, promotes the use of medications or other substances to halt the onset of puberty or sexual development of minors, or otherwise promotes transgenderism,” wrote Landau in his memo.
Landau wrote the State Department “does not believe taxpayer dollars should support sex-rejecting procedures, directly or indirectly for individuals of any age.”
“A person’s body (including its organs, organ systems, and processes natural to human development like puberty) are either healthy or unhealthy based on whether they are operating according to their biological functions,” reads his memo. “Organs or organ systems do not become unhealthy simply because the individual may experience psychological distress relating to his or her sexed body. For this reason, removing a patient’s breasts as a treatment for breast cancer is fundamentally different from performing the same procedure solely to alleviate mental distress arising from gender dysphoria. The former procedure aims to restore bodily health and to remove cancerous tissue. In contrast, removing healthy breasts or interrupting normally occurring puberty to ‘affirm’ one’s ‘gender identity’ involves the intentional destruction of healthy biological functions.”
Landau added there “is also lack of clarity about what sex-rejecting procedures’ fundamental aims are, unlike the broad consensus about the purpose of medical treatments for conditions like appendicitis, diabetes, or severe depression.”
“These procedures lack strong evidentiary foundations, and our understanding of long-term health impacts is limited and needs to be better understood,” he wrote. “Imposing restrictions, as this rule proposes, on sex-rejecting procedures for individuals of any age is necessary for the (State) Department to protect taxpayer dollars from abuse in support of radical ideological aims.”
Landau added the State Department “has determined that applying this rule to non-military foreign assistance broadly is necessary to ensure that its foreign assistance programs do not support foreign NGOs and IOs (international organizations) that promote gender ideology, and U.S. NGOs that provide sex-rejecting procedures, and to ensure the integrity of programs such as humanitarian assistance, gender-related programs, and more, do not promote gender ideology.”
“This rule will also allow for more foreign assistance funds to support organizations that promote biological truth in their foreign assistance programs and help the (State) Department to establish new partnerships,” he wrote.
The full memo can be found here.
Council for Global Equality Senior Policy Fellow Beirne Roose-Snyder on Wednesday said the expansion of the so-called global gag rule will “absolutely impact HIV services where we know we need to target services, to that there are non-stigmatizing, safe spaces for people to talk through all of their medical needs, and being trans is really important to be able to disclose to your health care provider so that you can get ARVs, so you can get PrEP in the right ways.” Roose-Snyder added the expanded ban will also impact access to gender-affirming health care, food assistance programs and humanitarian aid around the world.
“This rule is not about gender-affirming care at all,” she said during a virtual press conference the Universal Access Project organized.
“It is about really saying that if you want to take U.S. funds — and it’s certainly not about gender-affirming care for children — it is if you want to take U.S. funds, you cannot have programs or materials or offer counseling or referrals to people who may be struggling with their gender identity,” added Roose-Snyder. “You cannot advocate to maintain your country’s own nondiscrimination laws around gender identity. It is the first place that we’ve ever seen the U.S. government define gender-affirming care, except they call it something a lot different than that.”
The Congressional Equality Caucus, the Democratic Women’s Caucus, the Congressional Hispanic Caucus, the Congressional Asian and Pacific American Caucus, and the Congressional Black Caucus also condemned the global gag rule’s expansion.
“We strongly condemn this weaponization of U.S. foreign assistance to undermine human rights and global health,” said the caucuses in a statement. “We will not rest until we ensure that our foreign aid dollars can never be used as a weapon against women, people of color, or LGBTQI+ people ever again.”
Advocacy groups are demanding the Trump-Vance administration not to deport two gay men to Iran.
MS Now on Jan. 23 reported the two men are among the 40 Iranian nationals who the White House plans to deport.
Iran is among the countries in which consensual same-sex sexual relations remain punishable by death.
The Washington Blade earlier this month reported LGBTQ Iranians have joined anti-government protests that broke out across the country on Dec. 28. Human rights groups say the Iranian government has killed thousands of people since the demonstrations began.
Rebekah Wolf of the American Immigration Council, which represents the two men, told MS Now her clients were scheduled to be on a deportation flight on Jan. 25. A Human Rights Campaign spokesperson on Tuesday told the Blade that one of the men “was able to obtain a temporary stay of removal from the” 10th U.S. Circuit Court of Appeals, and the other “is facing delayed deportation as the result of a measles outbreak at the facility where they’re being held.”
“My (organization, the American Immigration Council) represents those two gay men,” said American Immigration Council Senior Fellow Aaron Reichlin-Melnick in a Jan. 23 post on his Bluesky account. “They had been arrested on charges of sodomy by Iranian moral police, and fled the country seeking asylum. They face the death penalty if returned, yet the Trump (administration) denied their asylum claims in a kangaroo court process.”
“They are terrified,” added Reichlin-Melnick.
My org @immcouncil.org represents those two gay men. They had been arrested on charges of sodomy by Iranian moral police, and fled the country seeking asylum. They face the death penalty if returned, yet the Trump admin denied their asylum claims in a kangaroo court process.
They are terrified.
— Aaron Reichlin-Melnick (@reichlinmelnick.bsky.social) January 23, 2026 at 8:26 AM
Reichlin-Melnick in a second Bluesky post said “deporting people to Iran right now, as body bags line the street, is an immoral, inhumane, and unjust act.”
“That ICE is still considering carrying out the flight this weekend is a sign of an agency and an administration totally divorced from basic human rights,” he added.
Deporting people to Iran right now, as body bags line the street, is an immoral, inhumane, and unjust act. That ICE is still considering carrying out the flight this weekend is a sign of an agency and an administration totally divorced from basic human rights. www.ms.now/news/trump-d…
— Aaron Reichlin-Melnick (@reichlinmelnick.bsky.social) January 23, 2026 at 8:27 AM
HRC Vice President of Government Affairs David Stacy in a statement to the Blade noted Iran “is one of 12 nations that still execute queer people, and we continue to fear for their safety.” Stacy also referenced Renee Good, a 37-year-old lesbian woman who a U.S. Immigration and Customs Enforcement agent shot and killed in Minneapolis on Jan. 7, and Andry Hernández Romero, a gay Venezuelan asylum seeker who the Trump-Vance administration “forcibly disappeared” to El Salvador last year.
“This out-of-control administration continues to target immigrants and terrorize our communities,” said Stacy. “That same cruelty murdered Renee Nicole Good and imprisoned Andry Hernández Romero. We stand with the American Immigration Council and demand that these men receive the due process they deserve. Congress must refuse to fund this outrage and stand against the administration’s shameless dismissal of our constitutional rights.”
Federal Government
Top Democrats reintroduce bill to investigate discrimination against LGBTQ military members
Takano, Jacobs, and Blumenthal sponsored measure
Multiple high-ranking members of Congress reintroduced the Commission on Equity and Reconciliation in the Uniformed Services Act into the U.S. House of Representatives and the U.S. Senate, aiming to establish a commission to investigate discriminatory policies targeting LGBTQ military members.
Three leading Democratic members of Congress — U.S. Rep. Mark Takano (D-Calif.), who is the House Veterans’ Affairs Committee’s ranking member and chairs the Congressional Equality Caucus; U.S. Sen. Richard Blumenthal (D-Conn.), who is the Senate Veterans’ Affairs Committee’s ranking member; and U.S. Rep. Sara Jacobs (D-Calif.) — introduced the bill on Tuesday.
The bill, they say, would establish a commission to investigate the historic and ongoing impacts of discriminatory military policies on LGBTQ servicemembers and veterans.
This comes on the one-year anniversary of the Trump-Vance administration’s 2025 Executive Order 14183, titled “Prioritizing Military Excellence and Readiness,” which essentially banned transgender servicemembers from openly serving in the Armed Forces, leading to the forced separation of thousands of capable and dedicated servicemembers.
In a joint statement, Takano, Blumenthal, and Jacobs shared statistics on how many service members have had their ability to serve revoked due to their sexual orientation:
“Approximately 114,000 servicemembers were discharged on the basis of their sexual orientation between WWII and 2011, while an estimated 870,000 LGBTQ servicemembers have been impacted by hostility, harassment, assault, and law enforcement targeting due to the military policies in place,” the press release reads. “These separations are devastating and have long-reaching impacts. Veterans who were discharged on discriminatory grounds are unable to access their benefits, and under the Trump administration, LGBTQ+ veterans and servicemembers have been openly persecuted.”
The proposed commission is modeled after the Congressional commission that investigated and secured redress for Japanese Americans interned during World War II. Takano’s family was among the more than 82,000 Japanese Americans who received an official apology and redress payment under that commission.
The press release notes this is a major inspiration for the act.
“Qualified servicemembers were hunted down and forced to leave the military at the direction of our government,” said Takano. “These practices have continued, now with our government targeting transgender servicemembers. The forced separation and dishonorable discharges LGBTQ+ people received must be rectified, benefits fully granted, and dignity restored to those who have protected our freedoms.”
“LGBTQ+ servicemembers have long been the target of dangerous and discriminatory policies—resulting in harassment, involuntary discharge, and barriers to their earned benefits,” said Blumenthal. “Establishing this commission is an important step to understand the full scope of harm and address the damage caused by policies like ‘Don’t Ask, Don’t Tell.’ As LGBTQ+ servicemembers and veterans face repugnant and blatant bigotry under the Trump administration, we will keep fighting to secure a more equitable future for all who serve our country in uniform.”
“Instead of righting wrongs and making amends to our LGBTQ+ service members and veterans who’ve suffered injustices for decades, I’m ashamed that the Trump administration has doubled down: kicking trans folks out of the military and banning their enlistment,” said Jacobs. “We know that LGBTQ+ service members and veterans have faced so much ugliness — discrimination, harassment, professional setbacks, and even violence — that has led to unjust discharges and disparities in benefits, but we still don’t have a full picture of all the harm caused. That needs to change. That’s why I’m proud to co-lead this bill to investigate these harms, address the impacts of discriminatory official policies like ‘Don’t Ask, Don’t Tell’ and the transgender military ban, and ensure equity and justice for our LGBTQ+ service members and veterans.”
Takano and Jacobs are leading the bill in the House, while Blumenthal is introducing companion legislation in the Senate.
Takano’s office has profiled and interviewed LGBTQ servicemembers who were harmed by discriminatory policies in the uniformed services.
The Commission on Equity and Reconciliation in the Uniformed Services Act is supported by Minority Veterans of America, Human Rights Campaign, Equality California, SPARTA, and the Transgender American Veterans Association.
In recent weeks, thousands of trans military members were forcibly put into retirement as a result of Trump’s executive order, including five honored by the Human Rights Campaign with a combined 100 years of service, all due to their gender identity: Col. Bree B. Fram (U.S. Space Force), Commander Blake Dremann (U.S. Navy), Lt. Col. (Ret.) Erin Krizek (U.S. Air Force), Chief Petty Officer (Ret.) Jaida McGuire (U.S. Coast Guard), and Sgt. First Class (Ret.) Catherine Schmid (U.S. Army).
Multiple career service members spoke at the ceremony, including Takano. Among the speakers was Frank Kendall III, the 26th U.S. Air Force secretary, who said:
“We are in a moment of crisis that will be worse before it is better. Members of my father’s and mother’s generation would ask each other a question: what did you do during the war? Someday we will all be asked what we did during this time. Please think about the answer that you will give.”
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