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Appeals court to hear DOMA case next week

House Dems urge Boehner to drop defense of anti-gay law

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Litigation challenging the Defense of Marriage Act — as well as House Republicans’ continued defense of the anti-gay law — is receiving renewed attention as a court hearing is set to take place next week in Boston on the constitutionality of the statute.

On Wednesday starting at 10 a.m., a three-judge panel on the First Circuit Court of Appeals will hear arguments on DOMA, which prohibits federal recognition of same-sex marriage, marking the first time an appellate court has considered the constitutionality of the statute.

Normally, oral arguments before the court last 30 minutes, but that time has been extended for an entire hour because judges are hearing two cases: Gill v. Office of Personnel Management, filed by Gay & Lesbian Advocates & Defenders, and Commonwealth of Massachusetts v. Department of Health & Human Services, filed by Massachusetts Attorney General Martha Coakley.

The three-judge panel will be made up of Chief Judge Sandra Lynch as well as Judges Juan Torruella and Michael Boudin. Lynch was appointed by a Democrat, former President Bill Clinton, while Torruella was appointed by former President Ronald Reagan and Boudin was appointed by former President George H.W. Bush.

Representing GLAD at the hearings will be plaintiffs in the GLAD case as well as Mary Bonauto, GLAD’s civil rights project director, who in 2003 successfully argued for the legalization of same-sex marriage in Massachusetts. Massachusetts Assistant Attorney General Maura Healey is set to argue on behalf of her state’s lawsuit against DOMA.

The Justice Department, which, after dropping its defense of DOMA, joined in efforts to declare the law unconstitutional, will also have a presence in the courtroom. Stuart Delery, who’s gay and the acting assistant attorney general for the civil division, is set to represent the Obama administration. He was promoted Feb. 27 to the position.

Defending the anti-gay law in court will be Paul Clement, a solicitor general under former President George W. Bush whom House Speaker John Boehner hired to defend the statute. Clement will be coming to Boston to defend DOMA fresh from oral arguments before the Supreme Court in D.C. against the health care reform law.

The arguments that attorneys will make before judges will likely reflect the basis of the lawsuits they filed. GLAD contends that DOMA violates its plaintiffs’ rights under the Equal Protection Clause, while the State of Massachusetts has said DOMA interferes with a state’s Tenth Amendment right to regulate marriage. The Justice Department will likely join in these arguments.

On the other side, Clement will likely argue that DOMA is justified because it ensures uniformity with marriage laws and that marriage should be reserved for opposite-sex couples to ensure procreation.

In both DOMA cases that are coming before the First Circuit, DOMA was found unconstitutional at the district court level. U.S. District Judge Joseph Tauro, a Nixon appointee, ruled in July 2010 that the anti-gay law was unconstitutional in both cases.

The cases come before the First Circuit just a month after a California federal court ruled against DOMA in the case of Golinski v. United States. In February, the U.S. District Judge Jeffrey White ruled against DOMA on the basis that the anti-gay law “unconstitutionally discriminates against married same-sex couples.”

Jason Wu, a staff attorney for GLAD, said the California district court decision may play out in the oral arguments before the appellate court.

“It always helps when another court affirms what we believe is right, which is that DOMA represents a straight-forward equal protection violation and there is really no good reason to treat gay married couples differently from straight married couples,” Wu said. “The court in Golinksi agreed with us; the district court in Massachusetts, Judge Tauro’s opinion agreed with us. And that’s what will be presented to the First Circuit.”

Wu said GLAD hopes for a decision from the First Circuit in “a timely fashion” after the oral arguments, but said he couldn’t offer a more precise prediction for when a ruling would be handed down. The case dragged out after the Obama administration dropped the defense of DOMA and the House took up defense of the statute, and Wu said the prolonged duration of the lawsuit has harmed plaintiffs.

“It’s been almost two years actually since the district court’s ruling came down in our favor, and in that two-year period, our plaintiffs continue to be harmed,” Wu said. “One of our plaintiffs is owed $50,000, I believe, in tax harm. One of our plaintiffs, Herb Burtis, is 82 years old and continues to be denied the survivor Social Security benefits from his deceased spouse.”

Despite his hopes the case will be resolved, Wu added he expects the Supreme Court will take up the case after a decision is handed down.

“We need resolution as to the constitutionality of DOMA for all married couples in the country because it’s not just couples in Massachusetts who are being harmed by DOMA everyday,” Wu said.

House Republicans elected to take up defense of DOMA in court after the Obama administration early last year announced it would no longer defend the anti-gay statute. In the past week, the Republican defense of DOMA has come under fire from Democrats.

During a hearing before the House Appropriations Legislative Branch subcommittee on Tuesday, House Chief Administrative Officer Dan Strodel asserted Republican leadership had collected nearly $742,000 to fund defense of DOMA in court. Boehner had last year raised the cost cap of defending DOMA to $1.5 million.

Strodel testified that the money had come from the House Salaries, Officers and Employees account. Boehner had threatened to redirect funds from the Justice Department to pay for defense of the law, but Strodel said those funds hadn’t contributed to defense of the statute.

According to the Huffington Post, the issue of defending DOMA prompted a fiery debate between Democrats and Republicans.

Rep. Mike Honda (D-Calif.) reportedly asked House General Counsel Kerry Kirchner why the House is defending an “unconstitutional law that separates all of us” and said the money could go to better uses, such as “resources to the family of Trayvon Martin in Florida.”

Rep. Steven LaTourette (R-Ohio) toed the Republican line on DOMA saying, “When is the Department of Justice going to do their job? You can’t pick which laws you want to defend and which laws you don’t feel like enforcing.”

On Monday, six House Democrats — Reps. Jerrold Nadler (D-N.Y.), Barney Frank (D-Mass.), Tammy Baldwin (D-Wis.), Jared Polis (D-Colo.), David Cicilline (D-R.I.) and John Conyers (D-Mich.) — sent a letter to Boehner renewing their earlier request for a briefing on his defense of DOMA as they urged him to stop defending the law in the wake of a California federal court’s decision against the statute.

“There simply is no legitimate federal interest served by denying married same-sex couples the federal responsibilities and rights that other married couples receive, and the harm caused to these families is unjustifiable,” the letter states. “Two federal courts have agreed, and it is no longer credible to claim that the law is not constitutionally suspect.”

Boehner’s office didn’t respond to the Washington Blade’s request for comment on the letter, but Michael Steel, a Boehner spokesperson, dismissed the letter when talking to the Huffington Post.

“Washington Democrats had two years of unified control over the House, the Senate and the White House to overturn the Defense of Marriage Act,” Steel was quoted as saying. “They chose not to try. We will continue to respect the law, which passed both Houses of Congress with bipartisan support and was signed into law by President Bill Clinton.”

Activity also continues in other DOMA cases. On Monday, the Justice Department submitted briefs in the Golinski case asking the U.S. Ninth Circuit Court of Appeals to expedite consideration of the case. Boehner’s lawyers last month appealed the decision to the the appellate court.

Boehner’s intervention in McLaughlin v. Panetta, the lawsuit filed on behalf of gay troops against DOMA by the Servicemembers Legal Defense Network, is also expected soon. The House has until April 28 to decide if it will defend the anti-gay law against the lawsuit.

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Federal Government

UPenn erases Lia Thomas’s records as part of settlement with White House

University agreed to ban trans women from women’s sports teams

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U.S. Education Secretary Linda McMahon (Screen capture: C-SPAN)

In a settlement with the Trump-Vance administration announced on Tuesday, the University of Pennsylvania will ban transgender athletes from competing and erase swimming records set by transgender former student Lia Thomas.

The U.S. Department of Education’s Office for Civil Rights found the university in violation of Title IX, the federal rights law barring sex based discrimination in educational institutions, by “permitting males to compete in women’s intercollegiate athletics and to occupy women-only intimate facilities.”

The statement issued by University of Pennsylvania President J. Larry Jameson highlighted how the law’s interpretation was changed substantially under President Donald Trump’s second term.

“The Department of Education OCR investigated the participation of one transgender athlete on the women’s swimming team three years ago, during the 2021-2022 swim season,” he wrote. “At that time, Penn was in compliance with NCAA eligibility rules and Title IX as then interpreted.”

Jameson continued, “Penn has always followed — and continues to follow — Title IX and the applicable policy of the NCAA regarding transgender athletes. NCAA eligibility rules changed in February 2025 with Executive Orders 14168 and 14201 and Penn will continue to adhere to these new rules.”

Writing that “we acknowledge that some student-athletes were disadvantaged by these rules” in place while Thomas was allowed to compete, the university president added, “We recognize this and will apologize to those who experienced a competitive disadvantage or experienced anxiety because of the policies in effect at the time.”

“Today’s resolution agreement with UPenn is yet another example of the Trump effect in action,” Education Secretary Linda McMahon said in a statement. “Thanks to the leadership of President Trump, UPenn has agreed both to apologize for its past Title IX violations and to ensure that women’s sports are protected at the university for future generations of female athletes.”

Under former President Joe Biden, the department’s Office of Civil Rights sought to protect against anti-LGBTQ discrimination in education, bringing investigations and enforcement actions in cases where school officials might, for example, require trans students to use restrooms and facilities consistent with their birth sex or fail to respond to peer harassment over their gender identity.

Much of the legal reasoning behind the Biden-Harris administration’s positions extended from the 2020 U.S. Supreme Court case Bostock v. Clayton County, which found that sex-based discrimination includes that which is based on sexual orientation or gender identity under Title VII rules covering employment practices.

The Trump-Vance administration last week put the state of California on notice that its trans athlete policies were, or once were, in violation of Title IX, which comes amid the ongoing battle with Maine over the same issue.

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New York

Two teens shot steps from Stonewall Inn after NYC Pride parade

One of the victims remains in critical condition

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The Stonewall National Memorial in New York on June 19, 2024. (Washington Blade photo by Michael K. Lavers)

On Sunday night, following the annual NYC Pride March, two girls were shot in Sheridan Square, feet away from the historic Stonewall Inn.

According to an NYPD report, the two girls, aged 16 and 17, were shot around 10:15 p.m. as Pride festivities began to wind down. The 16-year-old was struck in the head and, according to police sources, is said to be in critical condition, while the 17-year-old was said to be in stable condition.

The Washington Blade confirmed with the NYPD the details from the police reports and learned no arrests had been made as of noon Monday.

The shooting took place in the Greenwich Village neighborhood of Manhattan, mere feet away from the most famous gay bar in the city — if not the world — the Stonewall Inn. Earlier that day, hundreds of thousands of people marched down Christopher Street to celebrate 55 years of LGBTQ people standing up for their rights.

In June 1969, after police raided the Stonewall Inn, members of the LGBTQ community pushed back, sparking what became known as the Stonewall riots. Over the course of two days, LGBTQ New Yorkers protested the discriminatory policing of queer spaces across the city and mobilized to speak out — and throw bottles if need be — at officers attempting to suppress their existence.

The following year, LGBTQ people returned to the Stonewall Inn and marched through the same streets where queer New Yorkers had been arrested, marking the first “Gay Pride March” in history and declaring that LGBTQ people were not going anywhere.

New York State Assemblywoman Deborah Glick, whose district includes Greenwich Village, took to social media to comment on the shooting.

“After decades of peaceful Pride celebrations — this year gun fire and two people shot near the Stonewall Inn is a reminder that gun violence is everywhere,” the lesbian lawmaker said on X. “Guns are a problem despite the NRA BS.”

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New York

Zohran Mamdani participates in NYC Pride parade

Mayoral candidate has detailed LGBTQ rights platform

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NYC mayoral candidate and New York State Assembly member Zohran Mamdani (Screen capture: NBC News/YouTube)

Zohran Mamdani, the candidate for mayor of New York City who pulled a surprise victory in the primary contest last week, walked in the city’s Pride parade on Sunday.

The Democratic Socialist and New York State Assembly member published photos on social media with New York Attorney General Letitia James, telling followers it was “a joy to march in NYC Pride with the people’s champ” and to “see so many friends on this gorgeous day.”

“Happy Pride NYC,” he wrote, adding a rainbow emoji.

Mamdani’s platform includes a detailed plan for LGBTQ people who “across the United States are facing an increasingly hostile political environment.”

His campaign website explains: “New York City must be a refuge for LGBTQIA+ people, but private institutions in our own city have already started capitulating to Trump’s assault on trans rights.

“Meanwhile, the cost of living crisis confronting working class people across the city hits the LGBTQIA+ community particularly hard, with higher rates of unemployment and homelessness than the rest of the city.”

“The Mamdani administration will protect LGBTQIA+ New Yorkers by expanding and protecting gender-affirming care citywide, making NYC an LGBTQIA+ sanctuary city, and creating the Office of LGBTQIA+ Affairs.”

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