National
GOP att’y strongly defends DOMA in N.Y. widow’s lawsuit
Second Circuit hears arguments in Windsor case in NYC
Edith ‘Edie’ Windsor testifies in her Federal Court case against DOMA. (Washington Blade file photo by Michael Key)
NEW YORK CITY — The House Republican attorney defending the Defense of Marriage Act in court took particular issue on Thursday with an octogenarian lesbian’s case against by the law by suggesting the timing and location of her marriage makes challenge invalid.
Paul Clement, a former U.S. solicitor general under the Bush administration, claimed before a federal appeals court that Edith Windsor doesn’t have a case because she married in Canada and her spouse, Thea Spyer, died in 2009 — two years before New York legalized same-sex marriage.
“The critical question isn’t 2012, the critical question is 2009,” Clement said.
Clement added that the issue of whether the marriage is sufficient for a challenge against DOMA should be brought to certification before the New York Court of Appeals, the highest state court in New York.
James Esseks, director of the ACLU’s Lesbian Gay Bisexual and Transgender Project, told the Blade after the oral arguments that Clement was “grasping at straws” when making these claims.
“There’s clear law in New York that New York in 2004 recognized the marriages of same-sex marriage performed in Canada and in other states that allowed same-sex couples to marry,” Esseks said.
Esseks acknowledged that the high court in New York hasn’t affirmed those marriages, but said that three lower courts have recognized those marriages as legitimate as well as the governor and attorney general.
“There’s just no debate about it; It’s quite clear,” Esseks said. “I think we heard from the court today — it’s difficult to make any predictions — but based on what I heard from the court, I don’t think that that’s how the court’s going to decide this question. They’re not going to duck the constitutionality of the Defense of Marriage by saying we’re not sure whether she’s actually married or not.”
Edith Windsor (right) speaks with the ACLU’s James Esseks to reporters following oral arguments in the Second Circuit (Washington Blade photo by Chris Johnson)
A three-judge panel on the appellate court heard from three attorneys during oral arguments in the case, known as Windsor v. United States. The lawsuit was filed by the American Civil Liberties Union on behalf of Windsor, who was forced to pay $363,000 in estate taxes upon the death of her spouse because of Section 3 of DOMA, which prohibits federal recognition of same-sex marriage.
The panel consisted of Chief Judge Dennis Jacobs, who was appointed by President George H.W. Bush; Judge Chester Straub, who was appointed by former President Bill Clinton; and Judge Christopher Droney, who was appointed by President Obama.
It’s the second time a federal appellate court has considered the constitutionality of DOMA. In April, the U.S. First Circuit of Appeals heard oral arguments in the consolidated case of Gill v. Office of Personnel Management and Commonwealth of Massachusetts v. Department of Health & Human Services. On May 31, the appeals issued a decision against DOMA as result of that consideration.
Lawyers presented before the Second Circuit starkly different views on the the Defense of Marriage Act on Thursday before judges reviewing Windsor’s challenge to the anti-gay law, which was passed by Congress in 1996.
In addition to questioning whether Windsor has standing, Clement, who’s DOMA in court on behalf of the House Republican-led Bipartisan Legal Advisory Group, drew upon the cases of Baker v. Nelson, a 1972 Minnesota case seeking the legalization of same-sex marriage that the U.S. Supreme Court declined to hear for lack of substantive federal question.
Clement acknowledged the case is 40 years old and times may have changed since then, but added, “The only thing that hasn’t changed is this court’s obligation to follow Supreme Court precedent.”
Plaintiffs in the case had another view. Roberta Kaplan, partner at Paul, Weiss, Rifkind, Wharton & Garrison LLP, argued against DOMA on behalf of Windsor, saying the law be struck down because states can already decide on their own what decisions to make about who can marry within their borders.
“The problem supposedly solved by uniformity is a problem that our federalist principles have already dealt with,” Kaplan said.
Kaplan added the case against DOMA isn’t about any federal right to marry because even with the law in place, gay couples haven’t been discouraged from marrying across the country, nor have they been discouraged from adopting.
Acting U.S. Assistant Attorney General Stuart Delery, who’s gay, assisted in the litigation against by presenting arguments on behalf of the Obama administration, saying the court should strike down because of the long history of discrimination against LGBT people — including the criminalization of homosexuality and being barred from military service.
“Sexual orientation is a fundamental part of person’s identity that says nothing about a person’s ability to contribute to society,” Delery said.
Questions from judges hit on several topics, although the questioning from didn’t reveal much in terms of what how they’d rule in the case. Many inquiries were posed about the extent to which gays and lesbians enjoy political power within the U.S. government. Opponents of DOMA have argued the anti-gay law is unconstitutional because gays and lesbians lack political power, but BLAG contends the LGBT community has significant influence.
Asked by Jacobs about whether the test of political power is whether gays and lesbians have any power at all or whether power is diminished, Clement replied, “I think it’s the former, and I don’t think it’s not a overwhelmingly difficult test. … It’s a matter of whether you get the attention of lawmakers.”
Clement pointed to a friend-of-the-court brief signed by 145 House Democrats filed in the case on behalf of plaintiffs as evidence that the LGBT community has influence over the political process as he asserted the LGBT community should look to the legislative process to repeal DOMA, saying “This is an issue that could be left to the Democratic process.”
But Kaplan said the 30 marriage amendments that passed in state throughout the country are evidence that gay and lesbians are politically powerless, even though she emphasized these amendments have no bearing on the case at hand against DOMA.
The degree of scrutiny under which laws related to sexual orientation should face before the courts also came up the during the hearing. Judges asked whether they should overturn DOMA on the basis that such laws should be subjected to strict scrutiny, or more intermediate level of heightened scrutiny or be examined under a rational basis review. The level of scrutiny they apply could have implications on court cases related to sexual orientation.
In the event the court decided to rule against DOMA, Clement said the court asked the court not to apply heightened scrutiny, noting it would be the first appellate court to do so because the First Circuit Court of Appeals when struck down DOMA in May under rational basis review.
Kaplan said she was arguing for the higher level of review called strict scrutiny as opposed to the more intermediate heightened scrutiny because “being gay or lesbian is closer to being African-American than being a woman.” Laws related to gender have been subjected to heightened scrutiny, but laws related to race have been subjected to strict scrutiny.
But Delery didn’t articulate the same view, saying he was arguing against DOMA on the basis that it violated heightened scrutiny. While he acknowledged arguments could be made that DOMA fails rational basis, he wouldn’t commit to saying that should be struck down under that standard.
Another question for Delery, which came from Droney, was why the Justice Department had appealed the Windsor to the Second Circuit even though his side won at the district court level when U.S. District Judge Barbara Jones ruled against the law. Delery provided a explanation, prompting Droney to quip that the Justice Department must have a predilection for seeking appellate court rulings in all cases, eliciting laughter from those in attendance at the hearing.
Yet another question was raised by Jacobs on whether withholding benefits from gay couples with the intention of saving money for the federal government is a good enough constitutional reason to keep DOMA in place. Kaplan denied this assertion and said saving money isn’t sufficient rationale unless it’s coupled with another justification.
But Clement pounced on these remarks in the rebuttal allotted to him at the end of the oral arguments, saying preserving federal coffers are absolutely a good reason to preserve DOMA and Congress was “preserving the scope of the benefits programs the way they’ve always been.”
Clement also during his rebuttal asserted that Congress has acted in other areas besides gay and lesbian with regard to marriage. He noted lawmakers have acted to protect against fraud, and, going back to the 19th Century, require states to prohibit polygamy so territories like Utah could enter into the union.
Following the oral arguments, Windsor appeared outside the court building to speak with reporters. Windsor, who recently turned 83, said, “I look forward to the day when the federal government will recognize the marriages of all Americans, and I am hopeful that this day will come during my lifetime.”
Windsor further invoked the memory her deceased spouse — with whom she shared a life for 40 years — saying she believes she’s was present in the court in spirit and “would have been so proud to see how far we’ve come.”
Now that oral arguments are done, judges will confer to determine the steps they’ll take in the case and the process that will lead to them making a decision. There’s no set time for when they have to make a ruling; it could be a matter of days, months or a year.
The ACLU’s Esseks said he wasn’t in a position to predict in what way judges would rule as a result of what was said during the oral arguments.
“Lawyers never want to predict the outcomes,” Esseks said. “There are some arguments that you come out of and you’re like I’m willing to take a guess here. This argument didn’t give me clear sense one way or the other. I wouldn’t be surprised about a win and I wouldn’t be shocked about a loss either.”
Windsor’s attorneys and the Justice Department have asked the Supreme Court to take up the Windsor case for consideration. If the Supreme Court accepts the request, the high court would take up jurisdiction of the lawsuit and the Second Circuit proceedings would be halted.
Florida
DeSantis signs emergency bill that restores Fla. ADAP funding
Temporary funds to last through June 30
After the Florida Department of Health made huge cuts to the AIDS Drug Assistance Program in January, Republican Gov. Ron DeSantis has signed emergency legislation restoring HIV access to more than 12,000 Floridians.
Two months ago, as the Washington Blade reported, the Sunshine State cut the vast majority of those in ADAP by shifting the income levels required for eligibility — without following standard procedure when changing government policy outside of legislative or executive action.
The bill, signed by DeSantis on Tuesday, passed both chambers of the Florida Legislature unanimously and appropriates $30.9 million in emergency bridge funding through June 30, 2026. It restores Florida’s ADAP income eligibility to 400 percent of the Federal Poverty Level — the level it was prior to the January cuts. The legislation also requires the FDOH to submit detailed monthly financial reports to legislative leadership beginning April 1.
Under the old policy, eligibility would have been limited to those making no more than 130 percent of the federal poverty level, or $20,345 per year.
“For 10 weeks, 12,000 Floridians living with HIV did not know if they could fill their next prescription. Today, they can,” Esteban Wood, director of advocacy and legislative affairs at AIDS Healthcare Foundation, said in a statement.
The detailed reports now required to be sent to legislative leadership must include all federal revenues and expenditures, including manufacturer rebates; enrollment figures by county and insurance status; prescription utilization by drug class; and any projected funding shortfalls. This is the first time the Legislature has required this level of financial transparency from the program.
DeSantis signed the legislation one day after a Leon County Circuit Court judge denied AIDS Healthcare Foundation’s request for an injunction to block the significant changes the DeSantis administration is making to the program, which it claims faces a $120 million shortfall for calendar year 2026.
AIDS Healthcare Foundation, a national organization focused on protecting and expanding HIV healthcare access and prevention methods, filed a lawsuit over the change in eligibility, arguing the Florida Department of Health did not follow the laid out path for formally changing policy and was acting outside established procedures.
Typically, altering eligibility for a statewide program requires either legislative action or adherence to a multistep rule-making process, including: publishing a Notice of Proposed Rule; providing a statement of estimated regulatory costs; allowing public comment; holding hearings if requested; responding to challenges; and formally adopting the rule. According to AIDS Healthcare Foundation, none of these steps occurred.
The long-term structure of ADAP will be determined by the 2026–2027 fiscal year state budget, something that lawmakers have until June 30 to finish.
Federal Government
Markwayne Mullin confirmed as next DHS secretary
Okla. senator to succeed Kristi Noem
The U.S. Senate confirmed Markwayne Mullin as the next secretary of Homeland Security on Monday, as the agency continues to grapple with what lawmakers have described as a “never-ending” funding standoff, with Democrats attempting to withhold funding from one of the nation’s largest and most costly agencies.
Mullin — a Republican senator from Oklahoma, former mixed martial arts fighter, and plumbing business owner — was confirmed in a 54–45 vote. Two Democrats — U.S. Sens. John Fetterman (D-Pa.) and Martin Heinrich (D-N.M.) — sided with Republicans in supporting his confirmation.
The new agency head is expected to follow the policy direction set by President Donald Trump, emphasizing stricter immigration enforcement. This includes proposals to support immigration agents at polling sites and to cut funding to so-called “sanctuary cities.”
Mullin replaces Kristi Noem, who was fired earlier this month following a widely scrutinized 2-day congressional hearing on Capitol Hill.
During the hearing, Noem faced intense questioning over her response to several crises, including the fatal shooting of two American citizens in Minneapolis by U.S. Immigration and Customs Enforcement agents, a $220 million border security advertising campaign that featured her on horseback near Mount Rushmore amid one of the largest federal workforce reductions in U.S. history, and the federal response to major natural disasters such as the July 2025 Texas floods and Hurricane Helene in 2024.
Noem had previously drawn criticism for a series of policy decisions in South Dakota that broadly focused on restricting the rights of LGBTQ individuals. In 2023, she signed House Bill 1080, banning gender-affirming medical care for transgender minors. She also signed legislation and executive orders restricting trans athletes’ participation in women’s sports, as well as the state’s “Religious Freedom Restoration Act,” which critics argued enabled discrimination against LGBTQ individuals. Additionally, the state canceled contracts related to LGBTQ support services — including suicide prevention and health care navigation programs‚ and later agreed to a $300,000 settlement with trans advocacy group, The Transformation Project.
Despite her removal from DHS, Noem will remain in the Trump-Vance administration as a special envoy for the “Shield of the Americas,” an initiative aimed at promoting U.S. influence in the Western Hemisphere, including efforts to counter cartel networks, reduce Chinese influence, and manage migration.
The new head of DHS has served in Congress since 2013, in both houses of the federal legislature. While in the Senate and a member of the Health, Education, Labor, and Pensions (HELP) Committee, Mullin has been a vocal critic of policies aimed at expanding LGBTQ inclusion. He led a group of lawmakers in urging the Administration for Community Living to reverse a rule requiring states to prioritize Older Americans Act services based on sexual orientation and gender identity, arguing the policy could have unintended consequences.
Mullin also makes history as the first Native American — and a citizen of the Cherokee Nation — to lead the Department of Homeland Security. He was also among the 147 Republicans who voted to overturn the 2020 presidential election results despite no evidence of widespread fraud, and was present in the U.S. House of Representatives chamber on Jan. 6.
Federal Government
Protesters say SAVE Act targets voters, transgender youth
Bill described as ‘Jim Crow 2.0’
Members of Congress, advocates, and people from across the country gathered outside the U.S. Capitol on Tuesday to protest proposed federal legislation that voting rights activists have deemed “Jim Crow 2.0.”
The Safeguard American Voter Eligibility (SAVE) Act would amend the National Voter Registration Act of 1993 to require in-person proof of citizenship for anyone seeking to vote in U.S. elections.
President Donald Trump has also pushed for the proposed legislation to include a section that would ban gender-affirming medical care for transgender minors, even with parental consent, and prohibit trans people from participating in school or professional sports consistent with their gender identity rather than their sex assigned at birth.
In addition to changing voter registration requirements, the bill would limit acceptable forms of identification to documents such as a birth certificate or passport — records that the Brennan Center for Justice estimates more than 21 million Americans do not have — effectively restricting access to the ballot. It would also ban online voter registration, DMV voter registration efforts, and mail-in voter registration.
A 2021 investigation by the Associated Press found that fewer than 475 people voted illegally or improperly, a tiny fraction of the estimated 160 million Americans who voted in the 2020 election.
Senate Minority Leader Chuck Schumer (D-N.Y.) spoke at the event.
“It will kick millions of American citizens off the rolls. And they don’t even require you to be told,” the highest-ranking Democrat in the Senate told protesters and reporters outside the Capitol. “If this law passes — and it won’t — you’re gonna show up in November … and they’ll say… sorry, you’re no longer on the voting rolls.”
He, like many other speakers, emphasized the bill in the context of American history, pointing to what he described as its racist roots and its impact on Black and brown Americans.
“I have called this act, over and over again, Jim Crow 2.0 … because they know it’s the truth.”
U.S. Sen. Alex Padilla (D-Calif.) was one of the lawmakers leading opposition to the legislation and spoke at the rally.
“It’s not just voting rights that are on the line — our democracy is on the line,” the California lawmaker said. “It’s not a voter I.D. bill. It’s a bait and switch bill.”
He added historical context, noting the significance of voting rights legislation passed more than 60 years ago. In 1965, Alabama civil rights activists marched to protest barriers to voter registration. Alabama state troopers violently attacked peaceful demonstrators at the Edmund Pettus Bridge in Selma, using tear gas, clubs, and whips against more than 500 — mostly Black — protesters.
“61 years ago — not to the day — but this week, President Lyndon Johnson came to the Capitol and addressed a joint session of Congress in the wake of Bloody Sunday and pushed Congress to pass the Voting Rights Act,” Padilla said. “61 years later, Donald Trump and this Republican majority wants to take us backwards. We’re not gonna let that happen.”
U.S. Sen. Ben Ray Luján (D-N.M.) also spoke, emphasizing that he views the effort as a Republican-led and Trump-backed attempt to restrict voting access, particularly among Black, brown, and predominantly Democratic communities.
“President Trump told Republicans when they were meeting behind closed doors that ‘The SAVE Act will guarantee Republicans win the midterms and ensure they do not lose an election for 50 years,’” Luján said. “The first time I think Donald Trump’s been honest … This voter suppression bill is only that. Taking away vote by mail? I hope my Republican colleagues from states that voted for Donald Trump or where vote by mail is popular have the courage and the backbone to stand up and say no to this nonsense, because their constituents are going to push back.”
U.S. Sen. Lisa Blunt Rochester (D-Del.) also spoke.
“Our Republican colleagues have already cut Medicaid, Medicare, people don’t know how they’re gonna be able to afford energy,” she said, providing context for the broader political moment. “We’re in the middle of a war that they can’t even get straight while we’re in it and don’t have a way to get out of it. And we are now faced with defending our democracy?”
She then showed the crowd something that she said has been with her throughout her political journey in Washington.
“I brought with me something that I carried on the day that I was sworn into the House of Representatives when I was elected in 2016, and I carried it with me on the day that I was sworn in as United States senator. And I also carried it with me when I was trapped up in the gallery on Jan. 6 and all I could think to do was pray … This document allowed my great great great grandfather, who had been enslaved in Georgia, to have the right to vote. We took this and turned it into a scarf. It is the returns of qualified voters and reconstruction code from 1867. This is my proof of what we’ve been through. This is also our inspiration.”
“I got to travel between the Edmund Pettus Bridge two times. And even as I thought about this moment, I recognized that while we wish we weren’t in it, while we don’t know why we’re in it, I do know we were made for it … So I came today to tell you that, um, just like the leader said, that he calls it Jim Crow 2.0. I call it Jim Crow 2.NO.”
Kelley Robinson, president of the Human Rights Campaign, the largest LGBTQ advocacy organization in the U.S., also spoke, highlighting the impact of the bill’s proposed provisions affecting trans people.
“This bill is not about saving America. This bill is about stealing an election. This bill is about suppressing voters,” Robinson said. “This bill not only tries to disenfranchise voters that deserve their right to vote, it also tries to criminalize trans kids and their families … It tries to criminalize doctors providing medically necessary care for our trans youth.”
The SAVE Act passed the U.S. House of Representatives on Feb. 11 but has not yet been considered in the U.S. Senate.
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