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Anti-gay groups file Prop 8, DOMA briefs

Attorneys cite inability of gay couples to procreate

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Supreme Court, gay news, Washington Blade
Supreme Court, gay news, Washington Blade

Anti-gay groups this week filed brief before the Supreme Court (Washington Blade file photo by Michael Key)

Anti-gay forces drew upon reasoning they’ve used the past — such as the inability of gay parents to procreate — in legal briefs filed before the Supreme Court this week in favor of the Defense of Marriage Act and California’s Proposition 8.

In two separate briefs filed on Tuesday, attorneys representing ProtectMarriage.com and the House Republican-led Bipartisan Legal Advisory Group made their case for why the Supreme Court should uphold the anti-gay measures — despite multiple rulings from lower courts that have found DOMA and Prop 8 unconstitutional.

In the 65-page brief filed in the Prop 8 case, they urge the Supreme Court justices to uphold California’s constitutional ban on same-sex marriage, approved by California voters in 2008, because, among other reasons, the measure helps ensure children are raised by their biological parents.

“In particular, an animating purpose of marriage is to increase the likelihood that children will be born and raised in stable and enduring family units by their own mothers and fathers,” the brief states. “Because relationships between persons of the same sex do not have the capacity to produce children, they do not implicate this interest in responsible procreation and childrearing in the same way.”

Attorneys who signed the brief include Andrew Pugno, the lead counsel for ProtectMarriage.com; Charles Cooper, a private attorney representing the group as well as lawyers from the anti-gay Alliance Defending Freedom.

In the brief, these lawyers maintain Prop 8 doesn’t violate the Equal Protection Clause under the U.S. Constitution for four major reasons: 1) Prop 8 advances an interest in procreation and child-rearing; 2) Prop 8 serves an interest in “proceeding with caution” before redefining a social institution; 3) Prop 8 restores democratic authority over a vital principle and 4) Prop 8 does not “dishonor” gay people.

Additionally, the brief answers the earlier posted question from the Supreme Court over whether these lawyers have standing to defend Prop 8 in lieu of California officials — Gov. Jerry Brown and Attorney General Kamala Harris — who have declined to defend the law in court.

Attorneys assert they have standing because Supreme Court precedent has established that state law determines who’s authorized to defend the constitutionality of a law in that state. The brief notes the California Supreme Court determined that ProtectMarriage.com has authority to defend Prop 8.

Anti-gay language is also found in the 60-page brief in the DOMA case submitted by BLAG, a five-member panel of U.S. House members that voted 3-2 along party lines to defend the 1996 law in court. The brief makes similar arguments that the government has invested in prohibiting same-sex marriage to encourage procreation.

“Only opposite-sex relationships have the tendency to produce children without such advance planning (indeed, especially without advance planning,)” the brief states. “Thus, the traditional definition of marriage remains society’s rational response to this unique tendency of opposite-sex relationships. And in light of that understanding of marriage, it is perfectly rational not to define as marriage, or extend the benefits of marriage to, other relationships that, whatever their other similarities, simply do not have the same tendency to produce unplanned and potentially unwanted children.”

Attorneys who signed this brief include House General Counsel Kerry Kircher and private attorney Paul Clement, a former U.S. solicitor general under the Bush administration who was hired for $520 an hour at a cost cap that has now reached $3 million to defend DOMA in court.

BLAG offers five major arguments for why the Supreme Court should uphold DOMA: 1) DOMA preserves each sovereign’s right to define marriage for itself; 2) DOMA ensures uniformity in eligibility for federal benefits; 3) DOMA preserves past legislative judgments and and conserves fiscal resources; 4) Congress proceeded with caution when enacting the law and 5) the federal government can retain marriage as one man, one woman for the same reason a state can.

The brief also goes at length to dispute the idea that laws affecting gay people should be subjected to heightened scrutiny, or a greater assumption they’re unconstitutional, because they’re a suspect class. The view that DOMA should be subjected to this standard is held by the U.S. Second Circuit Court of Appeals and the Obama administration.

As part of this argument, the brief denies gays are politically powerless class, citing the LGBT community’s influence on the Democratic Party and Obama, who has come out for marriage equality.

“Perhaps most critically, gays and lesbians have substantial political power, and that power is growing,” the brief states. “There is absolutely no reason to think that gays and lesbians are shut out of the political process to a degree that would justify judicial intervention on an issue as divisive and fast-moving as same-sex marriage.”

Other arguments to dispute classifying gays and lesbians as part of a suspect are sexual orientation isn’t an immutable characteristic and the histories of discrimination is different for race, ethnicity, gender and legitimacy — others groups that have been designated as suspect classes.

Evan Wolfson, president of the LGBT advocacy group Freedom to Marry, said he believes the Supreme Court would be unpersuaded by the arguments in these briefs because they’re the same earlier arguments that lower courts rejected when striking down Prop 8 and DOMA.

“Ten federal rulings — from judges appointed by presidents including Reagan, both Bushes, and even Nixon — have found these alleged justifications for discriminating in marriage insufficient to meet the constitution’s command of equal protection under the law, as have numerous state judges,” Wolfson said. “The fact that all they have to offer the Supreme Court at this late stage in the day is such old wine in new bottles should help persuade the justices that neither DOMA nor Prop 8 serves any sufficient, legitimate purpose and that both discriminatory measures must fall.”

The next deadline for briefs in these cases is Tuesday, when parties supporting the anti-gay side must file their friend-of-the-court briefs. Oral arguments before the Supreme Court in Prop 8 case are set for March 26 and in the DOMA case are set for March 27. The Supreme Court must deliver rulings on the constitutionality of Prop 8 and DOMA before the end of its term in June.

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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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