National
End of DOMA raises concerns about lingering inequities
Social Security, military benefits could remain problematic after court decision
Issues for married same-sex couples may remain even if the Supreme Court strikes down DOMA. (Washington Blade photo by Michael Key)
While many same-sex couples throughout the country have high hopes that a U.S. Supreme Court ruling striking down the Defense of Marriage Act would mean their marriages would finally have legal status in the eyes of the federal government, certain problems may persist even if the court kills the law.
Depending on the scope of a Supreme Court ruling against Section 3 of DOMA, areas of the law in which couples may continue to face challenges include Social Security benefits — especially if a couple moves to a state that doesn’t recognize their marriages — as well as spousal benefits when one party of the couple is a member of the military, although the immigration issue preventing bi-national couples from staying together in the United States is expected to cease immediately.
Mary Bonauto, civil rights director for Gay & Lesbian Advocates & Defenders, said prior to oral arguments one issue in a post-DOMA world is Social Security benefits if a same-sex couple marries in one state and moves to another where their union isn’t recognized. The survivor benefits given to spouses upon the death of their loved ones is among the more than 1,000 federal benefits withheld from married gay couples under DOMA.
“Say you are married in Massachusetts … and you apply for Social Security in Massachusetts, there would be no doubt with DOMA gone, that your spouse is a spouse for Social Security purposes,” Bonauto said. “However, should you relocate to Florida and apply for Social Security benefits there, it’s more of a problem because Social Security law is going to look at the validity of the marriage at the time you apply for benefits, so your state of residence at the time you apply really matters.”
Bonauto added the aftermath of a ruling striking down DOMA may create “a patchwork” that in some situations would make same-sex marriage dependent on their state validity. Ironing out this patchwork, she said, would take either more litigation, legislation or advocacy within the administration to make changes.
“The overwhelming majority of federal programs don’t specify what state law applies, so it may just be for some situations, a matter of some guidance coming for the agencies that say whether you’re married for a particular benefit,” Bonauto added. “That’s a very practical nuts-and-bolts thing that, you know, we don’t have the luxury of worrying about right now because DOMA is still on the books.”
Susan Silber, a lesbian Takoma Park-based lawyer who specializes in family law for gay couples, said a ruling could affect gay couples differently if the court strikes down DOMA but leaves the constitutional right to marry in the case against California’s Proposition 8 an open question.
“Let’s say a couple was married for 30 years, but because they couldn’t get married until two years ago, it would look technically like they’ve only been married for two years,” Silber said. “But when they’re now dividing up their property, will courts say, ‘Oh you’ve only been married two years, there’s not a lot of marital property to buy?’ or will the court recognize that longer-term relationships deserve some recognition and do some kind of equity based on the non-technical part.”
The Human Rights Campaign didn’t respond to requests for comment on lingering issues for married gay couples.
But the general agreement is that the Respect for Marriage Act, legislation designed to repeal DOMA, would address lingering problems regarding state validity because of the “certainty clause” in the bill. Under that provision, gay couples that legally marry in one jurisdiction would be assured federal benefits even if they move to another state that doesn’t recognize same-sex marriage. The Respect for Marriage Act has yet to be introduced in the 113th Congress.
Sen. Tammy Baldwin (D-Wis.) said during a Blade interview on Monday that she thinks the Respect for Marriage Act could see additional co-sponsors in the wake of so many legislators coming out for marriage equality, but certain bills may have to be rewritten in the aftermath of a court ruling striking DOMA before going forward.
“I think that trend is a very positive one, and, yet, once the Supreme Court in June announces its decision in these two cases, we’re going to have to read those decisions very carefully, understand their reach, impact and then go about the task of looking at their impact on pending legislation,” Baldwin said. “So it may mean that certain things need to be re-written. And that will be a joyous task if we made progress, but we still have a little bit more to go.”
Jon Davidson, legal director or Lambda Legal, was optimistic adjustments could be made, saying the federal government has had to determine previously whether to recognize certain marriages and disputed any notion advanced by DOMA proponents that overturning the law would create a legal mess.
“It’s very important that it be understood that that argument is baseless, as this issue has always existed without creating undue burdens for the federal government,” Davidson said. “For example, some states allow first cousins, or uncles and nieces and aunts and nephews, to marry, and some other states will not allow couples that closely related to marry and will not recognize marriages like those entered in other states as valid for purposes of their own state law.”
Another piece of legislation may be necessary to address the benefits issue for gay service members with same-sex spouses. Sections of U.S. code governing benefits for U.S. service members define marriage as one man, one woman independent of DOMA. Titles 10, 32 and 37 are controlled by DOMA in terms of their definition of marriage, but Title 38, which addresses veterans benefits, defines “spouse” and “surviving spouse” in similar terms and restricts the definitions of persons to the “opposite sex.”
Sen. Jeanne Shaheen (D-N.H.), who sponsors legislation known as Charlie Morgan Act that would afford benefits to gay troops, said in a statement to the Blade that she’s prepared to push forward with the bill in the event that the Supreme Court ruling doesn’t address this issue.
“The Charlie Morgan Act would amend the definition of ‘spouse’ in the federal code in four areas and in turn grant same-sex military couples many benefits that they’ve rightfully earned,” Shaheen said. “Depending on how the Supreme Court rules on DOMA, legislation like this could still be necessary to ensure fairness and equality for all our men and women serving in uniform. Regardless of how the Supreme Court rules, I will continue to work with my colleagues on behalf of our LGBT servicemen and women, and their families, because no one should be denied benefits due to their sexual orientation.”
There may be other difficulties as well. A blog posting Monday from National Public Radio’s Michelle Andrews speculates that married gay couples may have trouble covering their families with company insurance, although many businesses are pre-emptively addressing the issue.
“If a same-sex couple both lives and works in the District there may not be insurance difficulties,” Andrews writes. “But what if one of them works in Virginia, where same-sex marriage isn’t recognized? If a Virginia-based employer doesn’t voluntarily provide benefits to same-sex spouses, the employee might not be able to insure a spouse even though they’re legally married in the state where they live.”
But one issue that’s expected to immediately go away in the inability of gay Americans to sponsor their spouses for residency in the United States via a marriage-based green card application. Each time when asked to address the issue, the Obama administration has cited Section 3 of DOMA — and only Section 3 of DOMA — as the reason why sponsorship of a foreign spouse is unavailable for gay couples.
Lavi Soloway, a gay immigration attorney and founder of The DOMA Project, explained during a conference call last week that gay Americans should be able to sponsor their same-sex couples for residency in the United States immediately after the law is struck down.
“The moment the Defense of Marriage is struck down, green card petitions filed by same-sex married couples can be approved,” Soloway said. “There’s no other barrier; we’ve established that by filing 70 green card petitions over the last three years, we’ve established that with 40 appeals to the Board of Immigration Appeals, we’ve established that with 10 remanded cases from the Board of Immigration Appeals. The government’s position is that the law prevents same-sex couples from access only because of Section 3 of the Defense of Marriage Act. I’ve no expectation that the Obama administration will have any different opinion the day after DOMA is struck down — if that happens.”
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.
Idaho
Idaho advances bill to restrict bathroom access for transgender residents
HB 752 passed in state House of Representatives on Monday
The Idaho House of Representatives passed House Bill 752 on Monday, a measure that would make it a crime for a person to use a bathroom other than the one designated for their “biological sex.”
The story was first reported by the Idaho Capitol Sun after the bill cleared the House.
House Bill 752 would make it a criminal offense — either a misdemeanor or a felony, depending on the number of prior offenses — for individuals who “knowingly and willfully” enter a bathroom or changing room designated for the opposite sex.
The bill would apply to public buildings, including government-owned spaces, and places of “public accommodation,” a category that includes private businesses.
According to the bill’s text, it would “prohibit a person from entering a restroom or changing room designated for the opposite sex; provide a penalty; provide exceptions; define terms; and declare an emergency and provide an effective date.”
A first offense would be a misdemeanor, punishable by up to one year in prison. A second or subsequent offense within five years would be a felony, punishable by up to five years in prison.
The bill passed in a 54–15 vote on Monday. Six Republicans broke with their party’s majority to join nine Democrats in opposing the measure.
The bill’s sponsor, state Rep. Cornel Rasor, a Republican from Sagle near the Washington-Idaho border, told House lawmakers that the legislation is intended to protect women and girls.
“It prevents discomfort and voyeurism escalation and assaults, while preserving single-user options and narrow exceptions so no one is denied access for emergency aid,” Rasor said.
State Rep. Chris Mathias, a Democrat from Boise, disagreed, arguing that the legislation would unfairly target transgender Idahoans.
“The truth of the matter is — and I know a lot of people don’t want to say it — but forcing people who don’t look like the sex they were assigned at birth, or transgender folks, to use other people’s bathrooms is going to put a lot of people in danger,” Mathias said.
The Idaho American Civil Liberties Union made a statement about the bill following its passage.
“Idaho lawmakers continue pushing these harmful, invasive bathroom laws, yet cannot present credible evidence that transgender people using gender-aligned bathrooms threaten public safety,” the Idaho ACLU said. “The bill does nothing to address real criminal acts, such as sexual assault or voyeurism, and disregards concerns from law enforcement about the burden enforcement would place on local resources.”
In addition to human rights advocates, who have spoken out against similar bills advancing in state legislatures across the country, Idaho law enforcement groups have also opposed the measure. They argue that the way the legislation is written would “pose significant practical enforcement challenges,” noting that officers are tasked with maintaining public safety — not conducting gender checks or policing bathroom access.
During a committee hearing last week, law enforcement representatives and several trans Idahoans testified that the bill would make many residents less safe.
“Officers responding to a complaint would be placed in the difficult position of determining an individual’s biological sex in order to enforce the statute,” Idaho Fraternal Order of Police President Bryan Lovell wrote. “In many circumstances, there is no clear or reasonable way for officers to make that determination without engaging in questioning or investigative actions that could be viewed as invasive and inappropriate.”
The Idaho Sheriffs’ Association requested that lawmakers amend the bill to require that individuals be given an opportunity to leave a bathroom immediately before facing potential prosecution.
The bill now heads to the Idaho Senate for consideration. To become law, it must pass both chambers and avoid a veto from the governor.
A separate bathroom bill, House Bill 607, which would be enforced through civil lawsuits, passed the House last month but has not yet received a committee hearing in the Senate.
State Department
Report: US to withhold HIV aid to Zambia unless mineral access expanded
New York Times obtained Secretary of State Marco Rubio memo
The State Department is reportedly considering withholding assistance for Zambians with HIV unless the country’s government allows the U.S. to access more of its minerals.
The New York Times on Monday reported Secretary of State Marco Rubio in a memo to State Department’s Bureau of African Affairs staffers wrote the U.S. “will only secure our priorities by demonstrating willingness to publicly take support away from Zambia on a massive scale.” The newspaper said it obtained a copy of the letter.
Zambia is a country in southern Africa that borders Tanzania, Malawi, Mozambique, Zimbabwe, Botswana, Namibia, Angola, and the Democratic Republic of Congo.
The Times notes upwards of 1.3 million Zambians receive daily HIV medications through PEPFAR. The newspaper reported Rubio in his memo said the Trump-Vance administration could “significantly cut assistance” as soon as May.
“Reports of (the) State Department withholding lifesaving HIV treatment in return for mining concessions in Zambia does not make us safer, stronger, or more prosperous,” said U.S. Sen. Jeanne Shaheen (D-N.H.), the ranking member of the Senate Foreign Relations Committee, on Tuesday. “Monetizing innocent people’s lives further undermines U.S. global leadership and is just plain wrong.”
The Washington Blade has reached out to the State Department for comment.
Zambia received breakthrough HIV prevention drug through PEPFAR
Rubio on Jan. 28, 2025, issued a waiver that allowed PEPFAR and other “life-saving humanitarian assistance” programs to continue to operate during a freeze on nearly all U.S. foreign aid spending. HIV/AIDS service providers around the world with whom the Blade has spoken say PEPFAR cuts and the loss of funding from the U.S. Agency for International Development, which officially closed on July 1, 2025, has severely impacted their work.
The State Department last September announced PEPFAR will distribute lenacapavir in countries with high prevalence rates. Zambia two months later received the first doses of the breakthrough HIV prevention drug.
Kenya and Uganda are among the African countries have signed health agreements with the U.S. since the Trump-Vance administration took office.
The Times notes the countries that signed these agreements pledged to increase health spending. The Blade last month reported LGBTQ rights groups have questioned whether these agreements will lead to further exclusion and government-sanctioned discrimination based on sexual orientation and gender identity.
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