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Once again, marriage equality inches closer to Supreme Court

At least four appeals courts set to consider issue this spring

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David Boies, Ted Olson, gay marriage, same-sex marriage, marriage equality, gay news, Washington Blade
David Boies, Ted Olson, gay marriage, same-sex marriage, marriage equality, gay news, Washington Blade

David Boies and Ted Olson are leading the VIrginia lawsuit heading to the U.S. Supreme Court (Washington Blade photo by Michael Key).

Not even a year has passed since the U.S. Supreme Court issued its landmark decisions against the Defense of Marriage Act and California’s Proposition 8, but a number of cases are already lining up that would enable the high court to make a nationwide ruling in favor of marriage equality.

At least four appellate courts are set to consider the issue this spring amid five district court decisions in favor of marriage equality in Utah, Oklahoma, Ohio, Kentucky and Virginia. Once the appellate courts make their decisions, they will likely be appealed this year to the Supreme Court, which would give justices the opportunity to make a final decision in 2015.

Although the Ohio ruling was limited to death certificates for married gay couples and the Kentucky ruling only provided recognition of out-of-state same-sex marriages, each of the rulings handed down since the DOMA decision were in favor of marriage equality. And in each ruling, justices invoked the decision against DOMA as part of their reasoning for determining state constitutional amendments against same-sex marriage violated the Constitution.

U.S. District Judge John Heyburn, an appointee of former President George H.W. Bush, noted last week in his decision that the words of the DOMA decision by U.S. Associate Justice Anthony Kennedy compels him to rule against Kentucky’s marriage laws.

“Ultimately, the focus of the Court’s attention must be upon Justice Kennedy’s majority opinion in Windsor,” Heyburn said. “While Justice Kennedy did not address our specific issue, he did address many others closely related. His reasoning about the legitimacy of laws excluding recognition of same-sex marriages is instructive. For the reasons that follow, the Court concludes that Kentucky’s laws are unconstitutional.”

Ted Olson, the Republican half of the legal duo arguing against Virginia’s ban on same-sex marriage, during a conference call Friday noted the consistency with which district courts have struck down anti-gay marriage amendments in the aftermath of the DOMA decision.

“Federal courts are consistently, regularly now, affirming the right of gay and lesbian citizens to be a part of the population of the rest of our citizens with equal rights to the fundamental right of marriage,” Olson said.

The cases against same-sex marriage bans in Utah and Oklahoma are the furthest advanced of all the lawsuits seeking marriage equality. They’re before the U.S. Tenth Circuit Court of Appeals in Denver, where oral arguments are scheduled in Utah case for April 10 and the Oklahoma case for April 17. The National Center for Lesbian Rights has joined the law firm of Magleby & Greenwood, P.C., as counsel in the Utah case.

Just behind that lawsuit is the case seeking marriage equality in Nevada filed by Lambda Legal known as Sevcik v. Sandoval. After Nevada Attorney General Catherine Cortez Masto declared her intent to withdraw her brief in favor of the marriage ban, the U.S. Ninth Circuit Court of Appeals last week acceded to her request and pledged to proceed with the lawsuit on an expedited basis, although no date has been set for oral arguments.

The Ohio case has already been appealed to the U.S. Sixth Circuit Court of Appeals, which is also the destination of the Kentucky lawsuit. These cases are also in their early stages at the appellate level, and schedule hasn’t been determined.

And the court ruling against Virginia’s ban on same-sex marriage, the latest to come down from a federal court, will be headed to the U.S. Fourth Circuit of Appeals. Although Virginia Attorney General Mark Herring isn’t defending the ban against same-sex marriage in court, Olson said he sees no standing issue in the case and because county clerks are participating in the lawsuit, the state continues to enforce the law.

But according to Lambda Legal, a total of 52 marriage equality lawsuits are pending in 27 states, and any of the cases at district court level could soon join those at the appellate level.

A judge will likely render a decision soon in the other lawsuit seeking marriage equality in Virginia, which was filed by the American Civil Liberties Union and Lambda Legal. A judge in Michigan has set a trial for that state’s constitutional ban on same-sex marriage on Feb. 25, just as a trial has been set in the Pennsylvania case for June 9.

Given the sheer number of cases making their way through the courts, David Boies, the Democratic half of the legal duo in the Virginia lawsuit, said the Supreme Court would have no shortage of cases from which to choose by the time it begins its term in the fall.

“I think they will all get to the Supreme Court at about the same time,” Boies said. “The Supreme Court can decide to take them all and consolidate them, the Supreme Court can take one or more of the cases, but not all of then. I think that is something that will be determined by the Supreme Court, and, to some extent, by the timing of the court of appeals decision.”

It’s technically possible for the Supreme Court to take up this issue this term once those cases are appealed, which would mean a nationwide ruling by June.

Jon Davidson, legal director for Lambda Legal, nonetheless said it “seems extraordinarily unlikely” the litigation would play out in that way.

“Even if an appellate decision in one of these cases were issued by May, a certiorari petition likely would not get filed until the summer, and the Supreme Court wouldn’t act on that until October,” Davidson said. “It does not have to grant cert on the first, or, even any of these cases. Even if it does, there likely wouldn’t be a decision until the spring of 2015.”

One issue to watch as these cases make their way up is whether courts apply heightened scrutiny, or a greater assumption a law is unconstitutional, to their decisions on the marriage bans. Such a determination would designate gay people with a “quasi-suspect classification” and establish precedent making other laws related to sexual orientation less likely to stand up in court.

When it ruled on the DOMA case last year, the U.S. Second Circuit Court of Appeals already set a precedent for heightened scrutiny for laws related to sexual orientation, but every state in that jurisdiction — New York, Vermont and Connecticut — already has marriage equality.

More recently, the U.S. Ninth Circuit Court of Appeals applied heightened scrutiny in its decision for Smith Kline v. Abbott Laboratories, which determined that jurors cannot be excluded from a trial because of sexual orientation.

Because of the application of heightened scrutiny in that case, the Nevada attorney general stopped defending her state’s marriage ban. Further, expectations are high that courts in Oregon and Arizona, which lie within that jurisdiction, will strike down bans in those states.

It was speculated the Supreme Court took up the Edith Windsor’s challenge to DOMA as opposed to others because the Second Circuit applied heightened scrutiny on that decision, although the high court never explicitly addressed the issue of heightened scrutiny in its ultimate decision. Eyes will be on the Supreme Court to see if it will take up the Ninth Circuit marriage case among others to resolve the issue of heightened scrutiny in the next go-around with marriage equality.

Doug NeJaime, who’s gay and a law professor at University of California, Irvine, nonetheless said he doesn’t think the Supreme Court has interest in resolving this issue for laws related to sexual orientation.

“The Supreme Court in Windsor didn’t explicitly reach this question, even though the lower court had based its decision on heightened scrutiny,” NeJaime said. “Given that, it doesn’t seem the Court is particularly interested in resolving that question, and I don’t think it will do much to persuade the court to take or not take a case.”

Another question is the extent to which the Obama administration will participate in the pending lawsuits. The Justice Department helped litigate against DOMA as party in the lawsuit and assisted in the lawsuit against Prop 8 as a friend of the court, although in the latter case the administration filed a brief and took part in oral arguments only when the litigation reached the Supreme Court.

A number of LGBT advocates have said they’d welcome participation from the Obama administration in the marriage equality cases without making a full-throated call for assistance. On Friday, White House Press Secretary Jay Carney wouldn’t make a prediction on whether the administration will take part and deferred comment to the Justice Department, which hasn’t responded to the Blade’s request to comment.

The opportunity for the Justice Department to file a brief in the Nevada case before the Ninth Circuit has already passed, but another opportunity will come soon. The deadline for filing a friend-of-the-court brief before the Tenth Circuit in the Utah case is March 4.

Erik Olvera, spokesperson for the National Center for Lesbian Rights, echoed the sense of other advocates on the issue, saying a friend-of-the-court brief from the Obama administration would be “welcome” in the Utah case.

“We always welcome the Obama administration to express its views in cases concerning civil rights protected by the U.S. Constitution,” Olvera said.

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India

Iran war causes condom shortage in India

Trade disruptions have strained petrochemicals, lubricant supplies

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(Photo by nito/Bigstock)

About 80 days into the U.S.-Iran war, while much of the world struggles with oil supplies, India is confronting a different crisis: a widening condom shortage. Health activists warn the supply disruption could worsen HIV/AIDS risks in the world’s most populous country.

Disruptions in maritime trade through the Strait of Hormuz have strained supplies of petrochemicals and industrial lubricants used in condom manufacturing. The crisis has increased production costs across the sector and pushed retail prices sharply higher.

India’s condom manufacturing industry is valued at nearly $1 billion

Production depends heavily on silicone oil and ammonia. Silicone oil, a key lubricant used in manufacturing, is in short supply. Ammonia, which stabilizes raw latex, is expected to see price increases of 40-50 percent. Rising packaging costs have added further pressure. Some manufacturers and retailers have reported condom prices increasing by as much as 50 percent.

India is home to an estimated 2.5 million people living with HIV, the world’s second-largest population of HIV-positive people, according to a 2024 report. The Health Ministry’s India HIV Estimation 2025 technical report said 5.4 percent of HIV cases in 2024-2025 were linked to transmission between men who have sex with men.

In 2024, India recorded an estimated 64,470 new HIV infections and 32,160 AIDS-related deaths nationwide. The figures marked declines of 48.69 percent and 81.42 percent, respectively, compared with 2010.

Ankit Bhuptani, an LGBTQ activist in India, told the Washington Blade that the country has made significant progress in reducing HIV infections over the past two decades. But, he said, that progress depended heavily on affordable condoms, targeted outreach programs and on-the-ground work by NGOs serving MSM and transgender people.

“Pull one thread and the whole thing loosens. What worries me about this particular shortage is that it arrives at exactly the moment when India’s LGBTQ community was beginning to access healthcare more openly after the Section 377 reading down,” said Bhuptani. “Young queer Indians in tier-two cities were just starting to trust government health systems enough to engage with them. A price spike that prices them out, or a shortage that sends them to substandard alternatives, could set that trust back by years.”

The Indian Supreme Court in 2018 struck down Section 377, a colonial-era law that criminalized consensual same-sex sexual relations.

In March, the Commerce and Industry Ministry acknowledged the difficulties faced by Indian exporters due to disruptions caused by the war in West Asia and launched a roughly $51.5 million Resilience and Logistics Intervention for Export Facilitation, or RELIEF, program. It provides credit insurance support for exporters whose shipments have been stranded because of the conflict.

“Price elasticity in sexual health products is brutal. When a condom pack goes from 20 rupees to 40, usage drops. It’s that simple,” said Bhuptani. “And when usage drops in populations with higher baseline HIV exposure, you don’t see the consequences for two or three years. Then the numbers arrive and everyone acts surprised.”

The situation has been further aggravated by the structure of India’s condom market, which operates on a high-volume, low-margin model designed to keep products affordable for a population of more than 1.4 billion people. Industry analysts say that model is now under growing pressure from rising raw material and shipping costs.

Reports in Indian media said supply constraints and price volatility involving PVC foil, aluminium foil, and packaging materials have disrupted production and complicated order fulfilment across parts of the condom manufacturing sector.

“Supply chain vulnerability assessments almost never include sexual health commodities. They should. India imports roughly 86 percent of its anhydrous ammonia from West Asian countries including Saudi Arabia, Qatar, and Oman, with that ammonia being essential for stabilizing the natural rubber latex used in domestic condom production,” said Bhuptani. “That is a documented strategic dependency that was never flagged as a risk. The Iran war converted it from a latent vulnerability into an active supply shock in a matter of weeks.”

The National AIDS Control Organization, or NACO, which oversees India’s HIV/AIDS programs, during the 2026-2027 fiscal year received an allocation of about $249 million, up from roughly $238 million the previous year. By comparison, the U.S. approved a $6 billion funding package in 2026 for global HIV/AIDS programs, according to the United Nations.

“The gay and trans community in India report high perceived HIV risk and adopted PrEP through non-profit and private channels, with cost and access remaining consistent concerns,” said Bhuptani. “The community organizations managing that risk perception are now operating in a tighter supply environment while simultaneously absorbing the downstream effects of USAID funding cuts. Health workers seeing increased anxiety among community members are observing the predictable consequence of removing redundancy from a system that had very little to begin with.”

The Washington Blade reached out to Indian condom manufacturer Manforce several times, but the company declined to comment.

Harish Iyer, an LGBTQ and equal rights activist in India, told the Blade that this is the time when the government needs to step in. Condoms, Iyer said, are not about pleasure, but about life.

“Not just in terms of HIV, it is also a source of contraception in a nation which is heavily populated. So, if there is a crisis in the condom industry, it has an adverse effect on the LGBTQ community,” said Iyer. “And eventually it has a compounding effect on the economy as well. Because if the cases of HIV wrecks to rise, if the population was to explode, it is going to have a straining effect on the economy as well. So, I think it is time that the government steps in, and condoms should be recorded as a necessity commodity rather than making it feel like any kind of commodity that some (privileged people) can afford.”

Iyer told the Blade that the government should provide condoms free of cost. 

He pointed to the Nirodh Scheme, India’s long-running family planning and safe sex program launched by the government in 1968. Condoms, Iyer said, are a necessity, not a luxury product. He urged the government to classify them as essential items and either remove the Goods and Services Tax or reduce it to a minimum.

The Nirodh Scheme was launched by the Health and Family Welfare Ministry to promote contraception and prevent the spread of sexually transmitted infections, including HIV, through the nationwide distribution of subsidized and free condoms.

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Wyoming

U.S. attorney nominee confirmed despite anti-LGBTQ history, no trial experience

Nine felony grand jury indictments tied to Darin Smith dismissed last week

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Darin Smith (Photo public domain)

Republicans confirmed Darin Smith as U.S. Attorney for the District of Wyoming on Monday, regardless of his history as interim U.S. Attorney for Wyoming and a state senator.

While serving as interim U.S. Attorney for Wyoming — after being appointed by President Donald Trump last July despite never trying a case outside of his time as a law student intern — former state Sen. Darin Smith likely prejudiced jurors during grand jury proceedings.

Nine felony grand jury indictments tied to Smith’s tenure were dismissed last week.

Judges dismissed felony indictments against Cheyenne Swett, Richard Allen, Michael Scott Hopper, Brian Joseph Johnson, Dennison Jay Antelope, Matthew Christopher Jacoby, Matthew Miller Jr., Wolf Elkins Duran, and Jose Benito Ocon. The now-dismissed charges included felony firearm possession, drug distribution, and possession of child pornography, among other allegations.

Smith allegedly told the grand jury that the defendants were “bad guys,” described them as “murderers,” and said deliberations “won’t take long.”

Even the U.S. Attorney’s Office for the District of Wyoming acknowledged that Smith’s comments were “ill-advised.”

Smith has a history of aligning with Trump over the Constitution and supporting anti-LGBTQ legislation.

In 2025, Smith co-sponsored House Bill 0194, titled “Obscenity amendments,” which, among other provisions, would have criminalized drag shows. The bill also would have repealed exemptions for public and school librarians from the crime of “promoting obscenity” to minors. The wording of the bill was so vague that Republican state Rep. Lee Filer said, “We will end up having to arrest somebody for allowing a child to read the Holy Bible.”

Smith also co-sponsored SF0062, a bill requiring public school students to use restrooms, sex-designated changing facilities, and sleeping quarters that align with their sex assigned at birth. In March 2025, the Wyoming governor signed the bill into law, along with its House companion.

He also attended the Jan. 6 Capitol riot alongside thousands of other Trump supporters.

“Smith was on the Capitol grounds on Jan. 6 … and made the reprehensible claim … that the hundreds of Capitol Police officers who risked their lives that day were guilty of ‘massive incompetence.’ Smith blames the police for what happened on Jan. 6. Without evidence, he claimed that rioters who breached the Capitol were victims of entrapment,” U.S. Sen. Dick Durbin (D-Ill.) said. “Moreover, Smith is not remotely qualified to be a U.S. Attorney. He’s going to be in the package — take it or leave it. Prior to becoming the interim U.S. Attorney, he had no courtroom or litigation experience whatsoever. None. And Smith’s lack of experience has had real-world consequences.”

Prior to his work in the Wyoming state legislature, Smith worked as Director of Planned Giving for the Family Research Council, an organization that describes homosexuality as “harmful” to society with “negative physical and psychological health effects.”

The organization also believes that sexual orientation “should [not] be included as a protected category in nondiscrimination laws or policies, as it is not comparable to inborn, immutable characteristics such as race or sex.”

During questioning before the U.S. Senate, he denied that his work with the organization shows he has loss of impartiality when it comes to matters of LGBTQ rights.

Also questioning, Smith was asked about a now-deleted Facebook post in which he appeared to express support for Kim Davis, the Kentucky county clerk who was found to be unconstitutional in her refusal to issue same-sex marriage licenses, despite Obergefell v. Hodges.

“Perhaps Hillary and Obama can share the cell with Kim Davis for refusing to uphold the Defense of Marriage Act,” the post said.

When asked why he posted it, Smith told Durbin: “I do not recall.”

Josh Sorbe, spokesperson for the Senate Judiciary Committee Democrats and Durbin, said:

“Anti-LGBTQ+ extremist Darin Smith has no business serving as a top law enforcement officer in any state — let alone a state with as much history of queer importance as Wyoming. He’s an unqualified insurrectionist with no experience litigating criminal or federal matters, and his bigotry puts into serious question his commitment to upholding the law for all Americans.”

Human Rights Campaign Vice President of Government Affairs David Stacy also condemned Smith’s confirmation to the U.S. Attorney’s office.

“The justice system in America is supposed to be about ensuring the law is applied fairly and equally. But Darin Smith has spent his career obsessed with making life worse for LGBTQ+ people, opposing marriage equality, cosponsoring state legislation targeting transgender youth, and smearing LGBTQ+ people in public statements,” Stacy said. “Just over two decades after Matthew Shepard was brutally murdered in that same state, Wyoming deserves better than tired anti-LGBTQ+ hate at the helm of federal law enforcement. The Senate should reject Darin Smith and demand a nominee who will put the people — and justice — first.”

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Vermont

Vt. lawmaker equates transgender identity with bestiality

Vermont Democrats condemned comments, demanded apology

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Vermont state Sen. Steven Heffernan (R-Addison) (Photo public domain; courtesy Vermont General Assembly)

State Sen. Steven Heffernan (R-Addison) equated transgender people to bestiality on the Vermont Senate floor on May 15 while debating an animal cruelty bill.

Heffernan, who was elected in 2024 to the state Senate, constructed a scenario in which a trans person is indistinguishable from someone committing bestiality.

“In these crazy times, what happens if the individual identifies as an animal having intercourse with an animal? How is the courts going to handle that?” the former member of the Vermont Air National Guard said while debating House Bill 578. “Being that we voted through Prop Four, and if it does make it through this state, and I have a gender identity that I identify as a dog and had sex with my dog, is this law going to affect me?”

State Sen. Tanya Vyhovsky (D-Chittenden Central), who presented H. 578 responded professionally.

“The bill that we are putting forward in the current law is quite clear that any act between a person and an animal that involves contact with the mouth, sex organ, or anus of the person, and the mouth, sex organ, or anus of the animal, without a bona fide veterinary purpose, will be a crime.”

In the video, Heffernan continued to ask inappropriate questions — questions that Vyhovsky answered.

“If I identify as that animal, will this be able to … It says a person. I’m not a person. I’m identifying as this animal I’m having intercourse with,” he said. “We are identifying genders, of whatever gender we decide we want to be, and I think I like this bill. I’m going to vote for this bill, but I want to make this chamber aware of what’s coming.”

Vyhovsky made a statement saying this was a planned move in an attempt to “other” trans Vermonters instead of protecting them.

“Senator Heffernan knew exactly what he was doing,” said Vyhovsky. “Sen. Heffernan is using the same dehumanizing playbook that has been used against LGBTQ+ people for generations — the false, ugly suggestion that queer and trans identity is synonymous with deviance and harm. It was wrong then and it is wrong now.”

This derogatory action at the expense of trans people appears to be part of a pattern of behavior from Heffernan in his official capacity.

In March, Heffernan left the floor right before lawmakers voted on Proposal 4, conveniently missing the bill vote. PR 4, if passed by the state’s voters in the fall, would amend the state constitution to enshrine protections against unjust treatment, including discrimination based on a “person’s race, ethnicity, sex, religion, disability, sexual orientation, gender identity, gender expression, or national origin.”

Heffernan told VTDigger at the time that he left because his stomach was feeling “agitated” and he needed to use the restroom. He said he had not made up his mind on how to vote on the amendment, largely because he’d heard from constituents urging him both to vote for and against it.

“My pizza hit at the right time, I guess,” he said, calling the timing “convenient.”

Despite his leaving — and being the only lawmaker to do so — the state Senate voted to pass it 29-0, with Heffernan marked “absent.” This came after the state House of Representatives voted to pass it 128-14 last week.

Vermont Senate Democrats condemned the statement and used the opportunity to emphasize the need for the state to pass PR 4 on Nov. 4.

“In the wake of Sen. Heffernan’s comments, the stakes of this election couldn’t be more clear,” the statement provided to the Washington Blade read. “Transgender and nonbinary Vermonters are our neighbors, our friends, and our family members. On Friday, Sen. Heffernan used his platform as an elected official representing the people of Vermont to dehumanize them. Senate Democrats will never stop fighting for dignity for all Vermonters. We demand Senator Heffernan apologize to those he has harmed with his words and actions.”

State Sen. Kesha Ram Hinsdale (D-Chittenden Southeast), speaking in her capacity as chair of the Senate Ethics Panel, responded to similar transphobic comments made by President Donald Trump in a White House counterterrorism strategy document last week, in which he said those with “extreme transgender ideologies” should know “we will find you and we will kill you,” stating:

“A lot of people are living in fear in this country because of what somebody with the power of the pen and the power of the military is saying every day,” Hinsdale said. “Just because [speech] is protected does not mean it is worthy of this institution, and does not mean it is worthy of the office we hold and the power that we wield in the lives of Vermonters.”

The Blade reached out to Heffernan for comment but has not heard back.

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