National
Kagan’s record, sexual orientation draw scrutiny
LGBT groups mixed on Supreme Court nominee
Solicitor General Elena Kagan, a U.S. Supreme Court nominee, could be asked to address past comments on ‘Don’t Ask, Don’t Tell’ and same-sex marriage during her confirmation hearings. (Photo by Lawrence Jackson; courtesy of White House)
President Obama’s nomination of Solicitor General Elena Kagan to the Supreme Court is inspiring varied reactions, ranging from excitement to caution, as questions linger about her record on LGBT issues.
Many LGBT advocacy groups are pleased that Kagan opposed military recruitment on Harvard’s campus because “Don’t Ask, Don’t Tell” violates university non-discrimination policies, but others are waiting for her to clarify her positions on LGBT issues in congressional testimony before the Senate.
Meanwhile, questions about Kagan’s sexual orientation distracted attention from her record this week, as some anti-gay conservatives — along with more than a few LGBT bloggers — speculated that she is a lesbian.
Obama nominated Kagan to fill the seat that will be vacated at the end of the term by retiring Associate Justice John Paul Stevens. If the Senate confirms her to the position, there would be three women sitting on the Supreme Court, the most women the bench has seen in its history.
Prior to her tenure as solicitor general, in which she defended federal law before the Supreme Court, Kagan was a clerk for former Associate Justice Thurgood Marshall, an associate White House counsel for former President Bill Clinton and dean of Harvard law school.
In a statement, Sen. Patrick Leahy (D-Vt.), chair of the Senate Judiciary Committee, said the Senate would consider Kagan’s nomination this summer and should confirm her nomination before the August recess.
Joe Solmonese, president of the Human Rights Campaign, in a statement, praised Obama for selecting Kagan to serve on the bench.
“We applaud President Obama for choosing Elena Kagan to become our nation’s next U.S. Supreme Court Justice,” Solmonese said. “We are confident that Elena Kagan has a demonstrated understanding and commitment to protecting the liberty and equality of all Americans, including LGBT Americans.”
Doug NeJaime, a gay associate law professor at Loyola Law School, expressed similar excitement over the nomination of Kagan, whom he called a “fantastic” choice to serve on the bench.
In 2008, NeJaime said he attended a Harvard gay and lesbian caucus conference where Kagan moderated a panel with sexual orientation law scholars. He noted that Kagan “was clearly really knowledgeable about these issues.”
“I think she’ll do a good job in dealing with them and hopefully having conversations with other justices — getting them more on board with what LGBT legal issues entail,” NeJaime said.
But Hayley Gorenberg, deputy legal director for Lambda Legal, was more cautious about embracing Kagan’s nomination and said she was awaiting the Senate confirmation process.
“She’s just been nominated, and we are studying everything that we can on her,” she said. “We’re looking toward the confirmation hearings so that we can learn more about her positions on legal areas that are core to the right of LGBT people and people with HIV.”
In particular, Gorenberg said she’s looking to see whether Kagan will separate herself from the Justice Department’s legal briefs defending challenges to the Defense of Marriage Act and “Don’t Ask, Don’t Tell,” which occurred under her watch during the Obama administration.
“Those briefings give us concern, and we certainly voiced it with the Obama administration,” Gorenberg said. “So, what we need to see now is her views apart from an institutional position, and that’s what we’re looking toward in confirmation hearings.”
‘Don’t Ask’ stance
could be obstacle
One potential obstacle that Kagan may encounter on her path to confirmation — despite the favor it may win her among LGBT supporters — is her opposition as dean of Harvard law school to military recruiting on campus because of “Don’t Ask, Don’t Tell.”
In October 2003, Kagan wrote in an e-mail to students that military recruiting on campus caused her “deep distress” and that she “abhor[s] the military discriminatory recruitment policy,” according to a recent report in the Washington Post.
She was quoted as calling the recruitment policy in the U.S. military “a profound wrong — a moral injustice of the first order.”
In 2005, Kagan was also one of 40 Harvard professors who signed a friend-of-the-court brief in favor of an appellate court ruling overturning the Solomon Amendment, which would have allowed colleges to limit the military’s presence at campus recruiting events. The Supreme Court unanimously disagreed with the lower court ruling.
Conservative senators could pounce on Kagan’s views on military recruitment on campus as dean of Harvard law school as reason to vote against her confirmation.
Sen. Jeff Sessions (R-Ala.), ranking Republican on the Senate Judiciary Committee, said in a statement published shortly after her nomination that Kagan’s position is “deserving review.”
“This is a significant issue for me since I worked hard for the passage of the Solomon Amendment,” Sessions said. “Her actions in this case, along with other issues, will need to be addressed, and Ms. Kagan will be given a fair opportunity to respond.”
Sen. James Inhofe (R-Okla.) said Monday he plans to vote against Kagan’s confirmation — making him the first senator to commit to a “no” vote — because of her position on campus military recruitment.
But NeJaime said he didn’t think Kagan’s position would be problematic because it’s “very much in the mainstream of the legal academic community,” and other law schools besides Harvard have challenged the constitutionality of the Solomon Amendment in court.
“It’s not like she was even completely out in front on that issue,” NeJaime said. “I also think public sentiment against ‘Don’t Ask, Don’t Tell’ is pretty high, and so it’s not a non-mainstream position.”
But Gorenberg said Senate opposition to Kagan’s confirmation because of her position on military recruitment is already apparent.
“We can already see that the positions that she promoted as dean that were targeted against discrimination against LGBT people — that those positions are already the subject of potshots from anti-gay extremists,” Gorenberg said. “We saw that instantly upon her nomination, if not before.”
Kagan’s views on military recruitment also raise the question of whether she would be asked to recuse herself in the event a “Don’t Ask, Don’t Tell” case came before the Supreme Court while she’s on the bench.
Gorenberg said “it’s not clear” that Kagan would need to seek recusal in such a situation based on her comments as dean of Harvard law.
The Servicemembers Legal Defense Network didn’t immediately respond to the Blade’s request to comment on Kagan’s statements on military recruitment or whether she would have to recuse herself if a “Don’t Ask, Don’t Tell” case reached the high court.
Same-sex marriage
a potential issue
Another topic that may come up during Kagan’s confirmation hearings is her position on same-sex marriage and whether she thinks the U.S. Constitution provides for marriage rights for same-sex couples. Such a position would be especially important for LGBT people because cases on same-sex marriage could be on their way to the Supreme Court.
Kagan previously denied that the U.S. Constitution grants a right to same-sex marriage in a questionnaire answer prior to her confirmation hearings to become solicitor general.
“There is no federal constitutional right to same-sex marriage,” she wrote in a response to a question on the issue.
In response to a subsequent question, she added that she doesn’t believe she expressed an opinion on the question before that time.
Kagan’s response could be troubling for organizations behind federal lawsuits seeking to overturn the Defense of Marriage Act or bans on same-sex marriage within states.
The American Federation for Equal Rights, the organization behind the Perry v. Schwarzenegger case seeking to overturn California’s Proposition 8, didn’t respond to the Blade’s request to comment on the Kagan nomination.
A spokesperson for the Gay & Lesbian Advocates & Defenders — which is behind Gill v. Office of Personnel Management, a case seeking to overturn part of DOMA that prohibits federal recognition same-sex marriage — said her organization isn’t commenting on the Kagan nomination because the lawsuit could go to the Supreme Court.
On the Perry case, NeJaime said Kagan’s comment on same-sex marriage could be relevant depending on whether the court takes up the case as a broad question about constitutional rights to same-sex marriage or, more simply, California’s legitimate interest in passing Proposition 8.
“I also think we don’t really know what her position will be on an issue like that until the issue is briefed and until it’s actually at the court,” he said. “I’m pretty confident that she is at least open-minded to LGBT claims under the federal Constitution.”
Gorenberg said she’s “not sure” whether Kagan’s comments would be a predictor of how the nominee would rule if marriage cases came before the Supreme Court.
She said the remarks raise the question of what Kagan meant in her questionnaire answer, but noted that it’s unknown whether Kagan’s position would become more clear during confirmation hearings.
“We would always like to know what would happen in the future on a specific issue, but it’s not surprising to us — for any nominee — that we don’t get a specific forecast on a case because it’s just not standard that the nominees ever give them to us,” Gorenberg said.
Still another issue surrounding the nomination is whether Kagan, who’s unmarried, is a lesbian.
In a deleted CBS News posting published prior to the announcement of Kagan’s nomination, conservative blogger Ben Domenech wrote that confirmation of Kagan would make her the “first openly gay justice.”
The White House disputed Domenech’s characterization of Kagan as an out lesbian and said he was making false charges. After the posting was deleted, Domenech maintained that he heard discussion about her sexual orientation.
In a later posting on the Huffington Post, Domenech wrote that he “erroneously believed” Kagan was an out lesbian because “it had been mentioned casually on multiple occasions by friends and colleagues — including students at Harvard, Hill staffers, and in the sphere of legal academia — who know Kagan personally.”
Sessions’ office didn’t respond to the Blade’s request to comment on whether the matter was of concern to the senator or whether he would expect questions on the issue to come up during the confirmation hearings.
NeJaime said he didn’t anticipate discussions of Kagan’s sexual orientation to arise during her confirmation hearings, but said it would be “sad commentary” if the matter became a stumbling block for her.
“We don’t know about her sexual orientation one way or the other, and I don’t really anticipate it being an issue that anyone takes up,” he said.
Gorenberg said she didn’t have any information on Kagan’s sexual orientation and didn’t know how lawmakers would respond to speculation that she’s a lesbian.
“There are a lot of senators out there and I don’t know [who] may or may not be inclined to go after any nominee based on their sexual orientation,” Gorenberg said.
She said one of Lambda’s central tenets is that people shouldn’t face discrimination based on sexual orientation and noted that principle could be applied in Senate confirmation hearings.
A friend of Kagan’s told Politico this week that Kagan is not a lesbian.
“I’ve known her for most of her adult life and I know she’s straight,” Sarah Walzer, Kagan’s law school roommate, told Politico. “She dated men when we were in law school, we talked about men … She definitely dated when she was in D.C. after law school … and she just didn’t find the right person.”
National
White House orders warning signs at Smithsonian over gender identity exhibits
Administration criticizes National Museum of American History
The Trump administration will install temporary warning signs outside the Smithsonian’s National Museum of American History after releasing a report accusing the museum of promoting what it calls “radical” gender ideology and other politically biased content.
According to the Executive Order, “For purposes of policy formulation under EO 14253, this review of the National Museum of American History concludes that NMAH, by the intention and at the direction of current Museum and Smithsonian leadership, has become subject to institutional capture by a radical, activist ideology that is fundamentally opposed to telling the noble, honest story of the great country we know and love.”
Executive Order 14253 refers to what the White House has deemed the “Restoring Truth and Sanity to American History” order. Therefore, the Trump administration has said it will take all available steps to ensure that the issues in the report are addressed and rectified.
Without specifying, the White House has stated that warnings will be posted along NMAH to alert visitors to sections of the museum it has deemed are in violation according to the report.
“The Secretary of the Interior, acting through the Director of the National Park Service (NPS) and in coordination with the Assistant to the President for Domestic Policy, shall install temporary signage along the NPS-maintained sidewalks and walkways used by the public to access the Museum, informing visitors of the findings of the Report and of the policy set forth in section 1 of this order,” the Executive Order states.
The warnings were raised in a 162-page report issued by the Domestic Policy Council. The report detailed ways in which the National Museum of American History (NMAH) has “poorly” portrayed American history and insufficiently highlighted the founding story during America 250th celebrations.
The report outlined key findings of the NMAH. One of these findings was the Center for Restorative History within the museum, which has stated its purpose is to “encourage systemic change” by highlighting diverse groups. However, the report states that it highlights every group of Americans except for straight and white Americans.
The Domestic Policy Council accused the museum of engaging in “transgender activism.” According to the report, examples include referring to “biological men” as women or girls, displaying what it describes as sexually suggestive content, and incorporating discussions of gender fluidity, gender identity, and gender nonconformity into the museum’s educational curriculum, “Becoming US.”
The report also criticizes the curriculum for using the term “transgender” when discussing gender-nonconforming people and encouraging individuals to ask a person’s pronouns when meeting them. It further objects to exhibits stating that “transgender, nonbinary, and cisgender female athletes” continue to struggle for and demand equality.
It also condemns what it refers to as explicit content in an exhibition, “Girlhood (It’s Complicated)”, such as chest binders, questioning gender testing in women’s sports, and referring to biological females as “people inhabiting female bodies.”
Additionally, the report accuses the museum of no longer participating in flag-celebrating ceremonies because it was “too busy” preparing for June Pride and WorldPride events. It states, “As Director Hartig explained in a June 2024 presentation, all her attention was focused on flying the Smithsonian Pride Alliance’s ‘intersexual pride flag during June’ in 2023 and 2024.”
On July 9, the American Historical Association issued a statement rejecting the report’s findings.
In regard to the report, it states, “Its anonymous authors overlook a central lesson of the nation’s founding: the United States was forged by finding common purpose amid intense divisions, conflicts, and disagreements.” They argue that only “honest history” can tell the true history of the nation.
House Republicans led a subcommittee hearing that questioned Smithsonian Director Hartig extensively. A main focus of the questions was on the exhibits related to gender identity and whether they were appropriate. In the hearing, Rep. Nancy Mace asked: “When was your gender revealed to you, Dr. Hartig?”
In response to questioning, Hartig stated that the institution is nonpartisan and does not push a specific agenda.
Hartig published a two-page statement ahead of her hearing outlining her thoughts on the situation. In the report, she states that the institution is always open to criticism and will continue to look for ways to improve, but she sees the report as misleading.
“I can attest that the report does not fairly characterize the full body of work at this museum. I am familiar with the depth and breadth of our collections, exhibits, and programming. And while I recognize there is always room for improvement, I also know the beauty, inspiration, and expertise that exists in our museum,” Hartig wrote.
Democrats created their own 16-page report as a rebuttal to the Domestic Policy Council’s report. It argued that the attacks by the current Trump administration are another example of its attempt to rewrite history. Additionally, the report states that no policy changes were included in the Executive Order, as that is beyond the President’s role. “The Report recommends nothing. That is no accident. To recommend an action, the Report would need to identify who is legally empowered to take it, and its own opening chapter concedes the President’s only power is to ‘urge’,” House Democrats wrote.
It is still unclear when the temporary warnings will be installed or what form they will take beyond the requirements outlined in the executive order.
An exhibit at the Smithsonian. (Washington Blade photo by Landon Shackelford)
National
Trump ends direct HIV prevention funding to community groups
Advocates say transfer of funds to states may disrupt local programs
A decision by the U.S. Office of Management and Budget (OMB) at the request of the Trump administration to discontinue direct federal funding of community-based organizations and clinics that provide HIV prevention services has raised concern among community health advocates, including LGBTQ advocates.
News surfaced earlier this month that the OMB informed the U.S. Centers for Disease Control and Prevention that it would not renew $46 million in funding for 96 community-based organizations that provide HIV testing, referrals to medical care, and arrangements for obtaining pre-exposure HIV prevention medication known as PrEP that has been shown to be 99 percent effective in preventing HIV infection.
Under the new policy arranged by OMB, the funds will be redirected to the states to be allocated to state and local health departments. The policy calls for states to encourage but not require their respective state and local health departments to allocate some of those funds for community-based organizations. Under the new policy, the funding is scheduled to last until May of 2027, before a renewal decision is made.
Some political observers have speculated that the decision to end direct federal funding to community-based organizations could be motivated by the Trump administration’s hostility to diversity, equity, and inclusion or DEI programs and organizations that promote those programs, with the belief that some of the groups receiving the federal HIV prevention funds are promoting DEI.
Carl Schmid, executive director of the D.C.-based HIV+ Hepatitis Policy Institute, is among the leaders of many AIDS advocacy organizations expressing strong opposition to the OMB action. Schmid said that in places like D.C. and some states, local officials will be willing to redirect the federal funds to local community-based organizations.
A list of the 96 community-based organizations across the country that are currently receiving the federal AIDS funds includes the D.C.-based Whitman-Walker Health, which has a long history of healthcare support for the LGBTQ community, and La Clinica del Pueblo, which reaches out to the Latino community.
Schmid said Whitman-Walker and La Clinica del Pueblo have longstanding good relationships with the local D.C. government.
“But other states and jurisdictions don’t have that relationship with the community-based organizations,” Schmid said. “It depends on the state,” he said, adding, “Not all states send their money to the communities that really need it most. And not all states are fast in getting money to the community-based organizations.”
Spokespersons for Whitman-Walker and La Clinica del Pueblo couldn’t immediately be reached for comment on whether they think the Trump administration’s latest action related to funding will adversely impact their respective organizations.
Schmid said under the current federal grant program slated to be discontinued, which has been in effect for at least five years, HIV-related health organizations receiving the federal grant funds were eligible for an existing federal policy enabling them to purchase HIV-related medication, including the PrEP prevention medication, at a significant discount from pharmaceutical companies. With the ending of the direct federal HIV funds to community-based organizations, Schmid said it was unclear whether problems may surface in obtaining drug discounts.
“They could still qualify as a sub-grantee from a state,” Schmid said. “But what if they don’t get that grant again? They would not be able to qualify to obtain the drugs” at the discounted price, he said.
Among the organizations expressing strong concern over the decision to discontinue the direct HIV prevention funding to community-based organizations has been the Federal AIDS Policy Institute and its subgroup called the HIV Prevention Action Coalition.
In a July 22 letter bearing the names of 71 community-based organizations from throughout the country sent to U.S. Department of Health and Human Services Secretary Robert F. Kennedy Jr. and Centers for Disease Control and Prevention Acting Director Jay Bhattacharya, the group called for the Trump administration to “reconsider” ending the current funding policy.
“Ending this program without a clear plan for what comes next would dismantle prevention infrastructure that has taken more than three decades of federal investment to build and do so just as that long record of measurable returns is accelerating,” the letter states.
It says the initiative by President Trump in his first term as president to end the HIV epidemic and reduce new HIV infections by 90 percent by 2030 was moving ahead by the funding program for community-based organizations that the administration now wants to end.
“Discontinuing this program would also cost far more than it saves,” the letter says. “Every HIV transmission prevented avoids an estimated lifetime treatment cost of roughly half a million dollars per person to the healthcare system – costs that fall heavily on taxpayer-funded programs, including Medicaid, Medicare, and the Ryan White HIV/AIDS program,” the letter continues.
“The choice before the administration is straightforward: a modest, targeted investment in prevention now, or far greater public expense for treatment later,” the letter concludes.
Spokespersons for the OMB and the Department of Health and Human Services, which oversees the CDC, have not immediately responded to news media requests for comment on the opposition to the funding change policy.
National
At Alliance Defending Freedom’s summit, church and state are one
House Speaker Mike Johnson (R-La.) among speakers
Uncloseted Media published this article on July 23.
By SPENCER MACNAUGHTON | Earlier this month, hundreds of people filled a conference room in San Diego. These included Speaker of the House Mike Johnson, Assistant Secretary of Health Admiral Brian Christine, OpenAI executive Dean Ball, and the attorneys general of West Virginia and Idaho.
They all came together for Alliance Defending Freedom’s 2026 Summit. The Christian legal group, also a Southern Poverty Law Center-designated anti-LGBTQ hate group, described the event as a “gathering of leaders from many different spheres, including law, public policy, media, business, education, and Christian leadership.”
Johnson — who has said that “homosexual relationships are inherently unnatural and … society cannot give its stamp of approval to such a dangerous lifestyle” — was a featured speaker.
In his speech, he seemed unconcerned with the separation of church and state: “It is so encouraging to Kelly and I to be among friends and fellow warriors for this cause and people who understand that God is not done with America yet. … ADF’s on the very tip of the spear, front line, defending those very truths and keeping the door open for the spread of the Gospel. This is our moment. I’m telling you, I believe the next season … is going to be the greatest season of this ministry since its inception.”
That ministry is one that has espoused aggressively anti-LGBTQ views since its inception in the early 1990s. It was co-founded by a group of evangelical men, including Alan Sears, who co-authored a book called “The Homosexual Agenda: Exposing the Principal Threat to Religious Freedom Today.” Since then, ADF has opposed gay marriage and supported bans on gay sex and on gender-affirming care for minors.
After helping overturn Roe v. Wade, ADF lawyers have led key victories at the Supreme Court. In 303 Creative v. Elenis, SCOTUS ruled that a website designer could refuse service to gay weddings. And this year they convinced the Court to overturn Colorado’s ban on conversion therapy and to uphold state laws in West Virginia and Idaho that ban trans girls from playing on girls’ sports teams.
At the summit, ADF President Kristen Waggoner, who has promoted conversion therapists and consistently misgenders trans people, interviewed these states’ attorneys general.
“The lawyers who were defending women’s sports were among the best I’ve ever seen in my entire life,” West Virginia Attorney General JB McCuskey told Waggoner.
Similar to Johnson, Trump’s Assistant Secretary of Health Christine showed his commitment to governing based on conservative Christianity. He gave a Bible-thumping speech against gender transition and trans healthcare, saying that it “contradicts … the deeper moral order that is woven into creation itself. For Genesis 1:27 informs us that God created man in his own image. … Male and female” He also said the “complementary relationship between man and woman is divine” and advocated for youth with gender dysphoria to receive care from a pastor.
All of these remarks from politicians made me think of the interview I published earlier this week with Pete Hegseth’s pastor, Doug Wilson. He wants a Christian theocracy in America and told me that: both the perpetrator and the victim should be disciplined in some cases of marital rape; that transgender people are “sad;” that execution is justifiable for certain homosexual acts; and that gay sex should be illegal.
The ADF Summit is glossy and polished. And while its messaging may be less explicit than Pastor Wilson’s, the track record of the organizations shows they have the exact same desires. They’re just deeply strategic in what they say and when and how they say it.
I believe the political power players who attended this year’s summit know this. They know they are endorsing an organization whose members have essentially called for the illegalization of most — if not all ‚ forms of queer behavior and presentation.
In the last few years, these perspectives have become increasingly embedded in the highest rooms of the federal government and they have been effective in stripping away LGBTQ rights. Wilson, who just installed a full-time pastor in Washington to lead services, says there are 10 to 20 government officials who align with his church’s ideology.
It is vital for Americans to keep their eyes wide open to the ultimate goal of groups like ADF: to create a United States that leaves LGBTQ people without rights and that pushes us back in the closet.
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