National
Obama administration seeks stay on ‘Don’t Ask’ case
Congressional votes are cause for pause, brief says
President Barack Obama’s administration is asking a federal court to halt proceedings on a legal challenge to ‘Don’t Ask, Don’t Tell.’ (Photo by Pete Souza, courtesy of White House)
The Obama administration is asking a federal court to hold off on advancing a legal challenge to “Don’t Ask, Don’t Tell” until Congress completes legislative action on the issue this year.
In a reply brief issued June 9 in Log Cabin v. United States, the Justice Department argues the U.S. District Court of Central California should defer adjudicating the case in light of recent votes in the House and Senate on measures that would lead to the repeal of “Don’t Ask, Don’t Tell.”
The pending case, initially filed by Log Cabin Republicans in 2004, seeks to overturn “Don’t Ask, Don’t Tell” on the grounds that it violates the freedom of speech rights of gay, lesbian and bisexual service members.
The Justice Department brief that was made public last week comes after U.S. District Judge Virginia Phillips ruled late last month to deny the government’s call for summary judgment in the case based on plaintiffs’ lack of standing.
The deadline for the plaintiffs’ response to the brief is June 23.
In the brief, the Obama administration contends that “principles of constitutional avoidance and respect for the coequal branches of government” necessitate that the court should support a stay in proceedings until “completion of the process already undertaken by the political branches.”
“Accordingly, the court should await the outcome of the process in which the political branches are now engaged before deciding the constitutional question presented,” the brief says.
Late last month, the House and the Senate Armed Services Committee voted in favor of attaching “Don’t Ask, Don’t Tell” repeal language to the fiscal year 2011 defense authorization bill. The Justice Department argues proceedings on the case should stop until Congress completes this action because, among other reasons, courts “should not decide constitutional issues if they can reasonably avoid doing so.”
Further, the government argues that holding off on adjudication is in the best interest of all parties involved because it would save the court from “expending considerable time and resources on pretrial motions, trial preparation, trial, and any potential post-trial briefing concerning the constitutionality of a statute that may be repealed.”
Doug NeJaime, a gay law professor at Loyola Law School, said he disagrees with the Justice Department’s argument to hold off on proceedings because the “Don’t Ask, Don’t Tell” repeal measure under consideration in Congress is a compromise that “still leaves some uncertainty.”
The measure that lawmakers have put forward wouldn’t take effect until after the Defense Department completes its study on the issue at the end of the year and the president, defense secretary and chairman of the Joint Chiefs of Staff certify that the U.S. military is ready for repeal.
“And given the way in which the [‘Don’t Ask, Don’t Tell]’ repeal has crawled up to this point, I don’t think it makes sense for a court to stay the case pending legislative action,” NeJaime said. “The constitutional questions are ripe for consideration.”
The reply brief also responds to a request from the court to address the potential application of a heightened standard of review set forth in the 2008 Ninth Circuit of Appeals ruling in Witt v. Air Force, which was tied to “Don’t Ask, Don’t Tell.”
The Witt decision, which was construed to only apply to the plaintiff, determined the Pentagon needed to prove lesbian Maj. Margaret Witt’s sexual orientation was a detriment to unit cohesion in order to discharge her from the Air Force.
The Justice Department argues that the Witt standard doesn’t apply in the Log Cabin case because Witt was an as-applied challenge while Log Cabin is a facial challenge.
In a facial challenge, the plaintiff alleges that a statute is always and under all circumstances unconstitutional and therefore void. But in an as-applied challenge, a plaintiff contends that a statute may in part be unconstitutional in redress of a specific injury.
The Justice Department argues that the U.S. District Court of Central California already determined last year that the Witt standard — as an as-applied case — doesn’t apply to the Log Cabin litigation.
“There is no basis to reconsider that ruling, which was and remains correct,” the brief says.
However, should the court decide to evaluate “Don’t Ask, Don’t Tell” under a more heightened review, the Justice Department says the court already rejected a legal challenge with this standard of scrutiny against the policy for gays in the military in the 1980 case Beller v. Middendorf.
“Because Witt does not disturb the analysis employed in Beller with respect to facial challenges, the Beller standard, not the as-applied Witt standard, is binding,” the brief says.
The Justice Department further contends it’s entitled to summary judgment in its favor because Log Cabin’s challenge “would fail under the Beller analysis.”
But NeJaime said he disagrees with the Justice Department’s determination that the Beller case applies to Log Cabin’s litigation and not Witt.
Although Witt is an as-applied challenge, NeJaime said that doesn’t mean “the court’s analysis in Witt, and its application of a heightened standard of review, is irrelevant to the pending facial challenge.”
NeJaime said the Witt court drew on protections afforded to LGBT people in the 2003 U.S. Supreme Court case of Lawrence v. Texas, which struck down state sodomy laws throughout the country.
He said the application of Lawrence in the Witt case is “certainly relevant” in Log Cabin’s facial challenge and “counsels against applying rational basis review, as the government urges the court to do.”
“And, furthermore, I think it casts doubt on the government’s argument that Beller, and not Witt, should govern this case,” NeJaime said. “The pre-Lawrence Beller decision must certainly be re-evaluated in light of the Lawrence decision.”
New York
Men convicted of murdering two men in NYC gay bar drugging scheme sentenced
One of the victims, John Umberger, was D.C. political consultant
A New York judge on Wednesday sentenced three men convicted of killing a D.C. political consultant and another man who they targeted at gay bars in Manhattan.
NBC New York notes a jury in February convicted Jayqwan Hamilton, Jacob Barroso, and Robert DeMaio of murder, robbery, and conspiracy in relation to druggings and robberies that targeted gay bars in Manhattan from March 2021 to June 2022.
John Umberger, a 33-year-old political consultant from D.C., and Julio Ramirez, a 25-year-old social worker, died. Prosecutors said Hamilton, Barroso, and DeMaio targeted three other men at gay bars.
The jury convicted Hamilton and DeMaio of murdering Umberger. State Supreme Court Judge Felicia Mennin sentenced Hamilton and DeMaio to 40 years to life in prison.
Barroso, who was convicted of killing Ramirez, received a 20 years to life sentence.
National
Medical groups file lawsuit over Trump deletion of health information
Crucial datasets included LGBTQ, HIV resources
Nine private medical and public health advocacy organizations, including two from D.C., filed a lawsuit on May 20 in federal court in Seattle challenging what it calls the U.S. Department of Health and Human Services’s illegal deletion of dozens or more of its webpages containing health related information, including HIV information.
The lawsuit, filed in the United States District Court for the Western District of Washington, names as defendants Robert F. Kennedy Jr., secretary of the Department of Health and Human Services (HHS) and HHS itself, and several agencies operating under HHS and its directors, including the Centers for Disease Control and Prevention, the National Institutes of Health, and the Food and Drug Administration.
“This action challenges the widespread deletion of public health resources from federal agencies,” the lawsuit states. “Dozens (if not more) of taxpayer-funded webpages, databases, and other crucial resources have vanished since January 20, 2025, leaving doctors, nurses, researchers, and the public scrambling for information,” it says.
“These actions have undermined the longstanding, congressionally mandated regime; irreparably harmed Plaintiffs and others who rely on these federal resources; and put the nation’s public health infrastructure in unnecessary jeopardy,” the lawsuit continues.
It adds, “The removal of public health resources was apparently prompted by two recent executive orders – one focused on ‘gender ideology’ and the other targeting diversity, equity, and inclusion (‘DEI’) programs. Defendants implemented these executive orders in a haphazard manner that resulted in the deletion (inadvertent or otherwise) of health-related websites and databases, including information related to pregnancy risks, public health datasets, information about opioid-use disorder, and many other valuable resources.”
The lawsuit does not mention that it was President Donald Trump who issued the two executive orders in question.
A White House spokesperson couldn’t immediately be reached for comment on the lawsuit.
While not mentioning Trump by name, the lawsuit names as defendants in addition to HHS Secretary Robert Kennedy Jr., Matthew Buzzelli, acting director of the Centers for Disease Control and Prevention; Jay Bhattacharya, director of the National Institutes of Health; Martin Makary, commissioner of the Food and Drug Administration; Thomas Engels, administrator of the Health Resources and Services Administration; and Charles Ezell, acting director of the Office of Personnel Management.
The 44-page lawsuit complaint includes an addendum with a chart showing the titles or descriptions of 49 “affected resource” website pages that it says were deleted because of the executive orders. The chart shows that just four of the sites were restored after initially being deleted.
Of the 49 sites, 15 addressed LGBTQ-related health issues and six others addressed HIV issues, according to the chart.
“The unannounced and unprecedented deletion of these federal webpages and datasets came as a shock to the medical and scientific communities, which had come to rely on them to monitor and respond to disease outbreaks, assist physicians and other clinicians in daily care, and inform the public about a wide range of healthcare issues,” the lawsuit states.
“Health professionals, nonprofit organizations, and state and local authorities used the websites and datasets daily in care for their patients, to provide resources to their communities, and promote public health,” it says.
Jose Zuniga, president and CEO of the International Association of Providers of AIDS Care (IAPAC), one of the organizations that signed on as a plaintiff in the lawsuit, said in a statement that the deleted information from the HHS websites “includes essential information about LGBTQ+ health, gender and reproductive rights, clinical trial data, Mpox and other vaccine guidance and HIV prevention resources.”
Zuniga added, “IAPAC champions evidence-based, data-informed HIV responses and we reject ideologically driven efforts that undermine public health and erase marginalized communities.”
Lisa Amore, a spokesperson for Whitman-Walker Health, D.C.’s largest LGBTQ supportive health services provider, also expressed concern about the potential impact of the HHS website deletions.
“As the region’s leader in HIV care and prevention, Whitman-Walker Health relies on scientific data to help us drive our resources and measure our successes,” Amore said in response to a request for comment from the Washington Blade.
“The District of Columbia has made great strides in the fight against HIV,” Amore said. “But the removal of public facing information from the HHS website makes our collective work much harder and will set HIV care and prevention backward,” she said.
The lawsuit calls on the court to issue a declaratory judgement that the “deletion of public health webpages and resources is unlawful and invalid” and to issue a preliminary or permanent injunction ordering government officials named as defendants in the lawsuit “to restore the public health webpages and resources that have been deleted and to maintain their web domains in accordance with their statutory duties.”
It also calls on the court to require defendant government officials to “file a status report with the Court within twenty-four hours of entry of a preliminary injunction, and at regular intervals, thereafter, confirming compliance with these orders.”
The health organizations that joined the lawsuit as plaintiffs include the Washington State Medical Association, Washington State Nurses Association, Washington Chapter of the American Academy of Pediatrics, Academy Health, Association of Nurses in AIDS Care, Fast-Track Cities Institute, International Association of Providers of AIDS Care, National LGBT Cancer Network, and Vermont Medical Society.
The Fast-Track Cities Institute and International Association of Providers of AIDS Care are based in D.C.
U.S. Federal Courts
Federal judge scraps trans-inclusive workplace discrimination protections
Ruling appears to contradict US Supreme Court precedent
Judge Matthew Kacsmaryk of the U.S. District Court for the Northern District of Texas has struck down guidelines by the U.S. Equal Employment Opportunity Commission designed to protect against workplace harassment based on gender identity and sexual orientation.
The EEOC in April 2024 updated its guidelines to comply with the U.S. Supreme Court’s ruling in Bostock v. Clayton County (2020), which determined that discrimination against transgender people constituted sex-based discrimination as proscribed under Title VII of the Civil Rights Act of 1964.
To ensure compliance with the law, the agency recommended that employers honor their employees’ preferred pronouns while granting them access to bathrooms and allowing them to wear dress code-compliant clothing that aligns with their gender identities.
While the the guidelines are not legally binding, Kacsmaryk ruled that their issuance created “mandatory standards” exceeding the EEOC’s statutory authority that were “inconsistent with the text, history, and tradition of Title VII and recent Supreme Court precedent.”
“Title VII does not require employers or courts to blind themselves to the biological differences between men and women,” he wrote in the opinion.
The case, which was brought by the conservative think tank behind Project 2025, the Heritage Foundation, presents the greatest setback for LGBTQ inclusive workplace protections since President Donald Trump’s issuance of an executive order on the first day of his second term directing U.S. federal agencies to recognize only two genders as determined by birth sex.
Last month, top Democrats from both chambers of Congress reintroduced the Equality Act, which would codify LGBTQ-inclusive protections against discrimination into federal law, covering employment as well as areas like housing and jury service.
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