National
Prop 8 case wraps up, ruling expected in weeks
Appeals could take years; may be destined for Supreme Court
Attorneys Ted Olson and David Boies (front) are waging the case against Proposition 8, which banned same-sex marriage in California. (Photo courtesy of Equal Rights Foundation)
Marriage equality supporters were focused this week on the closing arguments in a case that could end California’s ban on same-sex marriage and similar bans throughout the country.
In the case Perry v. Schwarzenegger, attorney Ted Olson, a former U.S. solicitor general for former President George W. Bush, was set to give his final arguments in favor of same-sex marriage on Wednesday, after Blade deadline.
The legal challenge, pending before Chief Judge Vaughn Walker of the U.S. District Court of Northern California, aims to invalidate Proposition 8, a ballot initiative in 2008 that ended same-sex marriage in the Golden State.
In a conference call last week with reporters, Olson made the case for same-sex marriage in California. He noted that the U.S. Supreme Court has “declared again and again” that being able to choose the person one wants to marry “is a fundamental right in this country.”
“It is vital to the opportunity for people to be a part of communities, of neighborhoods — to be able to join together in a committed relationship and to bond with one another in a relationship sanctioned by the state,” he said.
Olson compared Prop 8 to state laws banning interracial marriage, which the U.S. Supreme Court struck down in the 1967 case Loving v. Virginia, and said he was presenting the same arguments in the Perry case.
“The parents of our president of the United States would have committed a crime had they been married at the time our president was born,” Olson said.
Olson said Prop 8 is unconstitutional in part because the referendum created four separate classes of people in California with respect to marriage.
They are same-sex couples who married in California before Prop 8 passed and remain married; same-sex couples who cannot marry; same-sex couples who married in other jurisdictions and have full legal marriage rights in California; and opposite-sex couples whom Olson said can marry whomever those choose “even if they’re in prison, even if they’re child abusers, or even if they’re 90 years old.”
Olson litigated the case in partnership with David Boies, an attorney who’s also been involved in high-profile cases. The two men were on opposite sides of Bush v. Gore in 2000; Olson represented then-Republican presidential candidate Bush while Boies represented Democratic presidential candidate Al Gore.
Boies, who cross-examined defendant witnesses during the trial, said, “there isn’t any support” for the arguments advanced by proponents of Prop 8 during the trial.
Proponents of Prop 8, Boies said, presented several arguments that failed under examination, such as the purpose of marriage being procreation, that marriage has always been between one man and one woman, and that same-sex marriages could endanger opposite-sex marriages.
“None of the defendant witnesses supported those propositions, and, in fact, all of their witnesses who spoke on those issued ended up giving contrary testimony,” Boies said.
For example, he said, witnesses under examination acknowledged that procreation has never been a requirement for marriage and many societies in the past have allowed same-sex marriage, including for a time California after the state’s Supreme Court in 2008 ruled that same-sex nuptials were mandated under the state constitution.
“It was only the passage of Proposition 8 that took this right away from gay and lesbian couples even in California,” Boies said.
Additionally, Boies said defendants’ witnesses acknowledged on the stand that prohibiting LGBT couples from marrying “caused them serious damage, and caused the hundreds of thousands of children that those couples were raising serious damage.”
Boies also said defendants were unable to produce witnesses that could provide “a shred of evidence” that same-sex marriage endangers opposite-sex marriage.
“It’s a critically important case, but it’s one in which the facts really are not in dispute,” Boies said. “The other side doesn’t have a legal argument, they don’t have a factual argument — they got a circular bumper sticker for a case.”
Proponents of Prop 8 will also have an opportunity to offer remarks during closing arguments. Chuck Cooper, lead attorney for defendants, will represent those arguing for the court to uphold Prop 8.
In a statement, Jim Campbell, an attorney for Alliance Defense Fund, a conservative legal firm working on the case, said defendants would emphasize arguments they made throughout the trial.
“The team of attorneys defending Proposition 8 will highlight all the reasons why Proposition 8 is constitutional,” he said. “In doing so, they will emphasize the reasons why Proposition 8 is not only rational, but also why preserving marriage as one man and one woman is good social policy.”
Jennifer Pizer, marriage project director and senior counsel for Lambda Legal, predicated both sides in the Perry case would “survey the evidence” already presented during the trial.
She said Olson and Boies presented “a massive evidentiary record” before the court and expected them “to offer a structure for this mountain of relevant evidence that they have submitted.”
For proponents of Prop 8, Pizer said she expects attorneys to “make a mountain out of the barely noticeable molehill of evidence” that they’ve submitted.
She said much of the defendants’ evidence was submitted from individuals who weren’t qualified as experts, meaning they weren’t in court and qualified according to the rules and therefore not examined.
“The defendants offered into evidence a pile of articles without explanation of who the authors were or why any of their writings might be relevant to anything,” she said. “So I suspect that Chuck Cooper may refer to many of those documents as if they were relevant evidence, but they’re not.”
Pizer also predicted that the defendants would argue that the “anti-gay prejudice that infused and inspired the Prop 8 campaign” isn’t legally relevant to whether the initiative is constitutional. Still, Pizer said she believes this anti-gay bias was the sole purpose of Prop 8.
“The proponents of Prop 8 were inspired by anti-gay prejudice and they sent the voting public misinformation in a deliberate attempt to confuse and induce people to vote their prejudice into law — and they succeeded,” she said.
Pizer said Lambda was involved in the Perry case by filing two friend-of-the-court briefs in favor of the legal challenge to Prop 8 as well as providing resource assistance to plaintiffs in the case.
Earlier this month, Walker presented an 11-page list of questions he wanted attorneys on both sides of the case to answer during closing arguments. Among the topics for plaintiffs was a requested review of any empirical data showing that the availability of same-sex marriage reduces discrimination against LGBT people.
During the conference call, Olson said that such data can be found in the ballot label for Prop 8, which noted the measure “eliminates the rights for same-sex couples to marry.”
“You are not only stating that the state creates discrimination, but that the state sanctions discrimination — and sanctions the points of the attitudes — that bring about private discrimination,” Olson said. “It has always been the case that when the court eliminates state discrimination … that people open up and realize that what they’re doing themselves is not permissible.”
Another question was how the court could find Prop 8 unconstitutional without also invalidating the Defense of Marriage Act, the 1996 law prohibiting federal recognition of same-sex marriages.
Boies said the matter under consideration is different from DOMA because state law traditionally determines marriage in the United States, although some of the constitutional arguments against DOMA are similar to those against Prop 8.
“For all of the rights that are a matter of state law — which are the majority of rights that are involved — it is critical that people have the right to marry even if DOMA were to continue to exist,” Boies said.
Several observers following the case have predicted that Walker will rule in favor of plaintiffs, although how subsequent courts will rule on any appeal remains to be seen.
Pizer said she couldn’t predict how Walker will rule in the case, but noted that the questions he’s posed show a focus on “questions of causation.”
“He is focused on whether there are adequate government purposes and whether there’s a proper causal relationship between what Prop 8 actually does and goals that the state is actually permitted to have,” she said. “Advancing prejudice is never a proper government purpose.”
In response to a Blade inquiry on the timeline for the case, Olson said he expects a decision from Walker in the case within weeks of the closing arguments. The next step would be taking the case to the U.S. Court of Appeals for the Ninth Circuit.
Olson said he hopes that Walker will find Prop 8 unconstitutional and allow LGBT people to start marrying in California immediately, but noted that if he withholds institution of that decision, plaintiffs hope the Ninth Circuit would hear the case “in a hurry.”
“That’s probably a process that would take perhaps a year, although we moved through this case fairly rapidly so far,” Olson said.
The case could then be appealed to the U.S. Supreme Court. Olson said following the appeals court ruling, it would take six to eight months to get the case on the docket for the high court.
But Pizer said it’s difficult to determine how long the case would remain in the Ninth Circuit because it could first go before a three-judge panel — and then advance to an 11-judge panel.
“That’s a long way of saying it’s impossible to tell how long it would be between now and the Supreme Court,” she said. “It might be two years or three years. Anybody who gives you a prediction is making a guess.”
Asked whether the Supreme Court would examine only the constitutionality of Prop 8 or the validity of same-sex marriage bans throughout the country, Olson said the scope of the examination would be up to the Supreme Court.
“It will also be a part and a function of what the district court and the Ninth Circuit of Appeals decides, and who’s the party bringing the case to the Supreme Court, but I think that the court will have a menu of opportunities,” he said.
Olson said it’s possible the Supreme Court would only examine the constitutionality of the same-sex marriage ban in California because Prop 8 is “particularly egregious.”
He noted that California was the only state to allow same-sex couples to marry and then eliminate that right — and the only state to create four sets of classes of couples.
Still, Olson said “at the base” of the Perry case is the fundamental right to marry, which would apply to same-sex marriage bans throughout the country.
“I think there will be a great temptation once it gets to the Supreme Court for the justices to say, ‘This case can come back to us in various forms; we should look at the fundamental rights and decide the rights of these Americans now once and for all,’” Olson said. “We hope that that would be the case.”
National
US bishops ban gender-affirming care at Catholic hospitals
Directive adopted during meeting in Baltimore.
The U.S. Conference of Catholic Bishops this week adopted a directive that bans Catholic hospitals from offering gender-affirming care to their patients.
Since ‘creation is prior to us and must be received as a gift,’ we have a duty ‘to protect our humanity,’ which means first of all, ‘accepting it and respecting it as it was created,’” reads the directive the USCCB adopted during their meeting that is taking place this week in Baltimore.
The Washington Blade obtained a copy of it on Thursday.
“In order to respect the nature of the human person as a unity of body and soul, Catholic health care services must not provide or permit medical interventions, whether surgical, hormonal, or genetic, that aim not to restore but rather to alter the fundamental order of the human body in its form or function,” reads the directive. “This includes, for example, some forms of genetic engineering whose purpose is not medical treatment, as well as interventions that aim to transform sexual characteristics of a human body into those of the opposite sex (or to nullify sexual characteristics of a human body.)”
“In accord with the mission of Catholic health care, which includes serving those who are vulnerable, Catholic health care services and providers ‘must employ all appropriate resources to mitigate the suffering of those who experience gender incongruence or gender dysphoria’ and to provide for the full range of their health care needs, employing only those means that respect the fundamental order of the human body,” it adds.
The Vatican’s Dicastery for the Doctrine of the Faith in 2024 condemned gender-affirming surgeries and “gender theory.” The USCCB directive comes against the backdrop of the Trump-Vance administration’s continued attacks against the trans community.
The U.S. Supreme Court in June upheld a Tennessee law that bans gender-affirming medical interventions for minors.
Media reports earlier this month indicated the Trump-Vance administration will seek to prohibit Medicaid reimbursement for medical care to trans minors, and ban reimbursement through the Children’s Health Insurance Program for patients under 19. NPR also reported the White House is considering blocking all Medicaid and Medicare funding for hospitals that provide gender-affirming care to minors.
“The directives adopted by the USCCB will harm, not benefit transgender persons,” said Francis DeBernardo, executive director of New Ways Ministry, a Maryland-based LGBTQ Catholic organization, in a statement. “In a church called to synodal listening and dialogue, it is embarrassing, even shameful, that the bishops failed to consult transgender people, who have found that gender-affirming medical care has enhanced their lives and their relationship with God.”
President Donald Trump on Wednesday signed a bill that reopens the federal government.
Six Democrats — U.S. Reps. Jared Golden (D-Maine), Marie Gluesenkamp Perez (D-Wash.), Adam Gray (D-Calif.), Don Davis (D-N.C.), Henry Cuellar (D-Texas), and Tom Suozzi (D-N.Y.) — voted for the funding bill that passed in the U.S. House of Representatives. Two Republicans — Thomas Massie (R-Ky.) and Greg Steube (R-Fla.) — opposed it.
The 43-day shutdown is over after eight Democratic senators gave in to Republicans’ push to roll back parts of the Affordable Care Act. According to CNBC, the average ACA recipient could see premiums more than double in 2026, and about one in 10 enrollees could lose a premium tax credit altogether.
These eight senators — U.S. Sens. Catherine Cortez Masto (D-Nev.), Dick Durbin (D-Ill.), John Fetterman (D-Pa.), Maggie Hassan (D-N.H.), Tim Kaine (D-Va.), Angus King (I-Maine), Jacky Rosen (D-Nev.), and Jeanne Shaheen (D-N.H.) — sided with Republicans to pass legislation reopening the government for a set number of days. They emphasized that their primary goal was to reopen the government, with discussions about ACA tax credits to continue afterward.
None of the senators who supported the deal are up for reelection.
King said on Sunday night that the Senate deal represents “a victory” because it gives Democrats “an opportunity” to extend ACA tax credits, now that Senate Republican leaders have agreed to hold a vote on the issue in December. (The House has not made any similar commitment.)
The government’s reopening also brought a win for Democrats’ other priorities: Arizona Congresswoman Adelita Grijalva was sworn in after a record-breaking delay in swearing in, eventually becoming the 218th signer of a discharge petition to release the Epstein files.
This story is being updated as more information becomes available.
U.S. Military/Pentagon
Serving America, facing expulsion: Fight for trans inclusion continues on Veterans Day
Advocates sue to reverse Trump ban while service members cope with new struggles
President Trump signed EO 14183, titled “Prioritizing Military Excellence and Readiness,” on Jan. 27, directing the Department of Defense (DoD) to adopt policies that would prohibit transgender, nonbinary, and gender-nonconforming people from serving in the military.
The Trump-Vance administration’s policy shift redefines the qualifications for military service, asserting that transgender people are inherently incapable of meeting the military’s “high standards of readiness, lethality, cohesion, honesty, humility, uniformity, and integrity,” citing a history or signs of gender dysphoria. According to the DoD, this creates “medical, surgical, and mental health constraints on [an] individual.” Regardless of their physical or intellectual capabilities, transgender applicants are now considered less qualified than their cisgender peers.
On Jan. 28, 2025, GLBTQ Legal Advocates and Defenders (GLAD) Law and the National Center for LGBTQ Rights (NCLR) filed Talbott v. Trump, a federal lawsuit in the U.S. District Court for the District of Columbia challenging the executive order. Originally filed on equal protection grounds on behalf of six active service members and two individuals seeking enlistment, the case has since grown to include 12 additional plaintiffs.
The Washington Blade spoke exclusively with Second Lt. Nicolas (Nic) Talbott, U.S. Army, a plaintiff in the case, and with Jennifer Levi, Senior Director of Transgender and Queer Rights at GLAD Law, who is leading the litigation.
For Talbott, serving in the military has been a lifelong aspiration, one he pursued despite the barriers posed by discriminatory policies.
“Being transgender posed quite the obstacle to me achieving that dream,” Talbott told the Blade. “Not because it [being trans] had any bearing on my ability to become a soldier and meet the requirements of a United States soldier, but simply because of the policy changes that we’ve been facing as transgender service members throughout the course of the past decade… My being transgender had nothing to do with anything that I was doing as a soldier.”
This drive was fueled by early life experiences, including the impact of the Sept. 11 terrorist attacks, which shaped his desire to protect his country.
“Even for an eight-year-old kid, [9/11] has a tremendous amount of impact… I remember thinking, you know, this is a terrible thing. Me, and when I grow up, I want to make sure nothing like this ever happens again,” he said. “I’ve still tried to gear my life in a way that I can be preparing myself to eventually help accomplish that mission of keeping America safe from anything like that ever happening again.”
The attacks inspired countless Americans to enlist; according to the New York City government, 181,510 joined active duty and 72,908 enlisted in the reserves in the year following 9/11. Although Talbott was too young to serve at the time, the events deeply influenced his educational and career path.
“For me, [9/11] just kind of helped shape my future and set me on the path that I’m currently on today,” he added. “It ignited my passion for the field, and it’s something that you know, I’ve carried with me into my adult life, into my professional life, and that I hope to have a career in the future.”
Talbott holds a master’s degree in criminology with a focus on counterterrorism and global security, and while completing his degree, he gained practical experience working with the Transportation Security Administration.
Despite the public scrutiny surrounding the lawsuit and the ongoing uncertainty of his military future, Talbott remains grounded in the values that define military service.
“Being so public about my involvement with this lawsuit grants me the very unique opportunity to continue to exemplify those values,” Talbott said. “I’m in a very privileged spot where I can speak relatively openly about this experience and what I’m doing. It’s very empowering to be able to stand up, not only for myself, but for the other transgender service members out there who have done nothing but serve with honor and dignity and bravery.”
The ban has created significant uncertainty for transgender service members, who now face the possibility of separation solely because of their gender identity.
“With this ban… we are all [trans military members] on track to be separated from the military. So it’s such a great deal of uncertainty… I’m stuck waiting, not knowing what tomorrow might bring. I could receive a phone call any day stating that the separation process has been initiated.”
While the Department of Defense specifies that most service members will receive an honorable discharge, the policy allows for a lower characterization if a review deems it warranted. Compensation and benefits differ depending on whether service members opt for voluntary or involuntary separation. Voluntary separation comes with full separation pay and no obligation to repay bonuses, while involuntary separation carries lower pay, potential repayment of bonuses, and uncertain success in discharge review processes.
Healthcare coverage through TRICARE continues for 180 days post-discharge, but reduced benefits, including VA eligibility, remain a concern. Those with 18–20 years of service may qualify for early retirement, though even this is not guaranteed under the policy.
Talbott emphasized the personal and professional toll of the ban, reflecting on the fairness and capability of transgender service members.
“Quite frankly, the evidence that we have at hand points in the complete opposite direction… there are no documented cases that I’m aware of of a transgender person having a negative impact on unit cohesion simply by being transgender… Being transgender is just another one of those walks of life.”
“When we’re losing thousands of those qualified, experienced individuals… those are seats that are not just going to be able to be filled by anybody … military training that’s not going to be able to be replaced for years and years to come.”
Talbott also highlighted the unique discipline, dedication, and value of diversity that transgender service members bring—especially in identifying problems and finding solutions, regardless of what others think or say. That, he explained, was part of his journey of self-discovery and a key reason he wants to continue serving despite harsh words of disapproval from the men leading the executive branch.
“Being transgender is not some sad thing that people go through… This is something that has taken years and years and years of dedication and discipline and research and ups and downs to get to the point where I am today… my ability to transition was essential to getting me to that point where I am today.”
He sees that as an asset rather than a liability. By having a more diverse, well-rounded group of people, the military can view challenges from perspectives that would otherwise be overlooked. That ability to look at things in a fresh way, he explained, can transform a good service member into a great one.
“I think the more diverse our military is, the stronger our military is… We need people from all different experiences and all different perspectives, because somebody is going to see that challenge or that problem in a way that I would never even think of… and that is what we need more of in the U.S. military.”
Beyond operational effectiveness, Talbott emphasized the social impact of visibility and leadership within the ranks. Fellow soldiers often approached him for guidance, seeing him as a trusted resource because of his transgender status.
“I can think of several instances in which I have been approached by fellow soldiers… I feel like you are a person I can come to if I have a problem with X, Y or Z… some people take my transgender status and designate me as a safe person, so to speak.”
With the arrival of Veterans Day, the Blade asked what he wishes the public knew about the sacrifices of transgender service members. His answer was modest.
“Every person who puts on the uniform is expected to make a tremendous amount of sacrifice,” Talbott said. “Who I am under this uniform should have no bearing on that… We shouldn’t be picking and choosing which veterans are worthy of our thanks on that day.”
Jennifer Levi, GLAD Law’s Senior Director of Transgender and Queer Rights, also spoke with the Blade and outlined the legal and human consequences of the ban. This is not Levi’s first time challenging the executive branch on transgender rights; she led the legal fight against the first Trump administration’s military ban in both Doe v. Trump and Stockman v. Trump.
Levi characterized the policy as overtly cruel and legally indefensible.
“This policy and its rollout is even more cruel than the first in a number of ways,” Levi explained. “For one, the policy itself says that transgender people are dishonest, untrustworthy and undisciplined, which is deeply offensive and degrading and demeaning.”
She highlighted procedural abuses and punitive measures embedded in the policy compared to the 2017 ban.
“In the first round the military allowed transgender people to continue to serve… In this round the military policy purge seeks to purge every transgender person from military service, and it also proposes to do it in a very cruel and brutal way, which is to put people through a process… traditionally reserved for kicking people out of the military who engaged in misconduct.”
Levi cited multiple examples of discrimination, including the revocation of authorized retirements and administrative barriers to hearings.
She also explained that the administration’s cost argument is flawed, as removing and replacing transgender service members is more expensive than retaining them.
“There’s no legitimate justification relating to cost… it is far more expensive to both purge the military of people who are serving and also to replace people… than to provide the minuscule amount of costs for medications other service members routinely get.”
On legal grounds, Levi noted the ban violates the Equal Protection Clause.
“The Equal Protection Clause prevents laws that are intended to harm a group of people… The doctrine is rooted in animus, which means a bare desire to harm a group is not even a legitimate governmental justification.”
When asked what she wishes people knew about Talbott and other targeted transgender military members, Levi emphasized their extraordinary service.
“The plaintiffs that I represent are extraordinary… They have 260 years of committed service to this country… I have confidence that ultimately, this baseless ban should not be able to legally survive.”
Other organizations have weighed in on Talbott v. Trump and similar lawsuits targeting transgender service members.
Human Rights Campaign Foundation President Kelley Robinson criticized the ban’s impact on military readiness and highlighted the counterintuitive nature of removing some of the country’s most qualified service members.
“Transgender servicemembers serve their country valiantly, with the same commitment, the same adherence to military standards and the same love of country as any of their counterparts,” Robinson said. “This ban by the Trump administration, which has already stripped transgender servicemembers of their jobs, is cruel, unpatriotic, and compromises the unity and quality of our armed forces.”
Lambda Legal Senior Counsel Sasha Buchert echoed the legal and moral imperative to reverse the policy.
“Every day this discriminatory ban remains in effect, qualified patriots face the threat of being kicked out of the military,” she said. “The evidence is overwhelming that this policy is driven by animus rather than military necessity… We are confident the court will see through this discriminatory ban and restore the injunction that should never have been lifted.”
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