National

Will Obama appeal DOMA court rulings?

Justice Dept. has until Oct. 12 to decide

Published

14 years ago

October 7, 2010

President Obama’s commitment to repealing the Defense of Marriage Act is likely to come under enhanced scrutiny next week when the U.S. Justice Department announces its decision on whether or not it will appeal federal court rulings against the statute.

Legal experts across the board are expecting the administration to appeal the decisions as many LGBT advocates grumble that the defense of DOMA in court undermines Obama’s campaign pledge to advocate for same-sex couples.

Richard Socarides, a gay New York attorney and former adviser to President Clinton, said he expects the Justice Department to appeal the cases because he believes the administration hasn’t shown any signs of changing its position after defending DOMA at the district court level.

“I think that they’re going to continue to battle the gay rights movement in the courts,” Socarides said. “I think it continues to be one of the most unfortunate decisions of the president’s entire first two years in office and really something that is perhaps the most troubling part of these first two years of his presidency.”

Socarides said he doesn’t think the administration is compelled to appeal the decisions to the U.S. First Circuit Court of Appeals even as he acknowledged that debate has taken place over whether the president can decide against upholding a federal statute.

“I think that it’s clear now that the president has the option of declining to defend laws that he believes are not constitutional,” Socarides said. “This law has now been declared unconstitutional, so he could agree with the federal district court … and choose not to defend it.”

Evan Wolfson, executive director of Freedom to Marry, also predicted the administration will appeal the decisions made in the DOMA cases because he believes Justice Department officials think they’re required to do so.

Still, Wolfson said the extent to which the Justice Department defends DOMA at the U.S. First Circuit Court of Appeals would be an appropriate gauge to determine the Obama administration’s commitment to supporting LGBT people.

“I think the Justice Department can argue they have to appeal, but they should not be trying to win at all costs, and they should urge the court to adopt a presumption of unconstitutionality for the cruel exclusion from marriage that they themselves admit is discrimination,” Wolfson said.

On July 8, U.S. District Court Judge Joseph Tauro ruled in two separate cases — Gill v. U.S. Office of Personnel Management and Commonwealth of Massachusetts v. U.S. Department of Health & Human Services — that the part of DOMA prohibiting federal recognition of same-sex marriage is unconstitutional.

The Obama administration defended DOMA when both those cases came before the U.S. District Court of Massachusetts.

In response to a query on the whether the administration would appeal the rulings, the White House deferred comment to the Justice Department, which didn’t respond.

The deadline for making a decision in the Commonwealth case — filed by Massachusetts Attorney General Martha Coakley — is Oct. 12.

The Justice Department doesn’t have to appeal the decision in the Gill case, filed by Gay & Lesbian Advocates & Defenders, until Oct. 18 because the court didn’t enter judgment in the case until later.

Still, Lee Swislow, GLAD’s executive director, said her organization is anticipating the Obama administration will announce its decision for both cases at the same time.

“From an efficiency point of view, the cases are clearly connected and it would make sense for the government to appeal both of them on the same day,” she said.

Announcing a decision to appeal both cases at the same time would also limit the amount of negative press the White House would receive to one day as opposed to stringing out criticism over a series of days.

Swislow said she’s expecting the administration to appeal both lawsuits and said doing so means the Justice Department is doing its duty of defending federal laws.

“I don’t think you can read much into it in terms of the administration’s support in general of LGBT rights,” she said. “From a legal point of view, they have to defend the law or write an official letter to Congress on why they’re not appealing.”

After the Justice Department appeals the decisions to the First Circuit, Swislow said she expects a series of briefs will be filed to the appellate court on both sides, including friend-of-the-court briefs from supporters and opponents of DOMA.

Once oral arguments take place, those involved with the litigation will await the decision of the court.

“We could have a decision anywhere from a year from now to a year-and-a-half from now if they follow their average, and that’s all we have to go on is how long it usually takes at the First Circuit court,” Swislow said.

Once the First Circuit has made its rulings, Swislow said deciding whether or not to appeal the case further to the U.S. Supreme Court would be different for the Obama administration.

Swislow said Justice Department officials could say they’ve “done their job” and not challenge the ruling further — even as she acknowledged her organization would love a win for the cases at the Supreme Court.

“If we win at the First Circuit Court of Appeals, the question of whether to take it to the Supreme Court or not, I think, is a different calculation,” she said.

Even as many LGBT rights supporters bemoan the administration’s defense of DOMA, others say continued support for the law in court could have some advantages.

Defenders of the Obama administration have said defending anti-gay laws such as DOMA sets a precedent that would prevent future administrations from allowing litigation against pro-laws to go unchallenged.

In an article about the future of litigation against “Don’t Ask, Don’t Tell,” Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network, was quoted last week in Politico as suggesting the administration’s defense of the law in court would allow the federal hate crimes law to stay on the books.

“What happens when there’s a legal challenge to, say, hate crimes [law] in a next administration, a possible Republican administration?” Sarvis reportedly said. “Will they defend the federal statute?”

Swislow expressed similar beliefs that defending DOMA would set a precedent for subsequent administrations that could be hostile to LGBT rights.

“We expect them to defend this case and we’re not mad at them for defending this case, and, yes, the process of the Justice Department — that mandate, really — to defend the law can help us,” she said.

But Socarides scoffed at the notion that defending laws like DOMA would keep pro-gay laws safe under future administrations.

“I know that a lot of people make it in defense of the administration, but to me, it’s an entirely ludicrous argument,” Socarides said. “That argument turns all logic on its head. We’re not going to defend civil rights because some day the Republicans may choose not to defend civil rights.”

In another respect, appealing the lawsuits to the First Circuit could be beneficial to same-sex couples throughout New England because the higher court has jurisdiction over more states.

A favorable ruling at the First Circuit could invalidate part of DOMA for not just married same-sex couples in Massachusetts, but also couples living in Connecticut, Vermont and New Hampshire.

Swislow said an appeal of the DOMA cases is “really in our interest” because a victory only at the district court level would “only affect our particular plaintiffs” and not anyone else.

“It’s much better, in fact, to have the case appealed so that the victory in the appellate court … affects the First Circuit [and] a victory in the Supreme Court affects the whole country,” she said.

Doug NeJaime, a gay law professor at Loyola Law School, also said an appeal in the GLAD case could be beneficial to married same-sex couples across the nation because of the strong case made by plaintiffs.

“This is a very carefully and limited challenge seeking some federal recognition of married same-sex couples, but only affecting states where couples are allowed to actually enter into marriages that are recognized,” NeJaime said. “So, I think this would actually be a good issue to have work its way up the appellate chain.”

Still, Socarides said the Obama administration shouldn’t be considered a friend to the LGBT community for appealing the lawsuits because the president hasn’t said he’s appealing them for the purpose of having a stronger ruling.

“If the United States came back and said we believe this is unconstitutional, but we’re going to appeal it because we want a ruling from a court of appeals declaring it unconstitutional, that would be terrific, but they don’t say that, do they?” he said.

(Obama photo is a Blade file photo by Michael Key)

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U.S. Federal Courts

Federal judge hears case that challenges Trump passport executive order

State Department no longer issues passports with ‘X’ gender markers

Published

1 day ago

March 26, 2025

Michael K. Lavers

A federal judge in Boston on Tuesday heard oral arguments in a lawsuit against President Donald Trump’s executive order that bans the State Department from issuing passports with “X” gender markers.

Ashton Orr, Zaya Perysian, Sawyer Soe, Chastain Anderson, Drew Hall, Bella Boe, and Reid Solomon-Lane are the plaintiffs in the class action lawsuit the American Civil Liberties Union, the ACLU of Massachusetts, and the private law firm Covington & Burling LPP filed in U.S. District Court for the District of Massachusetts. The lawsuit names Trump and Secretary of State Marco Rubio as defendants.

Former Secretary of State Antony Blinken in June 2021 announced the State Department would begin to issue gender-neutral passports and documents for American citizens who were born overseas.

Dana Zzyym, an intersex U.S. Navy veteran who identifies as nonbinary, in 2015 filed a federal lawsuit against the State Department after it denied their application for a passport with an “X” gender marker. Zzyym in October 2021 received the first gender-neutral American passport.

The State Department policy took effect on April 11, 2022.

Trump signed the executive order that overturned it shortly after he took office. Rubio later directed State Department personnel to “suspend any application requesting an ‘X’ sex marker and do not take any further action pending additional guidance from the department.”

“Even before Donald Trump was inaugurated, it was clear to me he wanted to control the lives and identities of transgender people like myself,” said Orr, a transgender man who lives in West Virginia, in a press release the ACLU released before U.S. District Judge Julia Kobick heard the case. “Like many others, I rushed to update my passport hoping I could get an accurate version. Now, the State Department has suspended my application and withheld all my documents from me, including my passport, my birth certificate, and even my marriage license.”

Li Nowlin-Sohl, a staff attorney for the ACLU’s LGBTQ and HIV Project, described the Trump-Vance administration’s passport policy as “openly discriminatory and animated by a transparent desire to drive transgender people out of public life altogether.”

Germany, Denmark, Finland, and the Netherlands are among the countries that have issued travel advisories for trans and nonbinary people who plan to visit the U.S.

WorldPride is scheduled to take place in D.C. from May 17-June 8. InterPride, the organization that coordinates WorldPride events, on March 12 issued its own travel advisory for trans and nonbinary people who want to travel to the U.S.

It is unclear when Kobick will issue her ruling.

Federal Government

Trump ‘culture war’ complicates HUD’s distribution of $3.6B in housing grants

Senate Dems call for new agreements

Published

2 days ago

March 25, 2025

Christopher Kane

U.S. Sen. Adam Schiff (D-Calif.) (Washington Blade photo by Michael Key)

The disbursement of more than $3.6 billion in federal grants to housing providers has been paused for weeks while the U.S. Department of Housing and Urban Development seeks to condition receipt of the funding on compliance with President Donald Trump’s executive actions targeting DEI and transgender and immigrant communities.

March 4 was the statutory deadline for the agency to distribute the funds, which come through the Continuum of Care Program in support of local governments and nonprofit organizations working to promote “a community-wide commitment to the goal of ending homelessness.”

On March 13, a group of Senate Democrats led by U.S. Sens. Adam Schiff (Calif.) and Tina Smith (Minn.) wrote to HUD Secretary Scott Turner urging him to move quickly on distributing the grants and warning of the consequences that recipients are now facing and the harm they will encounter in the future if delays persist.

“To keep the lights on, providers are now being forced to draw on lines of credit at significant cost and risk to their organizations,” the senators said. “These projects enable homeless service providers to help veterans, families with children, youth, seniors, and vulnerable individuals access permanent and temporary housing, crisis counseling, and other supportive services.”

HUD subsequently disseminated grant agreements — and Schiff published an example on his office’s website — that included, among other provisions, language stipulating that the awardee (1) “shall not use grant funds to promote ‘gender ideology,’ as defined in E.O. 14168, Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” (2) certifies that it does not operate any programs promoting diversity, equity, and inclusion that violate any applicable Federal anti-discrimination laws, and (3) agrees not to use “that funding in a manner that by design or effect facilitates the subsidization or promotion of illegal immigration or abets so-called ‘sanctuary’ policies that seek to shield illegal aliens from deportation.”

On March 14, the 4th U.S. Court of Appeals stayed a nationwide injunction enjoining three parts of Trump’s executive order on DEI, and the following day, HUD rescinded the CoC contracts and said to expect new agreements within a week as the agency was “working to revise its CoC grant agreements to be consistent with Federal law and compliant with applicable court orders.”

Schiff then led a second letter to Turner on March 19 with the Senate Democratic Leader Chuck Schumer (N.Y.) and U.S. Sens. Alex Padilla (D-Calif.), Martin Heinrich (D-N.M.), Ron Wyden (D-Ore.), Mazie Hirono (D- Hawaii), and Richard Blumenthal (Conn.).

“We urge the department to immediately issue new CoC grant agreements consistent with longstanding practice— free of the aforementioned conditions— to ensure all individuals experiencing homelessness receive protection and support, regardless of gender identity, location, or other characteristics,” they said, requesting a response by March 31.

“The initial FY2024 grant agreements issued to CoC funding recipients contained new requirements that are deeply problematic, and likely unlawful, requirements,” the senators argued. “These mandates, such as barring shelters from serving transgender people, prohibiting DEI initiatives, and certifying that they do not support ‘sanctuary’ policies protecting noncitizens, conflict with federal civil rights, fair housing, and immigration laws, raising serious legal and constitutional concerns.”

The lawmakers noted “the harm caused by these delayed and unfulfilled CoC grant agreements will fall disproportionately on our most vulnerable populations, including women, families with children, youth, veterans, survivors of domestic and intimate partner violence, people with disabilities, and LGBTQ+ individuals.” They added, “Women experiencing homelessness — many of whom are fleeing domestic abuse — already face significant barriers to safety and stability, and restricting access to critical housing services will only further endanger their lives and well-being.”

Citing research that nearly one in three transgender Americans has experiences homelessness in their lives, Schiff and his colleagues stressed that “Transgender and nonbinary people in the U.S. face significant barriers to securing safe housing, with many experiencing homelessness and high rates of mistreatment and violence in shelters.”

With respect to the language in the agreements about “sanctuary” policies, the senators wrote “The organizations receiving CoC funds exist to provide critical, non-discriminatory aid to those in need, regardless of their immigration status. These organizations do not set or enforce immigration policy — they simply fulfill their legal duty to provide life-saving and life-changing care.”

Later on March 19, HUD began issuing new contracts that did not contain the provision concerning DEI but did include the same language about “gender ideology” and “sanctuary” policies.

U.S. Federal Courts

Court halts removal of two transgender service members

Case challenging anti-trans military ban proceeds in D.C.

Published

3 days ago

March 24, 2025

Christopher Kane

Laila and Logan Ireland (Photo courtesy of the couple)

A federal court in New Jersey issued a temporary restraining order on Monday that will halt the separation of two transgender service members from the U.S. military while their case in D.C. challenging the Trump-Vance administration’s ban moves forward.

The order by Judge Christine O’Hearn pauses proceedings against Staff Sgt. Nicholas Bear Bade and Master Sgt. Logan Ireland, who “have been pulled from key deployments and placed on administrative absence against their will because of the ban,” according to a joint press release Monday by the National Center for Lesbian Rights and GLAD Law, which are representing the service members together with other litigants in Ireland v. Hegseth and in the case underway in the U.S. District Court for the District of Columbia, Talbott v. Trump.

“That court granted a preliminary injunction March 18 barring the Department of Defense from implementing the ban, finding that it discriminates based on sex and transgender status; that it is ‘soaked in animus;’ and that, due to the government’s failure to present any evidence supporting the ban, it is ‘highly unlikely’ to survive any level of judicial review,” the groups noted in their press release.

Ireland spoke with the Washington Blade in January along with other trans service members and former service members who shared their experiences with the military and their feelings on the new administration’s efforts to bar trans people from the U.S. armed forces.