National

Justice Dept. brief against DOMA lauded as ‘watershed moment’

Administration says law ‘unconstitutionally discriminates’

Published

14 years ago

July 6, 2011

LGBT rights supporters are heralding a recently filed legal brief against the Defense of Marriage Act — the first of its kind against the anti-gay law from the Obama administration — as a landmark document that will aid in bringing about the end of DOMA.

Filed on July 1 by the Justice Department, the 31-page brief argues that Section 3 of DOMA, which prohibits federal recognition of same-sex marriage, is unconstitutional because laws related to sexual orientation under precedent of the U.S. Supreme Court should be subject to heightened scrutiny, or must be shown to advance a significant government interest to stay on the books.

“Section 3 of the Defense of Marriage Act … unconstitutionally discriminates,” the brief states. “It treats married same-sex couples who are legally married under their states’ laws differently than similarly situated opposite-sex couples, denying them the status, recognition and significant federal benefits otherwise available to married persons.”

The Justice Department contends LGBT people are a suspect class, or a group likely subject to differential treatment, because they’ve been subject to a history of discrimination, they exhibit immutable characteristics, and they’re minorities with limited political power. Additionally, the brief contends sexual orientation bears no relation to a person’s ability to contribute to society.

The brief argues that Congress enacted DOMA in 1996 out of motivation “in substantial part by animus toward gay and lesbian individuals and their intimate relationships” and states Congress advanced no other material interest in passing the law.

Joe Solmonese, president of the Human Rights Campaign, said in a statement that the brief represents “a watershed moment” in the LGBT rights movement.

“Now the federal government has taken that historic stand a step further and put real meat on the bones of why there is no basis for DOMA to stand,” Solmonese said. “This step represents real leadership from the Obama administration and further hastens the day in which we will leave this odious law in the dustbin of history.”

Notably, the brief recalls the U.S. government’s role in discriminating against LGBT people in its description of the ways in which LGBT people have received different treatment over the course of history. The Justice Department recalls that former President Eisenhower signed an executive order adding “sexual perversion” as grounds for dismissal for federal employees.

“The federal government enforced Executive Order 10450 zealously, engaging various agencies in intrusive investigatory techniques to purge gays and lesbians from the civilian workforce,” the brief states. “The State Department, for example, charged ‘”skilled” investigators’ with ‘interrogating every potential male applicant to discover if they had any effeminate tendencies or mannerisms,’ used polygraphs on individuals accused of homosexuality who denied it, and sent inspectors to ‘every embassy, consulate and mission’ to uncover homosexuality.'”

The brief was filed in the case of Golinski v. U.S. Office of Personnel Management. Plaintiff Karen Golinski, a lesbian federal court employee, sought medical coverage for her spouse, but the U.S. government denied this coverage because of DOMA. The Justice Department asks the federal court not to dismiss this claim.

Tara Borelli, a Lambda Legal staff attorney who’s representing Golinski in the litigation, said the “very forthright way” that the brief looks at the history of discrimination against LGBT people from the U.S. government — as well as state and local governments — is particularly striking.

“It is a very honest look at the painful way that the government has discriminated against gay people and the toll that’s taken on our community,” Borelli said.

The Justice Department also responds to an earlier brief that the House, which was filed in defense of the law under the direction of Speaker John Boehner (R-Ohio). The brief was written by private attorney Paul Clement, whom Boehner hired to litigate on behalf of DOMA in the lawsuits against the anti-gay law.

At one point, the brief disputes the House’s claim that marriage should be left between one man and one woman because that union is the best situation for child-rearing.

“There is no sound basis for concluding that same-sex couples who have committed to marriages recognized by state law are anything other than fully capable of responsible parenting and child-rearing,” the brief states. “To the contrary, many leading medical, psychological and social welfare organizations have issued policies opposing restrictions on lesbian and gay parenting based on their conclusions, supported by numerous studies, that children raised by gay and parents are as likely to be well-adjusted as children raised by heterosexual parents.”

John Aravosis, the gay editor of AMERICAblog who drew attention to the anti-gay rhetoric in the first brief in supporting DOMA that came out of the Obama administration in 2009, said the language in the most recent Justice Department brief “looked pretty amazing.” Still, he criticized the administration for filing it late on a Friday night before a holiday weekend.

“Why didn’t the president announce the existence of this brief two days earlier when meeting with the community’s leaders in the White House to celebrate the Stonewall anniversary?” Aravosis said. “The brief appears to be quite historic, so why attempt to hide it? It’s hard not to conclude that this brief was intentionally buried by the administration in order to minimize mainstream media coverage.”

The Obama administration notified plaintiffs in a document June 3 that it intended to file a brief against DOMA in the Golinski case. Tracy Schmaler, a Justice Department spokesperson, said the decision to litigate against DOMA is consistent with U.S. Attorney General Eric Holder’s announcement on Feb. 23 that the Obama administration determined that the anti-gay law is unconstitutional.

Doug NeJaime, a gay law professor at Loyola Law School, said the Golinski brief marks the “fullest elaboration of the administration’s new position” on DOMA that Holder announced to Congress in a February letter.

“We had the Holder letter and now we have a whole brief sort of spitting out the arguments that Attorney General Holder made in that letter,” NeJaime said. “It’s a really substantial brief explaining why sexual orientation should get heightened equal protection, and it fits all of the main arguments that gay rights lawyers have been hitting and that are necessary for the court to find that there’s what the administration argues are a quasi-suspect classification.”

NeJaime added he expects similar briefs in other pending lawsuits challenging the constitutionality of DOMA: Gill v. OPM, Commonwealth of Massachusetts v. Department of Health & Human Services, Pedersen v. OPM and Windsor v. United States.

Observers say the Justice Department’s decision to take an active role in attacking DOMA in these lawsuits would make the courts more apt to declare the law unconstitutional.

Borelli said the brief from the Justice Department should prompt the courts to “look with even deeper suspicion” at DOMA.

“It should help hasten DOMA’s demise because it’s very powerful that the federal government admits that gay discrimination under the law is simply not suitable,” she said.

Similarly, NeJaime said the brief from the Obama administration gives the argument against the anti-gay law “a more objective and non-advocacy type flavor.”

“It’s not just the adversarial parties before the court, it’s actually the government now saying this is the proper way to analyze this, so I think it carries a lot of weight,” NeJaime said.

But whether the administration’s brief would mean a quicker end to DOMA remains in question. Advocates previously said they expect DOMA litigation to come to the Supreme Court in 2013.

NeJaime added the Obama administration’s position on DOMA may in fact mean the process for striking down DOMA could take longer.

“If anything it may have the effect of delaying the litigation because now we have the House involved as well, and so it actually makes the litigation a little more complicated, but I do think it’s something that favors the courts striking down and eventually getting this up to the Supreme Court,” NeJaime said.

Up Next

What would you ask the President?

Don't Miss

Dept. of Ed. to force changes at school district over anti-gay bullying suicide

FUND LGBTQ JOURNALISM

Federal Government

RFK Jr.’s HHS report pushes therapy, not medical interventions, for trans youth

‘Discredited junk science’ — GLAAD

Published

3 days ago

May 1, 2025

Christopher Kane

HHS Secretary Robert F. Kennedy Jr. (Washington Blade photo by Michael Key)

A 409-page report released Thursday by the U.S. Department of Health and Human Services challenges the ethics of medical interventions for youth experiencing gender dysphoria, the treatments that are often collectively called gender-affirming care, instead advocating for psychotherapy alone.

The document comes in response to President Donald Trump’s executive order barring the federal government from supporting gender transitions for anyone younger than 19.

“Our duty is to protect our nation’s children — not expose them to unproven and irreversible medical interventions,” National Institutes of Health Director Dr. Jay Bhattacharya said in a statement. “We must follow the gold standard of science, not activist agendas.”

While the report does not constitute clinical guidance, its findings nevertheless conflict with not just the recommendations of LGBTQ advocacy groups but also those issued by organizations with relevant expertise in science and medicine.

The American Medical Association, for instance, notes that “empirical evidence has demonstrated that trans and non-binary gender identities are normal variations of human identity and expression.”

Gender-affirming care for transgender youth under standards widely used in the U.S. includes supportive talk therapy along with — in some but not all cases — puberty blockers or hormone treatment.

“The suggestion that someone’s authentic self and who they are can be ‘changed’ is discredited junk science,” GLAAD President and CEO Sarah Kate Ellis said in a statement. “This so-called guidance is grossly misleading and in direct contrast to the recommendation of every leading health authority in the world. This report amounts to nothing more than forcing the same discredited idea of conversion therapy that ripped families apart and harmed gay, lesbian, and bisexual young people for decades.”

GLAAD further notes that the “government has not released the names of those involved in consulting or authoring this report.”

Janelle Perez, executive director of LPAC, said, “For decades, every major medical association–including the American Medical Association and the American Academy of Pediatrics–have affirmed that medical care is the only safe and effective treatment for transgender youth experiencing gender dysphoria.

“This report is simply promoting conversion therapy by a different name – and the American people know better. We know that conversion therapy isn’t actually therapy – it isolates and harms kids, scapegoats parents, and divides families through blame and rejection. These tactics have been used against gay kids for decades, and now the same people want to use them against transgender youth and their families.

“The end result here will be a devastating denial of essential health care for transgender youth, replaced by a dangerous practice that every major U.S. medical and mental health association agree promotes anxiety, depression, and increased risk of suicidal thoughts and attempts.

“Like being gay or lesbian, being transgender is not a choice, and no amount of pressure can force someone to change who they are. We also know that 98% of people who receive transition-related health care continue to receive that health care throughout their lifetime. Trans health care is health care.”

“Today’s report seeks to erase decades of research and learning, replacing it with propaganda. The claims in today’s report would rip health care away from kids and take decision-making out of the hands of parents,” said Shannon Minter, legal director of NCLR. “It promotes the same kind of conversion therapy long used to shame LGBTQ+ people into hating themselves for being unable to change something they can’t change.”

“Like being gay or lesbian, being transgender is not a choice—it’s rooted in biology and genetics,” Minter said. “No amount or talk or pressure will change that.”

Human Rights Campaign Chief of Staff Jay Brown released a statement: “Trans people are who we are. We’re born this way. And we deserve to live our best lives and have a fair shot and equal opportunity at living a good life.

“This report misrepresents the science that has led all mainstream American medical and mental health professionals to declare healthcare for transgender youth to be best practice and instead follows a script predetermined not by experts but by Sec. Kennedy and anti-equality politicians.”

The White House

Trump nominates Mike Waltz to become next UN ambassador

Former Fla. congressman had been national security advisor

Published

3 days ago

May 1, 2025

Michael K. Lavers

U.N. headquarters in New York (Washington Blade photo by Michael K. Lavers)

President Donald Trump on Thursday announced he will nominate Mike Waltz to become the next U.S. ambassador to the U.N.

Waltz, a former Florida congressman, had been the national security advisor.

Trump announced the nomination amid reports that Waltz and his deputy, Alex Wong, were going to leave the administration after Waltz in March added a journalist to a Signal chat in which he, Defense Secretary Pete Hegseth, and other officials discussed plans to attack Houthi rebels in Yemen.

“I am pleased to announce that I will be nominating Mike Waltz to be the next United States ambassador to the United Nations,” said Trump in a Truth Social post that announced Waltz’s nomination. “From his time in uniform on the battlefield, in Congress and, as my National Security Advisor, Mike Waltz has worked hard to put our nation’s Interests first. I know he will do the same in his new role.”

Trump said Secretary of State Marco Rubio will serve as interim national security advisor, “while continuing his strong leadership at the State Department.”

“Together, we will continue to fight tirelessly to make America, and the world, safe again,” said Trump.

Trump shortly after his election nominated U.S. Rep. Elise Stefanik (R-N.Y.) to become the next U.S. ambassador to the U.N. Trump in March withdrew her nomination in order to ensure Republicans maintained their narrow majority in the U.S. House of Representatives.

U.S. Federal Courts

Second federal lawsuit filed against White House passport policy

Two of seven plaintiffs live in Md.

Published

6 days ago

April 28, 2025

Michael K. Lavers

Lambda Legal on April 25 filed a federal lawsuit on behalf of seven transgender and nonbinary people who are challenging the Trump-Vance administration’s passport policy.

The lawsuit, which Lambda Legal filed in U.S. District Court for the District of Maryland in Baltimore, alleges the policy that bans the State Department from issuing passports with “X” gender markers “has caused and is causing grave and immediate harm to transgender people like plaintiffs, in violation of their constitutional rights to equal protection.”

Two of the seven plaintiffs — Jill Tran and Peter Poe — live in Maryland. The State Department, Secretary of State Marco Rubio, and the federal government are defendants.

“The discriminatory passport policy exposes transgender U.S. citizens to harassment, abuse, and discrimination, in some cases endangering them abroad or preventing them from traveling, by forcing them to use identification documents that share private information against their wishes,” said Lambda Legal in a press release.

Zander Schlacter, a New York-based textile artist and designer, is the lead plaintiff.

The lawsuit notes he legally changed his name and gender in New York.

Schlacter less than a week before President Donald Trump’s inauguration “sent an expedited application to update his legal name on his passport, using form DS-5504.”

Trump once he took office signed an executive order that banned the State Department from issuing passports with “X” gender markers. The lawsuit notes Schlacter received his new passport in February.

“The passport has his correct legal name, but now has an incorrect sex marker of ‘F’ or ‘female,'” notes the lawsuit. “Mr. Schlacter also received a letter from the State Department notifying him that ‘the date of birth, place of birth, name, or sex was corrected on your passport application,’ with ‘sex’ circled in red. The stated reason was ‘to correct your information to show your biological sex at birth.'”

“I, like many transgender people, experience fear of harassment or violence when moving through public spaces, especially where a photo ID is required,” said Schlacter in the press release that announced the lawsuit. “My safety is further at risk because of my inaccurate passport. I am unwilling to subject myself and my family to the threat of harassment and discrimination at the hands of border officials or anyone who views my passport.”

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.

Lambda Legal represented Zzyym.

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

Trump signed his executive order shortly after he took office in January. 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.

A federal judge in Boston earlier this month issued a preliminary injunction against the executive order. The American Civil Liberties Union filed the lawsuit on behalf of seven trans and nonbinary people.