National
BREAKING: Boehner appeals DOMA cases to Supreme Court
Appeals court found anti-gay law unconstitutional
House Speaker John Boehner’s (R-Ohio) attorneys on Friday formally appealed to the U.S. Supreme Court an appeals court decision determining the Defense of Marriage Act was unconstitutional.
Drew Hammill, spokesperson for House Minority Leader Nancy Pelosi (D-Calif.), told the Washington Blade on Friday afternoon Republicans had notified Democratic leadership that House counsel filed an appeal to the Supreme Court.
The court ruling that was appealed was the First Circuit Court of Appeals decision in the cases of Gill v. Office of Personnel Management, which was filed by Gay & Lesbian Advocates & Defenders, and Commonwealth of Massachusetts v. Department of Health & Human Services. On May 31, the appellate court issued a decision that Section 3 of DOMA, which prohibits federal recognition of same-sex marriage, was unconstitutional as a result of both cases.
In a statement, Pelosi slammed Boehner for continuing to assert the constitutionality of DOMA, saying the appeal is a decision that will “waste more taxpayer funds to advance a position rejected by four different courts and to defend discrimination and inequality before the highest court in the land.”
“Democrats have rejected the Republican assault on equal rights, in the courts and in Congress,” Pelosi said. “We believe there is no federal interest in denying LGBT couples the same rights and responsibilities afforded to all couples married under state law. And we are confident that the Supreme Court, if it considers the case, will declare DOMA unconstitutional and relegate it to the dustbin of history once and for all.”
Boehner’s office didn’t immediately respond to a request to comment on the appeal.
In the filing, Boehner’s attorneys present two questions to the Supreme Court: (1) Whether Section 3 of the Defense of Marriage Act violates the equal protection component of the Due Process Clause of the Fifth Amendment; and (2) Whether the court below erred by inventing and applying to Section 3 of the Defense of Marriage Act a previously unknown standard of equal protection review.
“As the First Circuit recognized, this case calls out for this Court’s review,” the filing states. “The court of appeals has invalidated a duly-enacted Act of Congress and done so even though it acknowledged both that DOMA satisfies ordinary rational basis review and does not implicate heightened scrutiny. In the established world of equal protection law that result should have been impossible.”
The filing also cites a separation of powers issue as the result of the Obama administration no longer defending DOMA in court as it continues to enforce it and leaves the House to defend the law.
“Only this Court can settle this matter definitively,” the filing states. “Unless and until this Court decides the question, the executive branch will continue to attack DOMA in the courts, while continuing to enforce it, thus creating more potential litigation for the House to defend. This Court and this Court alone has the power to settle this question and redirect controversy over this important national question to the democratic process.”
Additionally, the filing argues the First Circuit ruling conflicts with Baker v. Nelson, a case related to same-sex marriage that the Supreme Court declined to hear in 1972.
Now that Boehner’s attorneys have filed an appeal, there will be 30 days for plaintiffs to file an opposition to the motion. It would then be left to the court to decide whether to grant cert, or hear the case. There isn’t a timeline for that, but it won’t happen while the court is in summer recess.
LGBT advocates also had harsh words for Boehner over his continued defense of DOMA.
Evan Wolfson, president of Freedom to Marry, called Boehner’s appeal “shameful” and said it’s time for him to “respect basic American values of equal protection under the law.”
“Same-sex couples have waited long enough for the federal government to treat their lawful marriages with the respect and fairness every American wants and deserves, especially in tough economic times,” Wolfson said. “Judges appointed by Presidents Nixon, Reagan, Clinton, ‘Bush 1,’ and ‘Bush 2,’ among others, have all agreed that there should be no ‘gay exception’ to the normal practice of the federal government honoring the marriages celebrated in the states, and providing the 1138-plus federal protections and responsibilities accorded all other married couples.”
In February 2011, the Obama administration announced it would no longer defend DOMA in court. After the decision, Boehner convened the House Bipartisan Legal Advisory Group, which voted 3-2 on a party-line basis to take up defense of DOMA in the administration’s stead.
To assist House general counsel Kerry Kircher in defending DOMA, Boehner hired Paul Clement, a former U.S. solicitor general under President George W. Bush. The cost cap to pay for House expenses in defending the law was set at $1.5 million.
Meanwhile, the Justice Department has filed legal briefs in favor of lawsuits against DOMA and sent Stuart Delery, who’s gay and the Justice Department’s acting assistant attorney general for the civil division, to make the case against the law in oral arguments.
Six federal courts have found that DOMA is unconstitutional as a result of cases filed by LGBT advocates. The ruling against DOMA in the First Circuit was the highest court to date to weigh in against the anti-gay law.
A White House spokesperson deferred comment to the Justice Department, which declined to comment.
NOTE: This article has been updated
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.
The White House
Trump travels to Middle East countries with death penalty for homosexuality
President traveled to Saudi Arabia, Qatar, and United Arab Emirates
Homosexuality remains punishable by death in two of the three Middle East countries that President Donald Trump visited last week.
Saudi Arabia and Qatar are among the handful of countries in which anyone found guilty of engaging in consensual same-sex sexual relations could face the death penalty.
Trump was in Saudi Arabia from May 13-14. He traveled to Qatar on May 14.
“The law prohibited consensual same-sex sexual conduct between men but did not explicitly prohibit same-sex sexual relations between women,” notes the State Department’s 2023 human rights report, referring specifically to Qatar’s criminalization law. “The law was not systematically enforced. A man convicted of having consensual same-sex sexual relations could receive a sentence of seven years in prison. Under sharia, homosexuality was punishable by death; there were no reports of executions for this reason.”
Trump on May 15 arrived in Abu Dhabi, the capital of the United Arab Emirates.
The State Department’s 2023 human rights report notes the “penalty for individuals who engaged in ‘consensual sodomy with a man'” in the country “was a minimum prison sentence of six months if the individual’s partner or guardian filed a complaint.”
“There were no known reports of arrests or prosecutions for consensual same-sex sexual conduct. LGBTQI+ identity, real or perceived, could be deemed an act against ‘decency or public morality,’ but there were no reports during the year of persons prosecuted under these provisions,” reads the report.
The report notes Emirati law also criminalizes “men who dressed as women or entered a place designated for women while ‘disguised’ as a woman.” Anyone found guilty could face up to a year in prison and a fine of up to 10,000 dirhams ($2,722.60.)
Trump returned to the U.S. on May 16.
The White House notes Trump during the trip secured more than $2 trillion “in investment agreements with Middle Eastern nations ($200 billion with the United Arab Emirates, $600 billion with Saudi Arabia, and $1.2 trillion with Qatar) for a more safe and prosperous future.”
Former President Joe Biden traveled to Saudi Arabia in 2022.
Saudi Arabia is scheduled to host the 2034 World Cup. The 2022 World Cup took place in Qatar.
State Department
Rubio mum on Hungary’s Pride ban
Lawmakers on April 30 urged secretary of state to condemn anti-LGBTQ bill, constitutional amendment
More than 20 members of Congress have urged Secretary of State Marco Rubio to publicly condemn a Hungarian law that bans Pride events.
California Congressman Mark Takano, a Democrat who co-chairs the Congressional Equality Caucus, and U.S. Rep. Bill Keating (D-Mass.), who is the ranking member on the House Foreign Affairs Committee’s Europe Subcommittee, spearheaded the letter that lawmakers sent to Rubio on April 30.
Hungarian lawmakers in March passed a bill that bans Pride events and allow authorities to use facial recognition technology to identify those who participate in them. MPs last month amended the Hungarian constitution to ban public LGBTQ events.
“As a NATO ally which hosts U.S. service members, we expect the Hungarian government to abide by certain values which underpin the historic U.S.-Hungary bilateral relationship,” reads the letter. “Unfortunately, this new legislation and constitutional amendment disproportionately and arbitrarily target sexual and gender minorities.”
Prime Minister Viktor Orbán’s government over the last decade has moved to curtail LGBTQ and intersex rights in Hungary.
A law that bans legal recognition of transgender and intersex people took effect in 2020. Hungarian MPs that year also effectively banned same-sex couples from adopting children and defined marriage in the constitution as between a man and a woman.
An anti-LGBTQ propaganda law took effect in 2021. The European Commission sued Hungary, which is a member of the European Union, over it.
MPs in 2023 approved the “snitch on your gay neighbor” bill that would have allowed Hungarians to anonymously report same-sex couples who are raising children. The Budapest Metropolitan Government Office in 2023 fined Lira Konyv, the country’s second-largest bookstore chain, 12 million forints ($33,733.67), for selling copies of British author Alice Oseman’s “Heartstopper.”
Former U.S. Ambassador to Hungary David Pressman, who is gay, participated in the Budapest Pride march in 2024 and 2023. Pressman was also a vocal critic of Hungary’s anti-LGBTQ crackdown.
“Along with years of democratic backsliding in Hungary, it flies in the face of those values and the passage of this legislation deserves quick and decisive criticism and action in response by the Department of State,” reads the letter, referring to the Pride ban and constitutional amendment against public LGBTQ events. “Therefore, we strongly urge you to publicly condemn this legislation and constitutional change which targets the LGBTQ community and undermines the rights of Hungarians to freedom of expression and peaceful assembly.”
U.S. Reps. Pramila Jayapal (D-Wash.), Sarah McBride (D-Del.), Jim Costa (D-Calif.), James McGovern (D-Mass.), Gerry Connolly (D-Va.), Summer Lee (D-Pa.), Joaquin Castro (D-Texas), Julie Johnson (D-Texas), Ami Bera (D-Calif.), Mark Pocan (D-Wis.), Lloyd Doggett (D-Texas), Becca Balint (D-Vt.), Gabe Amo (D-R.I.), Ted Lieu (D-Calif.), Robert Garcia (D-Calif.), Dina Titus (D-Nev.), Raja Krishnamoorthi (D-Ill.), Jan Schakowsky (D-Ill.) and Mike Quigley (D-Ill.) and Del. Eleanor Holmes Norton (D-D.C.) signed the letter alongside Takano and Keating.
A State Department spokesperson on Wednesday declined to comment.
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Calendar: May 16-22
