National
High stakes in marriage cases awaiting Supreme Court
Legal experts weigh in on what to expect next week
The U.S. Supreme Court could decide as soon as next week whether it’ll hear cases related to DOMA and Proposition 8. (Washington Blade file photo by Michael Key)
All eyes will be on the U.S. Supreme Court next week when it could announce whether it will take up high-profile LGBT-related cases challenging the Defense of Marriage Act and California’s Proposition 8 — and the results of those decisions could have an immediate impact on the marriage rights of same-sex couples.
On Monday, justices are scheduled to hold their first conference to decide cases they will consider when they reconvene in October following their summer recess. Among the cases docketed for this meeting is federal litigation challenging Prop 8, now known as Hollingsworth v. Perry, and one of the cases challenging Section 3 of DOMA, Windsor v. United States.
Justices can decide to take up a case, decline to hear it or put off the decision on considering the lawsuit for a future conference. It takes a vote of four justices to grant a writ of certiorari (to take up a case) but the decision will be put off if any one justice wants more time to decide.
The decision on the Prop 8 case is of particular note because if the court decides against taking up the case and lets stand an appeals court decision against the same-sex marriage ban, gay couples would once again have the right to marry in the nation’s most populous state immediately following a mandate from the U.S. Ninth Circuit of Appeals.
But if the Supreme Court decides to take up the case, the ban would remain in effect until the justices make their own ruling in the lawsuit. It’s possible the court could make a decision saying lower courts erred in overturning Prop 8. For the same-sex marriage ban to come to an end at that point, another lawsuit coming up from the district courts or repeal of Prop 8 at the ballot would be necessary.
Jennifer Pizer, legal director for the Williams Institute, said while she thinks the court is likely to take up cases related to DOMA, it’s a “much harder guess” whether justices will decide to hear the Prop 8 litigation.
“There might well be four justices that disagree with what the Ninth Circuit held, but I think it would be challenging for them probably — as it is for everybody else who’s watching the court — to wonder where a fifth vote might go,” Pizer said. “So I think it’s even odds that the court will not review in Perry.”
Jon Davidson, legal director for Lambda Legal, said in the event that the Supreme Court decides not to hear the Prop 8 case, gay couples should wait for the mandate from the Ninth Circuit before marrying in California.
“My advice to people is plan a nice wedding as opposed to running that day to go get married because there’s always some risk for couples that get married and 10 years split up, one might say, ‘You didn’t really get legally married because the injunction wasn’t in place yet and Prop 8 was still the law and they shouldn’t have married us,'” Davidson said. “Although I think that argument would lose, people don’t need to take on potentially having to fight about that later. If they just wait until the mandate, there won’t be any question.”
There could be an advantage for the LGBT community if the Supreme Court takes up the lawsuit because it could produce a ruling that would affect not only California, but all states with same-sex marriage bans throughout the country. Still, this level of examination bring a new scope of review to the Prop 8 lawsuit because the Ninth Circuit was limited in the way it restricted its reasoning to California.
Pizer said the Supreme Court could rule with a larger scope when considering the constitutionality of Prop 8, but such an evaluation would be unlikely given the limited nature of the Ninth Circuit ruling.
“I think it’s extremely unlikely that there would be a ruling either calling in question all the marriage restrictions of all the states that have them, or on the flip-side, holding that marriage absolutely as a matter of federal law must be restricted just to different-sex couples,” Pizer said. “The things that could be done on the more extreme ends of something favorable or unfavorable to same-sex couples is not so likely.”
The situation is slightly different for the DOMA lawsuits because the Windsor case is the only one that has been fully briefed and docketed for the Sept. 24 conference. The court may not issue a decision on reviewing DOMA until the full range of lawsuits challenging the anti-gay law have been scheduled for consideration.
More DOMA-related cases haven’t yet been set for consideration even though the high court has been asked to consider them. They’re the consolidated case of Gill v. Office of Personnel Management and Commonwealth of Massachusetts v. Department of Health & Human Services, the only lawsuit in which an appeals court has ruled against DOMA, as well as Golinski v. Office of Personnel Management and Pedersen v. Office of Personnel Management.
Davidson said the Supreme Court could also wait to make a decision on whether to hear the Prop 8 lawsuit until making a decision on whether to hear the DOMA cases.
“Different issues in the cases, but they might say, ‘Well, let’s think about all these at the same time to think about whether we should grant review in both kinds of cases or one, and which order,” Davidson said.
As with the Prop 8 case, if the Supreme Court decided against hearing the DOMA cases, it would have significant immediate impact. The federal government would recognize the same-sex marriages of states within the jurisdiction of the First Circuit and other challenges against DOMA would continue up the pipeline.
But the court is widely expected to decide to take up the constitutionality of DOMA because unlike Prop 8, the issue is related to federal law and the U.S. Justice Department has interceded — first in July and again this month — to ask the court to take up each of the four cases pending before the court related to the law. And a ruling from the Supreme Court would almost certainly have a nationwide scope that would enable federal recognition of same-sex marriages throughout the country as opposed to a ruling that would affect only one state.
There’s another benefit to the LGBT community if the Supreme Court were to take up the cases: the application of higher standard of review for cases related to sexual orientation. The Golinski and Pedersen cases are unique among the other DOMA lawsuits because they are the only ones in which lower courts have ruled against DOMA on the basis that they don’t meet the standards of heightened scrutiny, or the assumption they’re unconstitutional. If the Supreme Court were to consider these cases along with other DOMA cases, it could set precedent for applying heightened scrutiny to other laws in the future.
A Supreme Court ruling in favor of the anti-gay side would be significantly burdensome for supporters of same-sex marriage. That would mean opponents of the law would have to fight through the legislative process to lift the ban — a daunting task especially if Republicans were to retain control of the House.
Justices also have an opportunity in taking up the DOMA cases to assert whether the House Republican-led Bipartisan Legal Advisory Group, which took up defense of DOMA after the Obama administration declined to defend the law, has standing to defend it. Some lower courts have hinted BLAG may lack standing to defend DOMA because it’s a committee within the House that hasn’t been approved by a floor vote in either chamber of Congress.
Doug NeJaime, who’s gay and a law professor at Loyola Law School, said the role of BLAG and where the committee derives its authority presents an interesting question to the Supreme Court.
“It would be interesting to see whether the justices actually ask those threshold questions about what the status and standing of BLAG actually is,” NeJaime said. “Because both sides want a substantive determination, I think that’s partly why we haven’t seen it become a huge issue, but it is an interesting question.”
It’s unclear what the schedule will be like for the cases if the Supreme Court decides to take them up. Briefings would ensue in the months that follow and oral arguments may take place in the spring for the court to make a ruling before it adjourns in June. For the DOMA lawsuit, the Supreme Court may take up the cases, but decline to take action until more appellate courts have made decisions on the pending litigation.
Pizer said the Supreme Court may seek to hear arguments on the Prop 8 cases at the same time because they’re both related to marriage.
“The DOMA cases are quite distinct from Perry, but at the same time, they concern marriage for same-sex couples, and certainly some of the arguments made in all these cases resemble, so it wouldn’t be that surprising for the justices to decide to consider a number of them at the same time,” Pizer said.
Legal experts also say the votes of each of the justices in granting a writ of certiorari shouldn’t be an indication of how they’ll ultimately rule in each of the cases.
NeJaime said observers “can’t read too much into” the certiorari votes because justices may decide to take up the cases either because they want to uphold or strike down the laws at hand.
“I think there are clearly going to be justices, for instance, on the DOMA cases that want to take it to overturn, and will overturn DOMA, and, I think, there are justices that want to take it and would uphold DOMA, so I think it’s hard to tell, although I think the DOMA cases are the stronger cases for the LGBT side,” NeJaime said.
Other LGBT cases pending before the Supreme Court are scheduled for September conference, but they aren’t as high-profile as the marriage cases. Justices will consider whether to take up the case of Diaz v. Brewer, in which Gov. Jan Brewer (R) has appealed an injunction placed by a district court prohibiting her from enforcing a law taking away domestic partner benefits from Arizona state employees. Another pending case is National Organization for Marriage v. McKee, in which the anti-gay organization is challenging Maine disclosure laws requiring it to reveal donors regarding its involvement in the 2009 marriage ballot initiative in the state.
Federal Government
Protesters say SAVE Act targets voters, transgender youth
Bill described as ‘Jim Crow 2.0’
Members of Congress, advocates, and people from across the country gathered outside the U.S. Capitol on Tuesday to protest proposed federal legislation that voting rights activists have deemed “Jim Crow 2.0.”
The Safeguard American Voter Eligibility (SAVE) Act would amend the National Voter Registration Act of 1993 to require in-person proof of citizenship for anyone seeking to vote in U.S. elections.
President Donald Trump has also pushed for the proposed legislation to include a section that would ban gender-affirming medical care for transgender minors, even with parental consent, and prohibit trans people from participating in school or professional sports consistent with their gender identity rather than their sex assigned at birth.
In addition to changing voter registration requirements, the bill would limit acceptable forms of identification to documents such as a birth certificate or passport — records that the Brennan Center for Justice estimates more than 21 million Americans do not have — effectively restricting access to the ballot. It would also ban online voter registration, DMV voter registration efforts, and mail-in voter registration.
A 2021 investigation by the Associated Press found that fewer than 475 people voted illegally or improperly, a tiny fraction of the estimated 160 million Americans who voted in the 2020 election.
Senate Minority Leader Chuck Schumer (D-N.Y.) spoke at the event.
“It will kick millions of American citizens off the rolls. And they don’t even require you to be told,” the highest-ranking Democrat in the Senate told protesters and reporters outside the Capitol. “If this law passes — and it won’t — you’re gonna show up in November … and they’ll say… sorry, you’re no longer on the voting rolls.”
He, like many other speakers, emphasized the bill in the context of American history, pointing to what he described as its racist roots and its impact on Black and brown Americans.
“I have called this act, over and over again, Jim Crow 2.0 … because they know it’s the truth.”
U.S. Sen. Alex Padilla (D-Calif.) was one of the lawmakers leading opposition to the legislation and spoke at the rally.
“It’s not just voting rights that are on the line — our democracy is on the line,” the California lawmaker said. “It’s not a voter I.D. bill. It’s a bait and switch bill.”
He added historical context, noting the significance of voting rights legislation passed more than 60 years ago. In 1965, Alabama civil rights activists marched to protest barriers to voter registration. Alabama state troopers violently attacked peaceful demonstrators at the Edmund Pettus Bridge in Selma, using tear gas, clubs, and whips against more than 500 — mostly Black — protesters.
“61 years ago — not to the day — but this week, President Lyndon Johnson came to the Capitol and addressed a joint session of Congress in the wake of Bloody Sunday and pushed Congress to pass the Voting Rights Act,” Padilla said. “61 years later, Donald Trump and this Republican majority wants to take us backwards. We’re not gonna let that happen.”
U.S. Sen. Ben Ray Luján (D-N.M.) also spoke, emphasizing that he views the effort as a Republican-led and Trump-backed attempt to restrict voting access, particularly among Black, brown, and predominantly Democratic communities.
“President Trump told Republicans when they were meeting behind closed doors that ‘The SAVE Act will guarantee Republicans win the midterms and ensure they do not lose an election for 50 years,’” Luján said. “The first time I think Donald Trump’s been honest … This voter suppression bill is only that. Taking away vote by mail? I hope my Republican colleagues from states that voted for Donald Trump or where vote by mail is popular have the courage and the backbone to stand up and say no to this nonsense, because their constituents are going to push back.”
U.S. Sen. Lisa Blunt Rochester (D-Del.) also spoke.
“Our Republican colleagues have already cut Medicaid, Medicare, people don’t know how they’re gonna be able to afford energy,” she said, providing context for the broader political moment. “We’re in the middle of a war that they can’t even get straight while we’re in it and don’t have a way to get out of it. And we are now faced with defending our democracy?”
She then showed the crowd something that she said has been with her throughout her political journey in Washington.
“I brought with me something that I carried on the day that I was sworn into the House of Representatives when I was elected in 2016, and I carried it with me on the day that I was sworn in as United States senator. And I also carried it with me when I was trapped up in the gallery on Jan. 6 and all I could think to do was pray … This document allowed my great great great grandfather, who had been enslaved in Georgia, to have the right to vote. We took this and turned it into a scarf. It is the returns of qualified voters and reconstruction code from 1867. This is my proof of what we’ve been through. This is also our inspiration.”
“I got to travel between the Edmund Pettus Bridge two times. And even as I thought about this moment, I recognized that while we wish we weren’t in it, while we don’t know why we’re in it, I do know we were made for it … So I came today to tell you that, um, just like the leader said, that he calls it Jim Crow 2.0. I call it Jim Crow 2.NO.”
Kelley Robinson, president of the Human Rights Campaign, the largest LGBTQ advocacy organization in the U.S., also spoke, highlighting the impact of the bill’s proposed provisions affecting trans people.
“This bill is not about saving America. This bill is about stealing an election. This bill is about suppressing voters,” Robinson said. “This bill not only tries to disenfranchise voters that deserve their right to vote, it also tries to criminalize trans kids and their families … It tries to criminalize doctors providing medically necessary care for our trans youth.”
The SAVE Act passed the U.S. House of Representatives on Feb. 11 but has not yet been considered in the U.S. Senate.
Idaho
Idaho advances bill to restrict bathroom access for transgender residents
HB 752 passed in state House of Representatives on Monday
The Idaho House of Representatives passed House Bill 752 on Monday, a measure that would make it a crime for a person to use a bathroom other than the one designated for their “biological sex.”
The story was first reported by the Idaho Capitol Sun after the bill cleared the House.
House Bill 752 would make it a criminal offense — either a misdemeanor or a felony, depending on the number of prior offenses — for individuals who “knowingly and willfully” enter a bathroom or changing room designated for the opposite sex.
The bill would apply to public buildings, including government-owned spaces, and places of “public accommodation,” a category that includes private businesses.
According to the bill’s text, it would “prohibit a person from entering a restroom or changing room designated for the opposite sex; provide a penalty; provide exceptions; define terms; and declare an emergency and provide an effective date.”
A first offense would be a misdemeanor, punishable by up to one year in prison. A second or subsequent offense within five years would be a felony, punishable by up to five years in prison.
The bill passed in a 54–15 vote on Monday. Six Republicans broke with their party’s majority to join nine Democrats in opposing the measure.
The bill’s sponsor, state Rep. Cornel Rasor, a Republican from Sagle near the Washington-Idaho border, told House lawmakers that the legislation is intended to protect women and girls.
“It prevents discomfort and voyeurism escalation and assaults, while preserving single-user options and narrow exceptions so no one is denied access for emergency aid,” Rasor said.
State Rep. Chris Mathias, a Democrat from Boise, disagreed, arguing that the legislation would unfairly target transgender Idahoans.
“The truth of the matter is — and I know a lot of people don’t want to say it — but forcing people who don’t look like the sex they were assigned at birth, or transgender folks, to use other people’s bathrooms is going to put a lot of people in danger,” Mathias said.
The Idaho American Civil Liberties Union made a statement about the bill following its passage.
“Idaho lawmakers continue pushing these harmful, invasive bathroom laws, yet cannot present credible evidence that transgender people using gender-aligned bathrooms threaten public safety,” the Idaho ACLU said. “The bill does nothing to address real criminal acts, such as sexual assault or voyeurism, and disregards concerns from law enforcement about the burden enforcement would place on local resources.”
In addition to human rights advocates, who have spoken out against similar bills advancing in state legislatures across the country, Idaho law enforcement groups have also opposed the measure. They argue that the way the legislation is written would “pose significant practical enforcement challenges,” noting that officers are tasked with maintaining public safety — not conducting gender checks or policing bathroom access.
During a committee hearing last week, law enforcement representatives and several trans Idahoans testified that the bill would make many residents less safe.
“Officers responding to a complaint would be placed in the difficult position of determining an individual’s biological sex in order to enforce the statute,” Idaho Fraternal Order of Police President Bryan Lovell wrote. “In many circumstances, there is no clear or reasonable way for officers to make that determination without engaging in questioning or investigative actions that could be viewed as invasive and inappropriate.”
The Idaho Sheriffs’ Association requested that lawmakers amend the bill to require that individuals be given an opportunity to leave a bathroom immediately before facing potential prosecution.
The bill now heads to the Idaho Senate for consideration. To become law, it must pass both chambers and avoid a veto from the governor.
A separate bathroom bill, House Bill 607, which would be enforced through civil lawsuits, passed the House last month but has not yet received a committee hearing in the Senate.
State Department
Report: US to withhold HIV aid to Zambia unless mineral access expanded
New York Times obtained Secretary of State Marco Rubio memo
The State Department is reportedly considering withholding assistance for Zambians with HIV unless the country’s government allows the U.S. to access more of its minerals.
The New York Times on Monday reported Secretary of State Marco Rubio in a memo to State Department’s Bureau of African Affairs staffers wrote the U.S. “will only secure our priorities by demonstrating willingness to publicly take support away from Zambia on a massive scale.” The newspaper said it obtained a copy of the letter.
Zambia is a country in southern Africa that borders Tanzania, Malawi, Mozambique, Zimbabwe, Botswana, Namibia, Angola, and the Democratic Republic of Congo.
The Times notes upwards of 1.3 million Zambians receive daily HIV medications through PEPFAR. The newspaper reported Rubio in his memo said the Trump-Vance administration could “significantly cut assistance” as soon as May.
“Reports of (the) State Department withholding lifesaving HIV treatment in return for mining concessions in Zambia does not make us safer, stronger, or more prosperous,” said U.S. Sen. Jeanne Shaheen (D-N.H.), the ranking member of the Senate Foreign Relations Committee, on Tuesday. “Monetizing innocent people’s lives further undermines U.S. global leadership and is just plain wrong.”
The Washington Blade has reached out to the State Department for comment.
Zambia received breakthrough HIV prevention drug through PEPFAR
Rubio on Jan. 28, 2025, issued a waiver that allowed PEPFAR and other “life-saving humanitarian assistance” programs to continue to operate during a freeze on nearly all U.S. foreign aid spending. HIV/AIDS service providers around the world with whom the Blade has spoken say PEPFAR cuts and the loss of funding from the U.S. Agency for International Development, which officially closed on July 1, 2025, has severely impacted their work.
The State Department last September announced PEPFAR will distribute lenacapavir in countries with high prevalence rates. Zambia two months later received the first doses of the breakthrough HIV prevention drug.
Kenya and Uganda are among the African countries have signed health agreements with the U.S. since the Trump-Vance administration took office.
The Times notes the countries that signed these agreements pledged to increase health spending. The Blade last month reported LGBTQ rights groups have questioned whether these agreements will lead to further exclusion and government-sanctioned discrimination based on sexual orientation and gender identity.
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