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.
National
White House orders warning signs at Smithsonian over gender identity exhibits
Administration criticizes National Museum of American History
The Trump administration will install temporary warning signs outside the Smithsonian’s National Museum of American History after releasing a report accusing the museum of promoting what it calls “radical” gender ideology and other politically biased content.
According to the Executive Order, “For purposes of policy formulation under EO 14253, this review of the National Museum of American History concludes that NMAH, by the intention and at the direction of current Museum and Smithsonian leadership, has become subject to institutional capture by a radical, activist ideology that is fundamentally opposed to telling the noble, honest story of the great country we know and love.”
Executive Order 14253 refers to what the White House has deemed the “Restoring Truth and Sanity to American History” order. Therefore, the Trump administration has said it will take all available steps to ensure that the issues in the report are addressed and rectified.
Without specifying, the White House has stated that warnings will be posted along NMAH to alert visitors to sections of the museum it has deemed are in violation according to the report.
“The Secretary of the Interior, acting through the Director of the National Park Service (NPS) and in coordination with the Assistant to the President for Domestic Policy, shall install temporary signage along the NPS-maintained sidewalks and walkways used by the public to access the Museum, informing visitors of the findings of the Report and of the policy set forth in section 1 of this order,” the Executive Order states.
The warnings were raised in a 162-page report issued by the Domestic Policy Council. The report detailed ways in which the National Museum of American History (NMAH) has “poorly” portrayed American history and insufficiently highlighted the founding story during America 250th celebrations.
The report outlined key findings of the NMAH. One of these findings was the Center for Restorative History within the museum, which has stated its purpose is to “encourage systemic change” by highlighting diverse groups. However, the report states that it highlights every group of Americans except for straight and white Americans.
The Domestic Policy Council accused the museum of engaging in “transgender activism.” According to the report, examples include referring to “biological men” as women or girls, displaying what it describes as sexually suggestive content, and incorporating discussions of gender fluidity, gender identity, and gender nonconformity into the museum’s educational curriculum, “Becoming US.”
The report also criticizes the curriculum for using the term “transgender” when discussing gender-nonconforming people and encouraging individuals to ask a person’s pronouns when meeting them. It further objects to exhibits stating that “transgender, nonbinary, and cisgender female athletes” continue to struggle for and demand equality.
It also condemns what it refers to as explicit content in an exhibition, “Girlhood (It’s Complicated)”, such as chest binders, questioning gender testing in women’s sports, and referring to biological females as “people inhabiting female bodies.”
Additionally, the report accuses the museum of no longer participating in flag-celebrating ceremonies because it was “too busy” preparing for June Pride and WorldPride events. It states, “As Director Hartig explained in a June 2024 presentation, all her attention was focused on flying the Smithsonian Pride Alliance’s ‘intersexual pride flag during June’ in 2023 and 2024.”
On July 9, the American Historical Association issued a statement rejecting the report’s findings.
In regard to the report, it states, “Its anonymous authors overlook a central lesson of the nation’s founding: the United States was forged by finding common purpose amid intense divisions, conflicts, and disagreements.” They argue that only “honest history” can tell the true history of the nation.
House Republicans led a subcommittee hearing that questioned Smithsonian Director Hartig extensively. A main focus of the questions was on the exhibits related to gender identity and whether they were appropriate. In the hearing, Rep. Nancy Mace asked: “When was your gender revealed to you, Dr. Hartig?”
In response to questioning, Hartig stated that the institution is nonpartisan and does not push a specific agenda.
Hartig published a two-page statement ahead of her hearing outlining her thoughts on the situation. In the report, she states that the institution is always open to criticism and will continue to look for ways to improve, but she sees the report as misleading.
“I can attest that the report does not fairly characterize the full body of work at this museum. I am familiar with the depth and breadth of our collections, exhibits, and programming. And while I recognize there is always room for improvement, I also know the beauty, inspiration, and expertise that exists in our museum,” Hartig wrote.
Democrats created their own 16-page report as a rebuttal to the Domestic Policy Council’s report. It argued that the attacks by the current Trump administration are another example of its attempt to rewrite history. Additionally, the report states that no policy changes were included in the Executive Order, as that is beyond the President’s role. “The Report recommends nothing. That is no accident. To recommend an action, the Report would need to identify who is legally empowered to take it, and its own opening chapter concedes the President’s only power is to ‘urge’,” House Democrats wrote.
It is still unclear when the temporary warnings will be installed or what form they will take beyond the requirements outlined in the executive order.
An exhibit at the Smithsonian. (Washington Blade photo by Landon Shackelford)
National
Trump ends direct HIV prevention funding to community groups
Advocates say transfer of funds to states may disrupt local programs
A decision by the U.S. Office of Management and Budget (OMB) at the request of the Trump administration to discontinue direct federal funding of community-based organizations and clinics that provide HIV prevention services has raised concern among community health advocates, including LGBTQ advocates.
News surfaced earlier this month that the OMB informed the U.S. Centers for Disease Control and Prevention that it would not renew $46 million in funding for 96 community-based organizations that provide HIV testing, referrals to medical care, and arrangements for obtaining pre-exposure HIV prevention medication known as PrEP that has been shown to be 99 percent effective in preventing HIV infection.
Under the new policy arranged by OMB, the funds will be redirected to the states to be allocated to state and local health departments. The policy calls for states to encourage but not require their respective state and local health departments to allocate some of those funds for community-based organizations. Under the new policy, the funding is scheduled to last until May of 2027, before a renewal decision is made.
Some political observers have speculated that the decision to end direct federal funding to community-based organizations could be motivated by the Trump administration’s hostility to diversity, equity, and inclusion or DEI programs and organizations that promote those programs, with the belief that some of the groups receiving the federal HIV prevention funds are promoting DEI.
Carl Schmid, executive director of the D.C.-based HIV+ Hepatitis Policy Institute, is among the leaders of many AIDS advocacy organizations expressing strong opposition to the OMB action. Schmid said that in places like D.C. and some states, local officials will be willing to redirect the federal funds to local community-based organizations.
A list of the 96 community-based organizations across the country that are currently receiving the federal AIDS funds includes the D.C.-based Whitman-Walker Health, which has a long history of healthcare support for the LGBTQ community, and La Clinica del Pueblo, which reaches out to the Latino community.
Schmid said Whitman-Walker and La Clinica del Pueblo have longstanding good relationships with the local D.C. government.
“But other states and jurisdictions don’t have that relationship with the community-based organizations,” Schmid said. “It depends on the state,” he said, adding, “Not all states send their money to the communities that really need it most. And not all states are fast in getting money to the community-based organizations.”
Spokespersons for Whitman-Walker and La Clinica del Pueblo couldn’t immediately be reached for comment on whether they think the Trump administration’s latest action related to funding will adversely impact their respective organizations.
Schmid said under the current federal grant program slated to be discontinued, which has been in effect for at least five years, HIV-related health organizations receiving the federal grant funds were eligible for an existing federal policy enabling them to purchase HIV-related medication, including the PrEP prevention medication, at a significant discount from pharmaceutical companies. With the ending of the direct federal HIV funds to community-based organizations, Schmid said it was unclear whether problems may surface in obtaining drug discounts.
“They could still qualify as a sub-grantee from a state,” Schmid said. “But what if they don’t get that grant again? They would not be able to qualify to obtain the drugs” at the discounted price, he said.
Among the organizations expressing strong concern over the decision to discontinue the direct HIV prevention funding to community-based organizations has been the Federal AIDS Policy Institute and its subgroup called the HIV Prevention Action Coalition.
In a July 22 letter bearing the names of 71 community-based organizations from throughout the country sent to U.S. Department of Health and Human Services Secretary Robert F. Kennedy Jr. and Centers for Disease Control and Prevention Acting Director Jay Bhattacharya, the group called for the Trump administration to “reconsider” ending the current funding policy.
“Ending this program without a clear plan for what comes next would dismantle prevention infrastructure that has taken more than three decades of federal investment to build and do so just as that long record of measurable returns is accelerating,” the letter states.
It says the initiative by President Trump in his first term as president to end the HIV epidemic and reduce new HIV infections by 90 percent by 2030 was moving ahead by the funding program for community-based organizations that the administration now wants to end.
“Discontinuing this program would also cost far more than it saves,” the letter says. “Every HIV transmission prevented avoids an estimated lifetime treatment cost of roughly half a million dollars per person to the healthcare system – costs that fall heavily on taxpayer-funded programs, including Medicaid, Medicare, and the Ryan White HIV/AIDS program,” the letter continues.
“The choice before the administration is straightforward: a modest, targeted investment in prevention now, or far greater public expense for treatment later,” the letter concludes.
Spokespersons for the OMB and the Department of Health and Human Services, which oversees the CDC, have not immediately responded to news media requests for comment on the opposition to the funding change policy.
National
At Alliance Defending Freedom’s summit, church and state are one
House Speaker Mike Johnson (R-La.) among speakers
Uncloseted Media published this article on July 23.
By SPENCER MACNAUGHTON | Earlier this month, hundreds of people filled a conference room in San Diego. These included Speaker of the House Mike Johnson, Assistant Secretary of Health Admiral Brian Christine, OpenAI executive Dean Ball, and the attorneys general of West Virginia and Idaho.
They all came together for Alliance Defending Freedom’s 2026 Summit. The Christian legal group, also a Southern Poverty Law Center-designated anti-LGBTQ hate group, described the event as a “gathering of leaders from many different spheres, including law, public policy, media, business, education, and Christian leadership.”
Johnson — who has said that “homosexual relationships are inherently unnatural and … society cannot give its stamp of approval to such a dangerous lifestyle” — was a featured speaker.
In his speech, he seemed unconcerned with the separation of church and state: “It is so encouraging to Kelly and I to be among friends and fellow warriors for this cause and people who understand that God is not done with America yet. … ADF’s on the very tip of the spear, front line, defending those very truths and keeping the door open for the spread of the Gospel. This is our moment. I’m telling you, I believe the next season … is going to be the greatest season of this ministry since its inception.”
That ministry is one that has espoused aggressively anti-LGBTQ views since its inception in the early 1990s. It was co-founded by a group of evangelical men, including Alan Sears, who co-authored a book called “The Homosexual Agenda: Exposing the Principal Threat to Religious Freedom Today.” Since then, ADF has opposed gay marriage and supported bans on gay sex and on gender-affirming care for minors.
After helping overturn Roe v. Wade, ADF lawyers have led key victories at the Supreme Court. In 303 Creative v. Elenis, SCOTUS ruled that a website designer could refuse service to gay weddings. And this year they convinced the Court to overturn Colorado’s ban on conversion therapy and to uphold state laws in West Virginia and Idaho that ban trans girls from playing on girls’ sports teams.
At the summit, ADF President Kristen Waggoner, who has promoted conversion therapists and consistently misgenders trans people, interviewed these states’ attorneys general.
“The lawyers who were defending women’s sports were among the best I’ve ever seen in my entire life,” West Virginia Attorney General JB McCuskey told Waggoner.
Similar to Johnson, Trump’s Assistant Secretary of Health Christine showed his commitment to governing based on conservative Christianity. He gave a Bible-thumping speech against gender transition and trans healthcare, saying that it “contradicts … the deeper moral order that is woven into creation itself. For Genesis 1:27 informs us that God created man in his own image. … Male and female” He also said the “complementary relationship between man and woman is divine” and advocated for youth with gender dysphoria to receive care from a pastor.
All of these remarks from politicians made me think of the interview I published earlier this week with Pete Hegseth’s pastor, Doug Wilson. He wants a Christian theocracy in America and told me that: both the perpetrator and the victim should be disciplined in some cases of marital rape; that transgender people are “sad;” that execution is justifiable for certain homosexual acts; and that gay sex should be illegal.
The ADF Summit is glossy and polished. And while its messaging may be less explicit than Pastor Wilson’s, the track record of the organizations shows they have the exact same desires. They’re just deeply strategic in what they say and when and how they say it.
I believe the political power players who attended this year’s summit know this. They know they are endorsing an organization whose members have essentially called for the illegalization of most — if not all ‚ forms of queer behavior and presentation.
In the last few years, these perspectives have become increasingly embedded in the highest rooms of the federal government and they have been effective in stripping away LGBTQ rights. Wilson, who just installed a full-time pastor in Washington to lead services, says there are 10 to 20 government officials who align with his church’s ideology.
It is vital for Americans to keep their eyes wide open to the ultimate goal of groups like ADF: to create a United States that leaves LGBTQ people without rights and that pushes us back in the closet.
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