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.
Florida
Fla. Senate passes ‘Anti-Diversity’ bill that could repeal local LGBTQ protections
Bipartisan coalition urges Florida House to reject ‘extremism’ measure
The Florida Senate on March 4 voted 25-11 to approve an “Anti-Diversity in Local Government” bill that critics have called a sweeping and extreme measure that, among other things, could repeal local LGBTQ rights protections.
According to Equality Florida, a statewide LGBTQ advocacy organization, if approved by the Florida House of Representatives and signed by Republican Gov. Ron DeSantis, the bill “would ban, repeal, and defund any local government programming, policy, or activity that provides ‘preferential treatment or special benefits’ or is designed or implemented’ with respect to race, color, sex, ethnicity, sexual orientation, or gender identity.”
In a March 4 statement, Equality Florda added that the bill would also threaten city and county officials with removal from office “for activities vaguely labeled as DEI,” with only limited exceptions.
The Florida House was scheduled to vote on the bill on Monday, March 9, with opponents hopeful that a broad coalition of both Democratic and Republican lawmakers would secure enough votes to defeat the bill.
“Once again, Gov. DeSantis and Florida lawmakers are advancing one of the most sweeping and extreme bills in the country — this time threatening decades of local progress supporting diverse communities, including the LGBTQ community,” said Equality Florida Senior Political Director Joe Saunders. “This legislation is a sledgehammer aimed at cities and counties that recognize and address the diversity of the people they serve,” he said.
Among the LGBTQ organizations that could be adversely impacted by the bill is the highly acclaimed Stonewall National Museum, Archives and Library located in Fort Lauderdale.
Robert Kesten, the Stonewall organization’s president and CEO, told the Washington Blade the organization receives some funding from Broward County, in which Fort Lauderdale is located, and the city of Fort Lauderdale has provided support by purchasing tables at some of the museum’s fundraising events.
“Based on this legislation, hose things would be gone,” he said. “We also are based in a government building. So, we don’t know what potential side effects that could have.” He noted that the building in question is owned by Broward County and leased by Fort Lauderdale, with the bill’s vaguely worded provision making it unclear whether Stonewall would be forced to leave its building.
“It’s unknown, and we’re really in unchartered waters,” he said.
U.S. Capitol Police on Thursday arrested 13 HIV/AIDS activists in the Cannon House Office Building Rotunda.
The activists — members of Housing Works, Health GAP, and the Treatment Action Group — joined former PEPFAR staffers in demanding full funding of the program that President George W. Bush created in 2003. They chanted “AIDS cuts kill, PEPFAR now!” and unfurled banners from the Rotunda’s second floor that read “Trump and (Office of Management and Budget Director Russell) Vought kill people with AIDS worldwide,” “Over 200,000 deaths since January 2025,” and “Hands off PEPFAR” before their arrest.
(Washington Blade video by Michael K. Lavers)
This protest is the latest against the Trump-Vance administration’s HIV/AIDS policies since it took office.
Secretary of State Marco 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 Washington 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 is among the nations in which the breakthrough HIV prevention drug has arrived.
The New York Times last summer reported Vought “apportioned” only $2.9 billion of $6 billion that Congress set aside for PEPFAR for fiscal year 2025. (PEPFAR in the coming fiscal year will use funds allocated in fiscal year 2024.)
Bipartisan opposition in the U.S. Senate prompted the Trump-Vance administration last July withdraw a proposal to cut $400 million from PEPFAR’s budget. Vought on Aug. 29, 2025, said he would use a “pocket rescission” to cancel $4.9 billion for HIV/AIDS prevention and global health programs and other foreign aid assistance initiatives that Congress had already approved.
The White House in January announced an expansion of the global gag rule to ban U.S. foreign aid for groups that promote “gender ideology.” President Ronald Reagan in 1985 implemented the original regulation, also known as the “Mexico City” policy, which bans U.S. foreign aid for groups that support abortion and/or offer abortion-related services. The Council for Global Equality and other groups say the expanded rule will adversely impact HIV prevention efforts around the world.
A press release that Housing Works and Health GAP issued on Thursday notes more than $977 million “in appropriated PEPFAR funding for HIV prevention and treatment was unspent by the end of fiscal year (FY) 2025 — triple amount unspent at the end of FY 2024.”
“Activists predict this backlog will worsen rapidly in FY 2026 unless Congress immediately reasserts its Constitutionally-mandated oversight authority,” notes the press release.
The press release also indicates funding for the Centers for Disease Control and Prevention’s PEPFAR programs “will run out” by April 1 because “only 45 percent of their FY26 funding has been transferred from the State Department.
“Unless funding is transferred immediately, CDC’s global HIV programs across sub-Saharan Africa, Asia and the Caribbean will grind to a halt,” notes the press release.
The activists demanded Trump, Vought, Rubio, and Congress do the following:
- Activists are calling for full obligation of appropriated PEPFAR funds and rejection of growing political interference in global and domestic HIV programs
- Immediately release already-appropriated, unobligated PEPFAR funds
- Break the blackout on PEPFAR data, so Congress and people with HIV know how funding is being spent and can program based on data
- Activists are calling for full obligation of appropriated PEPFAR funds and rejection of growing political interference in global and domestic HIV programs.
“PEPFAR has saved more than 26 million lives and changed the trajectory of an epidemic,” said Housing Works CEO Charles King. “However, the Trump administration’s decision, over the objection of Republicans in Congress, to freeze PEPFAR funding has caused decades of progress to come undone and has been a death sentence for people with HIV relying on life-saving treatment. The U.S. must immediately restore PEPFAR funding and regain our standing in the global fight against HIV.”
King is among the activists who were arrested.
(Washington Blade video by Michael K. Lavers)
Texas state Rep. James Talarico won a hard-fought primary Tuesday to become the state’s Democratic nominee for U.S. Senate, defeating U.S. Rep. Jasmine Crockett in one of the year’s most closely watched and competitive Democratic contests.
Talarico, a Presbyterian seminarian and three-term lawmaker from Round Rock, was declared the winner by the Associated Press early Wednesday morning after a closely tracked vote count that drew national attention.
“Tonight, the people of our state gave this country a little bit of hope,” Talarico told the AP. “And a little bit of hope is a dangerous thing.”
With 52.8% of the vote to Crockett’s 45.9%, Talarico secured the nomination outright, avoiding a runoff and capping months of sharp contrasts between the two candidates over strategy, messaging, and how best to compete statewide in Texas. Democrats hope the competitive primary — and the relatively narrow margin — signals growing momentum in a state that has not elected a Democrat to the U.S. Senate since 1988.
Talarico has long expressed support for the LGBTQ community, a position he highlights prominently on his campaign website. Under the “Issues” section, he directly addresses assumptions that might arise from his faith and background as a seminarian in a deeply conservative state.
“My faith in Jesus leads me to reject Christian Nationalism and commit myself to the project of democracy,” his website reads. “Because that’s the promise of America: a democracy where every person and every family — regardless of religion, race, gender, sexual orientation, or any other difference between us — can truly be free and live up to their full potential.”
Crockett struck a conciliatory tone following her defeat, emphasizing party unity ahead of November.
“This morning I called James and congratulated him on becoming the Senate nominee,” Crockett told Politico. “Texas is primed to turn blue and we must remain united because this is bigger than any one person. This is about the future of all 30 million Texans and getting America back on track.”
Talarico also drew national attention earlier in the race when “Late Show” host Stephen Colbert said he was initially unable to air an interview with the state legislator due to potential FCC concerns involving CBS. The episode sparked a broader political debate.
Brendan Carr, chair of the Federal Communications Commission, appointed by President Donald Trump, told reporters the controversy was a “hoax,” though he also acknowledged Talarico’s ability to harness the moment to build support as an underdog candidate. The interview was later released online and garnered millions of views, boosting Talarico’s national profile.
In November, Talarico will face the winner of the Republican primary between incumbent Sen. John Cornyn and Texas Attorney General Ken Paxton, who have been locked in a bruising GOP contest. Rep. Wesley Hunt was also in the Republican primary field. The GOP race is expected to head to a May runoff.
In a joint statement, Senate Minority Leader Chuck Schumer and Democratic Senatorial Campaign Committee Chair Kirsten Gillibrand praised Talarico’s victory and framed him as a candidate capable of broad appeal.
“As an eighth-generation Texan, former middle school teacher, and Presbyterian seminarian, James will be a fighter for Texans from all walks of life and of all political stripes,” they said. “In November, Texans will elect a champion for working people: James Talarico.”
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