National
GOP att’y strongly defends DOMA in N.Y. widow’s lawsuit
Second Circuit hears arguments in Windsor case in NYC
Edith ‘Edie’ Windsor testifies in her Federal Court case against DOMA. (Washington Blade file photo by Michael Key)
NEW YORK CITY — The House Republican attorney defending the Defense of Marriage Act in court took particular issue on Thursday with an octogenarian lesbian’s case against by the law by suggesting the timing and location of her marriage makes challenge invalid.
Paul Clement, a former U.S. solicitor general under the Bush administration, claimed before a federal appeals court that Edith Windsor doesn’t have a case because she married in Canada and her spouse, Thea Spyer, died in 2009 — two years before New York legalized same-sex marriage.
“The critical question isn’t 2012, the critical question is 2009,” Clement said.
Clement added that the issue of whether the marriage is sufficient for a challenge against DOMA should be brought to certification before the New York Court of Appeals, the highest state court in New York.
James Esseks, director of the ACLU’s Lesbian Gay Bisexual and Transgender Project, told the Blade after the oral arguments that Clement was “grasping at straws” when making these claims.
“There’s clear law in New York that New York in 2004 recognized the marriages of same-sex marriage performed in Canada and in other states that allowed same-sex couples to marry,” Esseks said.
Esseks acknowledged that the high court in New York hasn’t affirmed those marriages, but said that three lower courts have recognized those marriages as legitimate as well as the governor and attorney general.
“There’s just no debate about it; It’s quite clear,” Esseks said. “I think we heard from the court today — it’s difficult to make any predictions — but based on what I heard from the court, I don’t think that that’s how the court’s going to decide this question. They’re not going to duck the constitutionality of the Defense of Marriage by saying we’re not sure whether she’s actually married or not.”
Edith Windsor (right) speaks with the ACLU’s James Esseks to reporters following oral arguments in the Second Circuit (Washington Blade photo by Chris Johnson)
A three-judge panel on the appellate court heard from three attorneys during oral arguments in the case, known as Windsor v. United States. The lawsuit was filed by the American Civil Liberties Union on behalf of Windsor, who was forced to pay $363,000 in estate taxes upon the death of her spouse because of Section 3 of DOMA, which prohibits federal recognition of same-sex marriage.
The panel consisted of Chief Judge Dennis Jacobs, who was appointed by President George H.W. Bush; Judge Chester Straub, who was appointed by former President Bill Clinton; and Judge Christopher Droney, who was appointed by President Obama.
It’s the second time a federal appellate court has considered the constitutionality of DOMA. In April, the U.S. First Circuit of Appeals heard oral arguments in the consolidated case of Gill v. Office of Personnel Management and Commonwealth of Massachusetts v. Department of Health & Human Services. On May 31, the appeals issued a decision against DOMA as result of that consideration.
Lawyers presented before the Second Circuit starkly different views on the the Defense of Marriage Act on Thursday before judges reviewing Windsor’s challenge to the anti-gay law, which was passed by Congress in 1996.
In addition to questioning whether Windsor has standing, Clement, who’s DOMA in court on behalf of the House Republican-led Bipartisan Legal Advisory Group, drew upon the cases of Baker v. Nelson, a 1972 Minnesota case seeking the legalization of same-sex marriage that the U.S. Supreme Court declined to hear for lack of substantive federal question.
Clement acknowledged the case is 40 years old and times may have changed since then, but added, “The only thing that hasn’t changed is this court’s obligation to follow Supreme Court precedent.”
Plaintiffs in the case had another view. Roberta Kaplan, partner at Paul, Weiss, Rifkind, Wharton & Garrison LLP, argued against DOMA on behalf of Windsor, saying the law be struck down because states can already decide on their own what decisions to make about who can marry within their borders.
“The problem supposedly solved by uniformity is a problem that our federalist principles have already dealt with,” Kaplan said.
Kaplan added the case against DOMA isn’t about any federal right to marry because even with the law in place, gay couples haven’t been discouraged from marrying across the country, nor have they been discouraged from adopting.
Acting U.S. Assistant Attorney General Stuart Delery, who’s gay, assisted in the litigation against by presenting arguments on behalf of the Obama administration, saying the court should strike down because of the long history of discrimination against LGBT people — including the criminalization of homosexuality and being barred from military service.
“Sexual orientation is a fundamental part of person’s identity that says nothing about a person’s ability to contribute to society,” Delery said.
Questions from judges hit on several topics, although the questioning from didn’t reveal much in terms of what how they’d rule in the case. Many inquiries were posed about the extent to which gays and lesbians enjoy political power within the U.S. government. Opponents of DOMA have argued the anti-gay law is unconstitutional because gays and lesbians lack political power, but BLAG contends the LGBT community has significant influence.
Asked by Jacobs about whether the test of political power is whether gays and lesbians have any power at all or whether power is diminished, Clement replied, “I think it’s the former, and I don’t think it’s not a overwhelmingly difficult test. … It’s a matter of whether you get the attention of lawmakers.”
Clement pointed to a friend-of-the-court brief signed by 145 House Democrats filed in the case on behalf of plaintiffs as evidence that the LGBT community has influence over the political process as he asserted the LGBT community should look to the legislative process to repeal DOMA, saying “This is an issue that could be left to the Democratic process.”
But Kaplan said the 30 marriage amendments that passed in state throughout the country are evidence that gay and lesbians are politically powerless, even though she emphasized these amendments have no bearing on the case at hand against DOMA.
The degree of scrutiny under which laws related to sexual orientation should face before the courts also came up the during the hearing. Judges asked whether they should overturn DOMA on the basis that such laws should be subjected to strict scrutiny, or more intermediate level of heightened scrutiny or be examined under a rational basis review. The level of scrutiny they apply could have implications on court cases related to sexual orientation.
In the event the court decided to rule against DOMA, Clement said the court asked the court not to apply heightened scrutiny, noting it would be the first appellate court to do so because the First Circuit Court of Appeals when struck down DOMA in May under rational basis review.
Kaplan said she was arguing for the higher level of review called strict scrutiny as opposed to the more intermediate heightened scrutiny because “being gay or lesbian is closer to being African-American than being a woman.” Laws related to gender have been subjected to heightened scrutiny, but laws related to race have been subjected to strict scrutiny.
But Delery didn’t articulate the same view, saying he was arguing against DOMA on the basis that it violated heightened scrutiny. While he acknowledged arguments could be made that DOMA fails rational basis, he wouldn’t commit to saying that should be struck down under that standard.
Another question for Delery, which came from Droney, was why the Justice Department had appealed the Windsor to the Second Circuit even though his side won at the district court level when U.S. District Judge Barbara Jones ruled against the law. Delery provided a explanation, prompting Droney to quip that the Justice Department must have a predilection for seeking appellate court rulings in all cases, eliciting laughter from those in attendance at the hearing.
Yet another question was raised by Jacobs on whether withholding benefits from gay couples with the intention of saving money for the federal government is a good enough constitutional reason to keep DOMA in place. Kaplan denied this assertion and said saving money isn’t sufficient rationale unless it’s coupled with another justification.
But Clement pounced on these remarks in the rebuttal allotted to him at the end of the oral arguments, saying preserving federal coffers are absolutely a good reason to preserve DOMA and Congress was “preserving the scope of the benefits programs the way they’ve always been.”
Clement also during his rebuttal asserted that Congress has acted in other areas besides gay and lesbian with regard to marriage. He noted lawmakers have acted to protect against fraud, and, going back to the 19th Century, require states to prohibit polygamy so territories like Utah could enter into the union.
Following the oral arguments, Windsor appeared outside the court building to speak with reporters. Windsor, who recently turned 83, said, “I look forward to the day when the federal government will recognize the marriages of all Americans, and I am hopeful that this day will come during my lifetime.”
Windsor further invoked the memory her deceased spouse — with whom she shared a life for 40 years — saying she believes she’s was present in the court in spirit and “would have been so proud to see how far we’ve come.”
Now that oral arguments are done, judges will confer to determine the steps they’ll take in the case and the process that will lead to them making a decision. There’s no set time for when they have to make a ruling; it could be a matter of days, months or a year.
The ACLU’s Esseks said he wasn’t in a position to predict in what way judges would rule as a result of what was said during the oral arguments.
“Lawyers never want to predict the outcomes,” Esseks said. “There are some arguments that you come out of and you’re like I’m willing to take a guess here. This argument didn’t give me clear sense one way or the other. I wouldn’t be surprised about a win and I wouldn’t be shocked about a loss either.”
Windsor’s attorneys and the Justice Department have asked the Supreme Court to take up the Windsor case for consideration. If the Supreme Court accepts the request, the high court would take up jurisdiction of the lawsuit and the Second Circuit proceedings would be halted.
The White House
Report: Grenell wants Russian ambassadorship
Country’s anti-LGBTQ record a reported barrier
Richard Grenell, President Donald Trump’s special envoy for “special missions,” is making it known that he is interested in the Russian ambassadorship.
According to reporting by the Daily Mail, Grenell has “floated” his interest in the role to coworkers, but issues surrounding the former German ambassador’s sexuality have made securing the position more difficult.
“He had an interest in the job — or at least he floated the idea to select colleagues. But Putin’s regime is extremely anti–LGBTQ, so I’m sure they didn’t take that thought too seriously,” one source close to Grenell told the Daily Mail. “That would never happen anyway.”
Grenell has long been one of Trump’s closest allies and was the first openly gay person to hold a Cabinet-level position. He was ousted last month as acting director of the Kennedy Center, a position he had held since Trump reestablished the board to be composed of his political supporters in 2025.
In addition to leading the nation’s cultural arts center, Grenell previously served as the U.S. ambassador to Germany from 2018 to 2020, and as the special presidential envoy for Serbia and Kosovo peace negotiations from 2019 to 2021. He was also a State Department spokesperson to the U.N. under the George W. Bush administration and a Fox News contributor.
Russia has a longstanding history of being anti-LGBTQ.
In 2013, the country passed a law banning any public endorsement of “nontraditional sexual relations” among minors. In December 2022, Putin signed legislation expanding the ban, making it illegal to promote same-sex relationships or suggest that non-heterosexual orientations are “normal” for people of any age, widening censorship across media and public life.
The Russian courts have also supported the restriction of LGBTQ identity in the country. In November 2023, Russia’s Supreme Court granted a request from the Justice Ministry to outlaw the “international LGBT movement” as “extremist,” allowing authorities to criminalize advocacy and potentially prosecute individuals for expressions of LGBTQ+ identity or support.
In addition to LGBTQ rights issues, the war between Russia and Ukraine has become a global concern. Ukraine, which was part of the former Soviet Union, includes the territory known as Crimea, which Russia annexed in 2014. The annexation remains a major point of international dispute over sovereignty. Since 2022, Russia’s large-scale invasion of Ukraine has escalated the conflict, drawing global attention and sanctions while straining U.S.-Russia relations.
The U.S. has spent $188 billion in total related to the war in Ukraine since the Russian invasion in February 2022, according to the Council on Foreign Relations.
The Russian ambassadorship seems to be a difficult role to fill, according to additional information presented by the Daily Mail. With Trump already being seen as relatively positive by Russian President Vladimir Putin, and with close ties to members of his Cabinet and family — like son-in-law Jared Kushner — the ambassadorship is complicated and viewed as less critical than in previous administrations.
“There is no rush to fill that role because it has now been deemed unnecessary,” another source told the U.K.-based publication.
Bob Foresman, a seasoned businessman with decades-long ties to the Kremlin, was reportedly once the frontrunner, according to the Daily Mail. Foresman served as vice chair of UBS Investment Bank and Deputy Chairman of Renaissance Capital between 2006 and 2009, and earlier led investment banking for Russia at Dresdner Kleinwort Wasserstein from 1997 to 2000.
“This is a pattern, especially in the Trump administration — special envoys big–footing the ambassadors,” a source told the Daily Mail. “It is shocking that we are already in April and we don’t have an ambassador to one of the most important countries in the world.”
Tennessee
Tenn. lawmakers pass transgender “watch list” bill
State Senate to consider measure on Wednesday
The Tennessee House of Representatives passed a bill last week to create a transgender “watch list” that also pushes detransition medical treatment. The state Senate will consider it on Wednesday.
House Bill 754/State Bill 676 has been deemed “ugly” by LGBTQ advocates and criticized by healthcare information litigators as a major privacy concern.
The bill would require “gender clinics accepting funds from this state to perform gender transition procedures to also perform detransition procedures; requires insurance entities providing coverage of gender transition procedures to also cover detransition procedures; requires certain gender clinics and insurance entities to report information regarding detransition procedures to the department of health.”
It would require that any gender-affirming care-providing clinics share the date, age, and sex of patients; any drugs prescribed (dosage, frequency, duration, and method administered); the state and county; the name, contact information, and medical specialty of the healthcare professional who prescribed the treatment; and any past medical history related to “neurological, behavioral, or mental health conditions.” It would also mandate additional information if surgical intervention is prescribed, including details on which healthcare professional made a referral and when.
HB 0754 would also require the state to produce a “comprehensive annual statistical report,” with all collected data shared with the heads of the legislature and the legislative librarian, and eventually published online for public access.
The bill also reframes detransitioning as a major focus of gender-affirming healthcare — despite studies showing that the number of trans people who detransition is statistically quite low, around 13 percent, and is often the result of external pressures (such as discrimination or family) rather than an issue with their gender identity.
This legislation stands in sharp contrast to federal protections restricting what healthcare information can be shared. In 1996, Congress passed the Health Insurance Portability and Accountability Act, or HIPAA, requiring protections for all “individually identifiable health information,” including medical records, conversations, billing information, and other patient data.
Margaret Riley, professor of law, public health sciences, and public policy at the University of Virginia, has written about similar efforts at the federal level, noting the Trump-Vance administration’s push to subpoena multiple hospitals’ records of gender-affirming care for trans patients despite no claims — or proof — that a crime was committed.
It has “sown fear and concern, both among people whose information is sought and among the doctors and other providers who offer such care. Some health providers have reportedly decided to no longer provide gender-affirming care to minors as a result of the inquiries, even in states where that care is legal.” She wrote in an article on the Conversation, where she goes further, pointing out that the push, mostly from conservative members of the government, are pushing extracting this private information “while giving no inkling of any alleged crimes that may have been committed.”
State Rep. Jeremy Faison (R-Cosby), the bill’s sponsor, said in a press conference two weeks ago that he has met dozens of individuals who sought to transition genders and ultimately detransitioned. In committee, an individual testified in support of the bill, claiming that while insurance paid for gender-affirming care, detransition care was not covered.
“I believe that we as a society are going to look back on this time that really burst out in 2014 and think, ‘Dear God, What were we thinking? This was as dumb as frontal lobotomies,’” Faison said of gender-affirming care. “I think we’re going to look back on society one day and think that.”
Jennifer Levi, GLAD Law’s senior director of Transgender and Queer Rights, shared with PBS last year that legislation like this changes the entire concept of HIPAA rights for trans Americans in ways that are invasive and unnecessary.
“It turns doctor-patient confidentiality into government surveillance,” Levi said, later emphasizing this will cause fewer people to seek out the care that they need. “It’s chilling.”
The Washington Blade reached out to the American Civil Liberties Union of Tennessee, which shared this statement from Executive Director Miriam Nemeth:
“HB 754/SB 676 continues the ugly legacy of Tennessee legislators’ attacks on the lives of transgender Tennesseans. Most Tennesseans, regardless of political views, oppose government databases tracking medical decisions made between patients and their doctors. The same should be true here. The state does not threaten to end the livelihood of doctors and fine them $150,000 for safeguarding the sensitive information of people with diabetes, depression, cancer, or other conditions. Trans people and intersex people deserve the same safety, privacy, and equal treatment under the law as everyone else.”
Iran
LGBTQ groups condemn Trump’s threat to destroy Iranian civilization
Ceasefire announced less than two hours before Tuesday deadline
The Council for Global Equality is among the groups that condemned President Donald Trump on Tuesday over his latest threats against Iran.
Trump in a Truth Social post said “a whole civilization will die tonight” if Tehran did not reach an agreement with the U.S. by 8 p.m. ET on Tuesday.
Iran is among the handful of countries in which consensual same-sex sexual relations remain punishable by death.
Israel and the U.S. on Feb. 28 launched airstrikes against Iran.
One of them killed Supreme Leader Ayatollah Ali Khamenei. Iran in response launched missiles and drones against Israel and other countries that include Kuwait, Bahrain, Qatar, the United Arab Emirates, Jordan, Saudi Arabia, Azerbaijan, and Cyprus.
Gas prices in the U.S. and around the world continue to increase because the war has essentially closed the Strait of Hormuz, a strategic waterway that connects the Persian Gulf and the Gulf of Oman through which roughly 20 percent of the world’s crude oil passes.
Trump less than 90 minutes before his deadline announced a two-week ceasefire with Iran that Pakistan helped broker.
“We the undersigned human rights, humanitarian, civil liberties, faith-based and environmental organizations, think tanks and experts are deeply alarmed by President Trump’s threat regarding Iran that ‘a whole civilization will die tonight’ if his demands are not met. Such language describes a grave atrocity if carried out,” reads the statement that the Council for Global Equality more than 200 other organizations and human rights experts signed. “A threat to wipe out ‘a whole civilization’ may amount to a threat of genocide. Genocide is a crime defined by the Genocide Convention and by the Rome Statute of the International Criminal Court as committing one or more of several acts ‘with intent to destroy in whole or in part a national, racial or religious groups as such.'”
The statement states “the law is clear that civilians must not be targeted, and they must also be protected from indiscriminate or disproportionate attacks.”
“Strikes on civilian infrastructure — such as the recent attack on a bridge and the attacks President Trump is repeatedly threatening to carry out to destroy power plants — have devastating consequences for the civilian population and environment,” it reads.
“We urge all parties to respect international law,” adds the statement. “Those responsible for atrocities, including crimes against humanity and war crimes, can and must be held accountable.”
The Alliance for Diplomacy and Justice, Amnesty International USA, Human Rights Watch, the American Civil Liberties Union, the NAACP, MADRE, and the Robert and Ethel Kennedy Human Rights Center are among the other groups that signed the letter.
Report: Grenell wants Russian ambassadorship
Log Cabin Republicans to honor Scott Presler
Cuba bajo presión y sin respuestas
Tenn. lawmakers pass transgender “watch list” bill
