National
BREAKING: Second Circuit latest to strike down DOMA
Anti-gay law ruled unconstitutional in 2-1 decision
The Second Circuit ruled that DOMA is unconstitutional against Edith Windsor‘s legal challenge against the law (Washington Blade file photo by Michael Key)
A federal appeals court has ruled the Defense of Marriage Act is unconstitutional in case filed by a New York widow who’s challenging the statute on the basis that it unfairly forced her to pay $363,000 in estate taxes.
In a 2-1 decision, the U.S. Second Circuit Court of Appeals ruled against Section 3 of DOMA on the basis that it violates equal protection under the Fifth Amendment of the U.S. Constitution.
The majority opinion came from Chief Judge Dennis Jacobs, who wrote the decision, and Judge Christopher Droney. Judge Chester Straub dissented by asserting DOMA is constitutional.
“DOMA’s classification of same-sex spouses was not substantially related to an important government interest,” the decision states. “Accordingly, we hold that Section 3 of DOMA violates equal protection and is therefore unconstitutional.”
The plaintiff in the lawsuit, which was filed by the American Civil Liberties Union, is 83-year-old lesbian Edith Windsor, who in 2009 had to pay $363,000 in estate taxes upon the death of her spouse, Thea Spyer, because DOMA prohibits the federal recognition of same-sex marriage.
In a statement, Windsor praised the Second Circuit for coming to the conclusion that DOMA is unconstitutional.
“This law violated the fundamental American principle of fairness that we all cherish,” Windsor said. “I know Thea would have been so proud to see how far we have come in our fight to be treated with dignity.”
The decision means seven federal courts — eight if a bankruptcy court ruling is included — have now determined DOMA is unconstitutional at a time when numerous cases challenging the anti-gay law are pending for consideration before the U.S. Supreme Court. The high court hasn’t yet determined whether it will take up the constitutionality of DOMA, but is likely to do so. The Second Circuit is also the second appeals court to strike down DOMA. The First Circuit ruled against the law in May.
The next step in the process is for House Republicans to appeal the decision either to the full Second Circuit or the Supreme Court, which has already been asked to take up the Windsor case along with several other DOMA cases. The high court will then decide the constitutionality of DOMA once and for all on a nationwide basis.
Susan Stenger, an appeals court attorney who’s handled LGBT rights cases for the Boston-based firm Burns & Levinson, said it’s unlikely DOMA proponents would pursue en banc review in the cases because so many other lawsuits against the anti-gay law are already pending before the Supreme Court.
“The fact that there’s a dissent [means] they might try en banc review, but also knowing that this will ultimately go to the Supreme Court, I would think they wouldn’t bother,” Stenger said. “Why waste time and resources when if an en banc changed anything, whomever lost would certainly appeal?”
Dennis, who was appointed by President George H.W. Bush, wrote the majority decision against DOMA even though he has reputation for being a conservative judge. Joining him was an Obama appointee, Droney. The dissenting judge, Straub, was appointed by former President Clinton.
In addition to ruling against DOMA, the judges determined the anti-gay law should be subject to heightened scrutiny, or a greater assumption that the law is unconstitutional. The Second Circuit is the first appeals court to determine that DOMA should be subject to this level of review.
Based on precedent the Supreme Court set in earlier court cases, the court offers four reasons — including the history of discrimination faced by LGBT people — as reasons why DOMA should be subject to heightened scrutiny.
“In this case, all four factors justify heightened scrutiny: A) homosexuals as a group have historically endured persecution and discrimination; B) homosexuality has no relation to aptitude or ability to contribute to society; C) homosexuals are a discernible group with non-obvious distinguishing characteristics, especially in the subset of those who enter same-sex marriages; and D) the class remains a politically weakened minority,” the decision states.
Douglas Nejaime, who’s gay and a law professor at Loyola Law School, called the Second Circuit’s decision to apply heightened scrutiny against DOMA “very significant” because it means the Supreme Court will have to weigh in on the matter in addition to the law itself.
“As a practical matter, this makes it even more difficult for the Supreme Court to avoid the question of heightened scrutiny,” NeJaime said. “If the Gill decision from the First Circuit was the only federal appellate decision striking down DOMA, the Court could have struck down DOMA — upholding that decision — without passing on the level-of-scrutiny question. But with the Second Circuit’s decision in Windsor, the Court is more likely to address heightened scrutiny.”
NeJaime added that as a result of the Second Circuit application of heightened scrutiny, courts are now more likely to find state marriage bans unconstitutional as well as anti-gay laws related parental rights and public employment discrimination.
Notably, the decision rejects an argument proposed by private attorney Paul Clement — who’s advocating on behalf of the anti-gay law for the House Republican-led Bipartisan Legal Advisory Group — that Windsor’s case should be sent to the New York Court of Appeals for certification because Spyer died at a time before New York legalized same-sex marriage.
The appeals court says certification is unnecessary because the New York Court of Appeals has expressed a disinclination to decide the question and because New York’s intermediate appellate courts are unanimous on the issue. At that time of Spyer’s death in 2009, Windsor’s marriage was recognized in New York by an executive order issued by then-Gov. David Paterson.
“Given the consistent view of these decisions, we see no need to seek guidance here,” the decision states. “Because Windsor’s marriage would have been recognized under New York law at the time of Spyer’s death, she has standing.”
The court also rejects an argument posed by Clement that the court should uphold DOMA because of precedent set by Baker v. Nelson, a 1972 case challenging Minnesota’s prohibition on same-sex marriage that the Supreme Court refused to hear for want of federal question.
Judges say Baker isn’t controlling because in the 40 years following the case there have been “manifold changes to the Supreme Court’s equal protection jurisprudence” and because the lawsuits are distinct: Baker was about same-sex marriage within a state while the Windsor is about a federal law.
“After all, Windsor and Spyer were actually married in this case, at least in the eye of New York, where they lived,” the decision states. “Other courts have likewise concluded that Baker does not control equal protection review of DOMA for these reasons.”
James Esseks, director of the ACLU LGBT Project, shared in the jubilation that the court’s reasoning led the judges to rule against the anti-gay law.
“Yet again, a federal court has found that it is completely unfair to treat married same-sex couples as though they’re legal strangers,” Esseks said. “Edie and Thea were there for each other in sickness and in health like any other married couple, and it’s unfair for the government to disregard both their marriage and the life they built together and treat them like second-class citizens.”
Rep. Jerrold Nadler (D-N.Y.), who was among the 144 House Democrats who signed a friend-of-the-court brief against DOMA in the Windsor case, also commended the judges for ruling in favor of a plaintiff who’s also his constituent.
“As the amicus brief I spearheaded in this case pointed out, and as the court agreed, there is no justification for denying Edie Windsor the same right as all other spouses to her full inheritance without paying a tax penalty,” Nadler said. “Edie lives in my congressional district, and was with her wife, Thea Spyer, for 44 years. The last thing she should have to worry about following the loss of her spouse is an unjust tax penalty imposed for no other reason than the fact that she and her wife were the same gender.”
In his dissenting opinion, Straub dissents in part and concurs in part, saying he disagrees with the majority opinion that DOMA is unconstitutional and the legislative approach is the appropriate course of action for those who want it lifted from the books.
“The Congress and the President formalized in DOMA, for federal purposes, the basic human condition of joining a man and a woman in a long-term relationship and the only one which is inherently capable of producing another generation of humanity,” Straub writes. “Whether that understanding is to continue is for the American people to decide via their choices in electing the Congress and the President. It is not for the Judiciary to search for new standards by which to negate a rational expression of the nation via the Congress.”
Stenger said she thinks the dissent will have value “to the people who disagree” with the majority opinion to justify their position, but otherwise have little impact.
“The Supreme Court obviously studies all the detail of a dissent in making its own decision, so it may find something in there persuasive, but technically it has no impact,” Stenger said. “It may just give food-for-thought to somebody who’s inclined to go in that direction.”
NOTE: This post has been edited and updated to include more information and reaction to the Second Circuit ruling.
National
Demonstrators disrupt OMB director hearing over PEPFAR
Capitol Police arrested five protesters
A group of protesters interrupted Office of Management and Budget Director Russell Vought during his testimony before Congress on Wednesday.
Vought was at the Cannon House Office Building to give testimony to the House Budget Committee.
Committee Chair Jodey Arrington (R-Texas) began the hearing by touting what he described as economic accomplishments of the Trump-Vance administration’s economic accomplishments. Ranking Member Brendan Boyle (D-Pa.) disputed those claims in his opening statement.
Boyle went on to admonish Vought for not attending a committee hearing in the previous year.
Vought, the “Project 2025” architect, was invited to speak after Arrington and Boyle made their statements.
Shortly after Vought began reading his statement, Housing Works CEO Charles King stood up in the gallery and began shouting, “PEPFAR saves lives: spend the money!”
The U.S. Capitol Police moved quickly to escort King from the room. Other activists began chanting with King as they unfolded signs bearing a picture of Vought’s face and statements such as, “Vought’s cuts kill people with AIDS,” and “Protect PEPFAR from Vought.”
The group of HIV/AIDS activists included independent activists, former U.S. Agency for International Development and PEPFAR staff, members of Health GAP, Housing Works, and the Treatment Action Group. Six activists were escorted from the hearing and the U.S. Capitol Police detained five of them.
The HIV/AIDS treatment activists protested at the hearing in response to the dismantling of global health programs, including PEPFAR, a federally-funded program credited with saving millions of lives from HIV/AIDS, particularly in sub-Saharan Africa.
“Russell Vought is directly responsible for illegally withholding Congressionally appropriated funds for PEPFAR and related global health initiative,” King said in a statement provided to the Washington Blade. “These funding disruptions have already contributed to preventable deaths and threaten to reverse decades of progress in the fight against HIV worldwide. Enough is enough. Congress must ensure Vought stops this deadly sabotage.”
National
HIV/AIDS group NMAC is ‘destabilized’ and in financial crisis: sources
Organization disputes allegations of mismanagement by new CEO
A statement sent to the Washington Blade by an anonymous source claiming to be a current staff member at NMAC, formerly known as the National Minority AIDS Council, alleges that the prominent HIV/AIDS advocacy organization is facing “a rapid and systemic collapse of leadership, governance, and ethical standards.”
The three-page detailed statement sent on April 4 by someone identifying himself only as “John Doe” includes multiple specific allegations that NMAC CEO Harold Phillips, who began his position in October 2025, “has destabilized the organization at every level,” including hiring nine new high-level appointees with salaries of $220,000 each who are performing “duplicative and unjustifiable roles.”
The Blade was able to corroborate some of the allegations by talking to two other knowledgable sources who spoke on condition of anonymity. Those sources said they had received the John Doe statement and believed many, if not most, of its allegations were accurate.
With a total staff of about 30 to 35 employees, the John Doe statement claims the high salaries of the nine new staff members have added to financial problems NMAC has been facing in recent years. It says that at least two NMAC staffers who raised concerns about Phillips’s actions were terminated on grounds of insubordination.
One of the two anonymous sources who spoke to the Blade said one of the dismissed staff members was considering filing a lawsuit against NMAC in response to the firing.
“An external firm was recently brought in to assess the organizational health,” the John Doe statement to the Blade says. “The findings were staggering — more than 50% of staff reported they are actively seeking employment elsewhere,” it says.
The Blade sent the John Doe statement to NMAC this week and asked for a response to the allegations.
NMAC spokesperson Jennifer Moore Phillips, who serves as chief strategy officer and who is not related to Harold Phillips, sent the Blade a short statement calling the John Doe allegations “false and purposefully misleading,” but which did not comment on each of the specific allegations.
“A recent anonymous letter containing unfounded allegations about NMAC makes claims that are simply false and purposefully misleading,” the NMAC statement says. “Evidenced by our new strategic plan and recent successful Biomedical HIV Prevention Summit in Chicago, NMAC’s new leadership is laser focused on delivering on our mission serving the HIV community with renewed energy and vision,” the statement concludes.
The Biomedical HIV Prevention Summit referred to in the statement, which took place in Chicago April 8-10 of this year, is one of the two largest HIV/AIDS related conferences that NMAC organizes each year. Jennifer Phillips said more than 1,400 people attended the event.
The largest NMAC event, the United States Conference on HIV/AIDS, the most recent of which was held in D.C. Sept. 4-7, drew more than 2,400 participants and was hailed by AIDS activists as a highly successful gathering of a diverse group of experts seeking to push for the end to the HIV/AIDS epidemic.
One of the keynote speakers at that conference was Paul Kawata, who served as executive director and CEO of NMAC for 36 years and who delivered his farewell address at the conference following the announcement that he would retire on Oct. 7, 2025.
Many of the conference speakers praised Kawata, who became NMAC’s leader two years after its founding in 1987, as the leading force behind its growth and evolution into one of the nation’s leading HIV/AIDS advocacy organizations with a special outreach to people of color.
It was at that time that Harold Phillips, who served as director of the White House Office of AIDS Policy under then-President Joe Biden and who later joined NMAC as deputy director before the NMAC board named him Kawata’s successor as CEO, emerged as NMAC’s next leader.
“The Board has exuberantly elected Harold Phillips as our new CEO,” said Lance Toma, chair of the NMAC Board of Directors at the time Phillips’s appointment was announced. “In this unprecedented moment, there is no one more strategically positioned and experienced to lead our movement through what we know will be some of the most tumultuous and complicated times ahead,” the statement said.
The John Doe statement raising questions about Phillips’s actions and leadership says NMAC staff members formally appealed to the board of directors to intervene.
“The Board has remained silent, while Harold arrogantly told the staff that ‘the board has my back,’” the statement says.
The Blade has also attempted to reach out to Kawata by email for comment on how he feels NMAC is doing six months after his retirement. As of April 14, Kawata had not responded to the Blade’s inquiry.
According to the John Doe statement, NMAC officials have recently “sought external financial rescue,” including a visit by an NMAC official to California to request assistance from the pharmaceutical company Gilead Sciences. “Without such intervention, layoffs seem imminent,” the statement says.
“This is not a functioning nonprofit,” the John Doe statement concludes. “It is an organization in crisis – bleeding resources, hemorrhaging staff, and operating without transparency, accountability, or governance,” it says, adding, “The communities NMAC serves, the donors who fund its mission, and the public at large deserve to know what is happening behind closed doors.”
By contrast, the NMAC website describes the organization as a highly functioning nonprofit continuing to lead the fight against HIV/AIDS.
“Launched in 1987 during the early years of the HIV/AIDS crisis in the United States, NMAC is a national HIV organization that offers capacity building, leadership development, policy education, and public engagement to end the HIV epidemic among communities most impacted in the United States,” a statement on the NMAC website says.
“In 2026, we mark 45 years of the HIV movement,” the statement adds. “NMAC continues to pivot to center the needs of people of color impacted by HIV by responding to political challenges that threaten federal funding and programs that have provided an essential survival safety net,” it says. “Simultaneously, as HIV treatment allows people to age with HIV, our whole-person approach extends to achieving optimal quality of life beyond attaining viral suppression.”
In its most recent action, NMAC issued a detailed press release on April 14 criticizing President Donald Trump’s proposed fiscal year 2027 budget provisions that call for cutting more than $1.5 billion in HIV prevention, substance use, housing and other programs. The release provides details on how the cuts would negatively impact important HIV prevention programs and urges Congress to reject the proposed cuts.
Federal Government
Inside the LGBTQ records of Todd Blanche and Markwayne Mullin
Two men are acting attorney general, DHS secretary
President Donald Trump became famous for his use of the phrase “You’re fired!” while hosting the reality TV show “The Apprentice” in the early 2000s. However, during his time in the Oval Office, he has attempted to distance himself from that image.
Despite those efforts, the phrase once again comes to mind as Trump has fired two high-level female Cabinet members within the past month: Pam Bondi and Kristi Noem.
Their replacements — Todd Blanche at the Justice Department and Markwayne Mullin at the Department of Homeland Security — bring records that, while different in depth, both reflect limited support for LGBTQ protections and, in some cases, direct opposition.
Todd Blanche
Acting attorney general
Little has been found regarding Todd Blanche’s LGBTQ history prior to his role as acting head of the Department of Justice. Unlike those who have worked within the Justice Department’s Civil Rights Division or served as state attorneys general, he has not developed a public-facing legal ideology on LGBTQ issues.
Blanche attended American University for his undergraduate studies — like fellow Trump attorney Michael Cohen — where he met his future wife, Kristin, who was studying at nearby Catholic University in D.C.
He began his legal career as an intern at the U.S. Attorney’s Office in Washington, which eventually became a full-time position. He later worked as a paralegal in the U.S. Attorney’s Office for the Southern District of New York while attending Brooklyn Law School at night. Blanche graduated cum laude in 2003. He and his wife later married and had two children.
Blanche left the U.S. attorney’s office in 2014, taking a job in the Manhattan office of the law firm WilmerHale. In September 2017, he moved to Cadwalader, Wickersham & Taft LLP, where he was a partner in the White Collar Defense and Investigations practice.
In his personal capacity, he represented several figures associated with Donald Trump and former New York City Mayor Rudy Giuliani, including Trump’s former campaign manager Paul Manafort, businessman Igor Fruman, and attorney Boris Epshteyn.
In 2024, Blanche switched from Democrat to Republican, aligning himself with Trump’s political orbit. He later served as Trump’s personal defense attorney in the New York State case that led to Trump’s 2024 conviction on 34 felony counts of falsifying business records to cover up hush-money payments to bisexual adult film star Stormy Daniels.
Now the highest-ranking official at the Justice Department, Blanche has played a central role in overseeing the department and has been involved in leadership decisions tied to several controversial actions affecting LGBTQ people.
In a letter to New York Attorney General Letitia James, Blanche declared that the Justice Department “will not sit idly by while you attempt to use your office to force harmful procedures on our most vulnerable population,” if legal action were taken against NYU Langone. The hospital had “permanently” ended a program earlier that month after the Trump-Vance administration threatened to pull all federal funding if it continued prescribing puberty blockers and hormones to minors.
Blanche wrote that “the Justice Department believes the law is clear, and anti-discrimination laws cannot be used to force NYU Langone to perform sex-rejecting procedures on children.”
“As just one example, your office’s position would require a hospital to prescribe certain medications for certain diagnoses, regardless of the hospital’s or its doctors’ independent medical determination about the propriety of such treatment,” he said.
Blanche also echoed his predecessor’s public stance on limiting LGBTQ-related protections at the federal level, aligning with Bondi’s sentiments in June 2025 regarding the U.S. Supreme Court’s 6–3 decision that restricted LGBTQ history lessions in schools and limits lower federal courts from issuing nationwide injunctions — rulings that have often blocked Trump administration policies.
Calling it “another great decision that came down today,” Blanche argued that the ruling “restores parents’ rights to decide their child’s education,” adding: “It seems like a basic idea, but it took the Supreme Court to set the record straight, and we thank them for that. And now that ruling allows parents to opt out of dangerous trans ideology and make the decisions for their children that they believe is correct.”
In December 2025, a Justice Department memo stated that, “effective immediately,” prisons and jails would no longer be held responsible for violations of standards meant to protect LGBTQ people from harassment, abuse, and rape under the Prison Rape Elimination Act. The law, passed unanimously by Congress in 2003, requires that incarcerated people be screened for their risk of sexual assault, including consideration of LGBTQ status, and applies to all correctional facilities.
Additionally, when the Justice Department, under Blanche’s deputy leadership and at Trump’s behest, attempted to force Children’s National Hospital in D.C. to turn over medical records related to gender-affirming care, U.S. District Judge Julie R. Rubin ruled that the effort “appears to have no purpose other than to intimidate and harass.”
Blanche is also described as having a “strong belief in executive authority.”
Markwayne Mullin
Secretary of Homeland Security
While Blanche’s record is defined more by recent actions than a long paper trail, Markwayne Mullin brings a more established history on LGBTQ issues from his time in Congress.
The head of the Department of Homeland Security has served in Congress since 2013, in both the U.S. House of Representatives and U.S. Senate. He has been actively engaged in shaping restrictions and aligns with broader cultural rhetoric that frames anti-LGBTQ speech as protected expression.
In May 2016, Mullin criticized the Department of Education and the Justice Department’s “Dear Colleague” letter on transgender students, arguing that trans girls should not use girls’ restrooms in public schools.
By January 2021, Mullin and then-Hawaii Congresswoman Tulsi Gabbard had introduced a bill to prevent trans women from participating in women’s sports.
Mullin was not recorded as voting on the final passage of the Respect for Marriage Act, which codified federal recognition of same-sex and interracial marriage.
In 2023, Mullin received a rating of just 6 percent from the Human Rights Campaign.
While serving in the Senate and as a member of the Health, Education, Labor, and Pensions (HELP) Committee, Mullin has been a vocal critic of policies aimed at expanding LGBTQ inclusion in federal programs. He has participated in broader Republican efforts questioning equity-based implementation of the Older Americans Act, including guidance related to sexual orientation and gender identity in aging services, arguing such policies could have unintended consequences.
Mullin also makes history as the first Native American — and a citizen of the Cherokee Nation — to lead the Department of Homeland Security.
He was among the 147 Republicans who voted to overturn the 2020 presidential election results despite no evidence of widespread fraud, and was present in the House on Jan. 6.
The Washington Blade reached out to DHS and the DOJ for comment on the two cabinet choices’ records on LGBTQ rights. DHS responded, telling the Blade, “Secretary Mullin’s record at the Department of Homeland Security will be one of protecting ALL Americans,” while the DOJ has yet to respond.
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