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.
New York
Court orders Pride flag to return to Stonewall
Lambda Legal, Washington Litigation Group filed federal lawsuit
The Pride flag will once again fly over the Stonewall National Monument in New York following a court order requiring the National Park Service to raise it over the site.
The decision follows a lawsuit filed by Lambda Legal and the Washington Litigation Group in the U.S. District Court for the Southern District of New York, which challenged the removal as unconstitutional under the Administrative Procedure Act and argued that the government unlawfully targeted the LGBTQ community.
In February, the NPS removed the Pride flag from the Stonewall National Monument, the first national monument dedicated to LGBTQ rights and history in the U.S. The move followed a Jan. 21 memorandum issued by President Donald Trump-appointed NPS Director Jessica Bowron restricting which flags may be flown at national parks. The directive limited displays to official government flags, with narrow exceptions for those deemed to serve an “official purpose.”
Plaintiffs successfully argued that the Pride flag meets that standard, given Stonewall’s status as the birthplace of the modern LGBTQ rights movement. They also contended that the policy violated the APA by bypassing required public input and improperly applying agency rules.
The lawsuit named Interior Secretary Doug Burgum, Bowron, and Amy Sebring, superintendent of Manhattan sites for the NPS, as defendants. Plaintiffs included the Gilbert Baker Foundation, Village Preservation, Equality New York, and several individuals.
The court found that the memorandum — while allowing limited exceptions for historical context purposes — was applied unlawfully in this case. As part of the settlement, the NPS is required to rehang the Pride flag on the monument’s official flagpole within seven days, where it will remain permanently.
“The sudden, arbitrary, and capricious removal of the Pride flag from the Stonewall National Monument was yet another act by this administration to erase the LGBTQ+ community,” said Karen Loewy, co-counsel for plaintiffs and Lambda Legal’s Senior Counsel and Director of Constitutional Law Practice. “Today, the government has pledged to restore this important symbol back to where it belongs.”
“This is a complete victory for our clients and for the LGBTQ+ community,” said Alexander Kristofcak, lead counsel for plaintiffs and a lawyer with Washington Litigation Group. “The government has acknowledged what we argued from day one: the Pride flag belongs at Stonewall. The flag will be restored and it will fly officially and permanently. And we will remain vigilant to ensure that the government sticks to the deal.”
“Gilbert Baker created the Rainbow Pride flag as a symbol of hope and liberation,” said Charles Beal, president of the Gilbert Baker Foundation. “Today, that symbol is restored to the place where it belongs, standing watch over the birthplace of the modern LGBTQ+ rights movement.”
“The government tried to erase an important symbol of the LGBTQ+ community, and the community said no,” said Amanda Babine, executive director of Equality New York. “Today’s accomplishment proves that when we stand together and fight back, we win.”
“The removal of the Pride flag from Stonewall was an attempt to erase LGBTQ+ history and undermine the rule of law,” said Andrew Berman, executive director of Village Preservation. “This settlement restores both.”
With Loewy on the complaint are Douglas F. Curtis, Camilla B. Taylor, Omar Gonzalez-Pagan, Kenneth D. Upton Jr., Jennifer C. Pizer, and Nephetari Smith from Lambda Legal. With Kristofcak on the complaint are Mary L. Dohrmann, Sydney Foster, Kyle Freeny, James I. Pearce, and Nathaniel Zelinsky from Washington Litigation Group.
Federal Government
Trump budget targets ‘gender extremism’
Proposed spending package would target ‘leftist’ political ideologies
The White House submitted its 2027 budget request to Congress last month, outlining a push for the Federal Bureau of Investigation to “proactively” target what it describes as “extremism” related to gender — raising concerns about the potential for law enforcement to target LGBTQ people.
The Trump-Vance administration’s 2027 budget request, submitted to Congress on April 4, proposes a dramatic increase in national security and law enforcement spending, while reducing foreign aid and restructuring multiple domestic security programs. In total, the administration is requesting $2.16 trillion in discretionary budget authority (including mandatory resources), a 15.3 percent increase over the 2026 proposal.
Central to the proposal is the creation of a new “NSPM-7 Joint Mission Center,” a direct follow-up to the September 2025 National Security Presidential Memorandum 7 (NSPM-7). The directive instructs the Justice Department, the FBI, and other national security agencies to combat what the administration defines as “political violence in America,” effectively reshaping the Joint Terrorism Task Force network to focus on “leftist” political ideologies, according to reporting by independent journalist Ken Klippenstein.
The American Civil Liberties Union has characterized NSPM-7 as a way for President Donald Trump to intimidate his political enemies.
In a press release following the memorandum, Hina Shamsi, director of the ACLU’s National Security Project, said, “President Trump has launched yet another effort to investigate and intimidate his critics,” and had described the move as an “intimidation tactic against those standing up for human rights and civil liberties.”
The proposed mission center would include personnel from 10 federal agencies tasked with targeting “domestic terrorists” associated with a wide range of ideologies. Among them is what the administration labels “extremism” related to gender, alongside categories such as “anti-Americanism,” “anti-capitalism,” “anti-Christianity,” and “support for the overthrow of the U.S. government.” The document also cites “hostility toward those who hold traditional American views” on family, religion, and morality — language LGBTQ advocates have increasingly warned could be used to frame queer and transgender rights movements as ideological threats.
The mission center is one component of a proposed $166 million increase in the FBI’s counterterrorism budget.
In total, the FBI would receive $12.5 billion for salaries and expenses under the proposal, a $1.9 billion increase. Planned investments include unmanned aerial systems operations and counter-drone capabilities, counterterrorism efforts, and security preparations for the 2028 Summer Olympics in Los Angeles. The budget also cites 67,000 FBI arrests since Jan. 20, 2026, which it describes as a 197 percent increase from the prior year.
When Congress passed the USA PATRIOT Act in 2001, it also enacted 18 U.S.C. § 2331(5), which defines domestic terrorism as activities involving acts dangerous to human life that violate criminal laws and are intended to intimidate or coerce civilians or influence government policy through violence. That statutory definition has not changed.
However, federal agencies have historically categorized domestic terrorism threats into groups such as racially or ethnically motivated violent extremism, anti-government or anti-authority violent extremism, and other threats, including those tied to bias based on religion, gender, or sexual orientation.
The language in the budget suggests a shift in how those categories are interpreted and applied — particularly by explicitly linking “extremism” to gender and to perceived opposition to “traditional” views — without any corresponding change to federal law. Only Congress has the power to change the definition of domestic terrorism by passing legislation.
The budget document states:
“DT lone offenders will continue to pose significant detection and disruption challenges because of their capacity for independent radicalization to violence, ability to mobilize discretely, and access to firearms. Additionally, in recent years, heinous assassinations and other acts of political violence in the United States have dramatically increased. Commonly, this violent conduct relates to views associated with anti-Americanism, anti-capitalism, and anti-Christianity; support for the overthrow of the U.S. government; extremism on migration, race, and gender; and hostility toward those who hold traditional American views on family, religion, and morality.”
This language echoes earlier actions by the Trump-Vance administration targeting trans people.
On the first day of his second term, President Trump signed Executive Order 14168, titled “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.”
The order establishes a strict binary definition of sex and withdraws federal recognition of trans people.
“It is the policy of the United States to recognize two sexes, male and female,” the order states. “‘Sex’ shall refer to an individual’s immutable biological classification as either male or female. ‘Sex’ is not a synonym for and does not include the concept of ‘gender identity.’”
Appropriations committees in both chambers are expected to begin hearings in the coming weeks.
Puerto Rico
The ‘X’ returns to court
1st Circuit hears case over legal recognition of nonbinary Puerto Ricans
Eight months ago, I wrote about this issue at a time when it had not yet reached the judicial level it faces today. Back then, the conversation moved through administrative decisions, public debate, and political resistance. It was unresolved, but it had not yet reached this point.
That has now changed.
Lambda Legal appeared before the 1st U.S. Court of Appeals in Boston, urging the court to uphold a lower court ruling that requires the government of Puerto Rico to issue birth certificates that accurately reflect the identities of nonbinary individuals. The appeal follows a district court decision that found the denial of such recognition to be a violation of the U.S. Constitution.
This marks a turning point. The issue is no longer theoretical. A court has already determined that unequal treatment exists.
The argument presented by the plaintiffs is grounded in Puerto Rico’s own legal framework. Identity birth certificates are not static historical records. They are functional documents used in everyday life. They are required to access employment, education, and essential services. Their purpose is practical, not symbolic.
Within that framework, the exclusion of nonbinary individuals does not stem from a legal limitation. Puerto Rico already allows gender marker corrections on birth certificates for transgender individuals under the precedent established in Arroyo Gonzalez v. Rosselló Nevares. In addition, the current Civil Code recognizes the existence of identity documents that reflect a person’s lived identity beyond the original birth record.
The issue lies in how the law is applied.
Recognition is granted within specific categories, while those who do not identify within that binary structure remain excluded. That exclusion is now at the center of this case.
Lambda Legal’s position is straightforward. Requiring individuals to carry documents that do not reflect who they are forces them into misrepresentation in essential aspects of daily life. This creates practical barriers, exposes them to scrutiny, and places them in a constant state of vulnerability.
The plaintiffs, who were born in Puerto Rico, have made clear that access to accurate identification is not symbolic. It is a basic condition for moving through the world without contradiction imposed by the state.
The fact that this case is now being addressed in the federal court system adds another layer of significance. This is not a pending policy discussion or a legislative proposal. It is a constitutional question. The analysis is not about political preference, but about rights and equal protection under the law.
This case does not exist in isolation.
It unfolds within a broader context in which debates over identity and rights have increasingly been shaped by the growing influence of conservative perspectives in public policy, both in the United States and in Puerto Rico. At the local level, this influence has been reflected in legislative discussions where religious arguments have begun to intersect with decisions that should be grounded in constitutional principles. That intersection creates tension around the separation of church and state and has direct consequences for access to rights.
Recognizing this context is not an attack on faith or religious practice. It is an acknowledgment that when certain perspectives move into the realm of public authority, they can shape outcomes that affect specific communities.
From within Puerto Rico, this is not a distant debate. It is a lived reality. It is present in the difficulty of presenting identification that does not match one’s identity, and in the consequences that follow in workplaces, schools, and government spaces.
The progression of this case introduces the possibility of change within the applicable legal framework. Not because it resolves every tension surrounding the issue, but because it establishes a legal examination of a practice that has long operated under exclusion.
Eight months ago, the conversation centered on ongoing developments. Today, there is already a judicial finding that identifies a violation of rights. What remains is whether that finding will be upheld on appeal.
That process does not guarantee an immediate outcome, but it shifts the ground.
The debate is no longer theoretical.
It is now before the courts.
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