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Prop 8 attorneys confident court will strike down marriage ban

Olson hopes U.S. gov’t will take part in lawsuit

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Ted Olson, gay news, Washington Blade
Ted Olson speaks at the Cato Institute

Ted Olson said U.S. government intervention in the Prop 8 case would have “great effect’ on its outcome (Washington Blade file photo by Michael Key)

The organizers behind the lawsuit challenging California’s Proposition 8 are excited and optimistic about the prospects for a Supreme Court ruling against the anti-gay measure as one attorney on the team said he hopes the Obama administration will assist in the effort.

Ted Olson, a co-counsel in the Prop 8 lawsuit, made the remarks during a conference call on Friday in response to a question from Politico’s Josh Gerstein. Olson said a friend-of-the-court brief from the Justice Department would have “great effect” in the effort to overturn Prop 8.

“I would hate to predict what the United States government is doing, but given the stand the president of the United States and the attorney general of the United States made with respect to marriage equality, we would certainly hope that they would participate,” Olson said. “And I’m quite confident that if they did participate, they would support our position in this case because the denial of equal rights is subject to close scrutiny by the courts and cannot withstand that scrutiny.”

Olson said if the Obama administration were to file a brief before the Supreme Court in the Prop 8 case, it would do so at about the same time it would file a brief in the DOMA case. The Justice Department has already filed briefs against DOMA in lower courts.

The Obama administration has thus far stayed out of the Prop 8 case. Asked in September by the Washington Blade whether the U.S. government would weigh in, White House Press Secretary Jay Carney had no comment and Nanda Chitre, a spokesperson for the Justice Department, said, “We are not a party to this litigation and would decline further comment.”

That might change now that the Supreme Court has taken up the case. Like other interested parties, the Justice Department will have an opportunity to file a friend-of-the-court brief in the upcoming days as the court accepts other briefs in the lawsuit.

The organization behind the lawsuit, the American Foundation for Equal Rights, held the conference call in the wake of the Supreme Court’s decision to take up the Prop 8 case as well as one of the cases against the Defense of Marriage Act known as Windsor v. United States.

Olson was confident about a positive outcome for same-sex couples, saying the denial of their marriage rights will receive significant attention simply by being before the Supreme Court.

“We have an exhaustive record on which to build this case, and it will be an education for the American people,” Olson said. “We are very confident the outcome of this case will be to support the rights of our gay and lesbian brothers and sisters.”

David Boies, co-counsel in the lawsuit, said the decision of the Supreme Court to take up the case means only a short time remains before a final resolution is reached in the Prop 8 case.

“We are now literally within months of getting a final resolution of this case that began three-and-a-half years ago,” Boies said. “I think we are encouraged and excited about the prospect that we will finally get a decision on the merits with respect to marriage equality. This is a momentous case; I think the attention that it has already received by the Supreme Court indicates their recognition of the importance of this issue.”

Human Rights Campaign President Chad Griffin, who co-founded AFER, also expressed excitement about the prospects of a victory at the Supreme Court on the conference call.

“Today is nothing short of a milestone moment, quite frankly, for equality,” Griffin said. “We are gratified that the court has taken this challenge to Prop 8. We should also mention the challenge to the ridiculously named Defense of Marriage Act. Millions of loving couples — married and unmarried — have been waiting for their day in court, and now they’re finally going to have it.”

Also taking part in the conference call were the two plaintiff couples in the case: Kris Perry and Sandy Stier, who tried to obtain a marriage license in Alameda County, as well as Jeff Zarrillo and Paul Katami, who tried to obtain a marriage license in Los Angeles.

Had the Supreme Court decided not to take up Prop 8, a U.S. Ninth Circuit Court of Appeals ruling against the measure would have been allowed to stand and same-sex marriage would have returned to California.

But plaintiffs in the case didn’t express disappointment. Asked whether she’s unhappy the Supreme Court took up the case, Perry replied, “You may find this a little surprising: the answer is ‘no’.”

“We’ve always been very patient and understanding of this process,” Perry said. “We always wanted the biggest, boldest outcome possible, and that can only happen if the Supreme Court listens to the case.”

Stier echoed those remarks, saying she feels “zero disappointment,” but instead hope that areas affected by discrimination other than in California will obtain relief as a result of the case.

Also during the conference call, Olson and Boies answered questions about the the Supreme Court’s request for additional briefings on whether opponents of Prop 8 have standing to defend the law in court. California state officials aren’t defending the law in court, and anti-gay groups have taken up defense of the anti-gay measure instead.

Olson said that question may present an opportunity for the Supreme Court to strike down Prop 8 on the grounds that anti-gay groups can’t defend the law in court as opposed to deciding the case on the merits. Such a ruling would abrogate a ruling against Prop 8 from the Ninth Circuit that allowed anti-gay groups and let stand a district court ruling against the measure.

“If the court were to decide this on standing as far as the Perry case is concerned, that would reinstate the 134-page opinion from District Judge Vaughn Walker, which decided all of the issues comprehensively in favor of the constitutional rights of marriage equality,” Olson said.

Asked by Buzzfeed’s Chris Geidner whether attorneys would actively argue that proponents of Prop 8 don’t have standing in court, Boies said that would indeed be the case.

“We will be making the standing argument,” Boies said. “We think the standing argument is strongly supported by existing Supreme Court precedent.”

The Prop 8 attorneys had previously filed a brief with the Supreme Court asking justices not to hear the case, but Olson said during the conference call his team has maintained at the same time that the lawsuit would be “the perfect vehicle” for deciding the right to marriage equality throughout the country.

“Gay and lesbians and all citizens have the right to have this issue … before the court with a fully developed record, with evidence on history, the importance of marriage, the damage done by discrimination and the fact that all Americans will benefit by the fact that people will be treated equally throughout this country to marry the person that they love,” Olson said.

In response to a question from The Huffington Post’s Sam Stein on whether opponents of Prop 8 would be better off if a ruling against DOMA came first, Olson denied sequencing would be a problem, saying, “We have never agreed with those concerns.”

“In short, the record is so complete that we have always felt that if the issue of marriage equality was going to be before the Supreme Court, the Proposition 8 Perry case should be a part of it because it has vastly more developed evidentiary record and specific thoughtful findings by a district judge who listened to all the evidence, and there was no evidence of any persuasive effect on the other side,” Olson said.

The opportunity for the court to hear the Prop 8 lawsuit means the Supreme Court may make a national ruling on same-sex marriage that affects not just California, but every state in the country with a ban on same-sex marriage.

Asked by The Advocate’s Julie Bolcer about scenarios in which a Supreme Court ruling might have an impact outside California, Boies said may justices may issue a ruling with larger reach depending on the way they examine the case.

Boies said if the Supreme Court addresses in its ruling the “fundamental merit” issue of whether discrimination against gays and lesbians is unconstitutional under the U.S. Constitution, that ruling would mean “there would be a fundamental right to marry in every state in the country because obviously the federal Constitution applies to every state in the country.”

Still, Boies said the ruling would be limited to California if justices decide the case on same narrow ground as the Ninth Circuit or simply determine that proponents of Prop 8 don’t have standing to defend the law in court. Even so, Boies said such rulings would establish precedent that would have an impact on other marriage cases throughout the country.

NOTE: An additional quote from Olson was added to this piece following its initial publication that better reflected his confidence the Supreme Court would strike down Prop 8 on its merits.

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Pennsylvania

Erica Deuso elected as Pa.’s first openly transgender mayor

‘History was made.’

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Erica Deuso (Photo courtesy of LPAC)

Erica Deuso will become the first openly transgender mayor in Pennsylvania.

Voters in Downingtown elected Deuso on Tuesday with 64 percent of the vote, according to the Philadelphia Inquirer. The Democrat ran against Republican Richard Bryant.

Deuso, 45, currently works at Johnson & Johnson and has lived in Downingtown since 2007. The mayor-elect is originally from Vermont and graduated from Drexel University.

Deuso released a statement following her election, noting that “history was made.”

“Voters chose hope, decency, and a vision of community where every neighbor matters,” Deuso stated. “I am deeply honored to be elected as Pennsylvania’s first openly transgender mayor, and I don’t take that responsibility lightly.”

According to a LGBTQ+ Victory Institute report released in June, the U.S. has seen a 12.5 percent increase in trans elected officials from 2024 to 2025. Still, Deuso’s campaign did not heavily focus on LGBTQ policy or her identity. She instead prioritized public safety, environmental resilience, and town infrastructure, according to Deuso’s campaign website.

Deuso has served on the boards of the Pennsylvania Equality Project, PFLAG West Chester/Chester County, and Emerge Pennsylvania, according to the LGBTQ+ Victory Fund. She is also an executive member of the Chester County Democratic Committee.

“This victory isn’t about one person, it’s about what happens when people come together to choose progress over fear. It’s about showing that leadership can be compassionate, practical, and focused on results. Now the real work begins, building a Downingtown that is safe, sustainable, and strong for everyone who calls it home,” Deuso said.

Downingtown has a population of more than 8,000 people and is a suburb of Philadelphia. The town’s current mayor, Democrat Phil Dague, did not seek a second term.

Janelle Perez, the executive director of LPAC, celebrated Deuso’s victory. The super PAC endorses LGBTQ women and nonbinary candidates with a commitment to women’s equality and social justice, including Deuso.

“Downingtown voters delivered a resounding message today, affirming that Erica represents the inclusive, forward-looking leadership their community deserves, while rejecting the transphobic rhetoric that has become far too common across the country,” Perez said. “Throughout her campaign, Erica demonstrated an unwavering commitment to her future constituents and the issues that matter most to them. LPAC is proud to have supported her from the beginning of this historic campaign, and we look forward to the positive impact she will have as mayor of Downingtown.”

Deuso will be sworn in as mayor on Jan. 7.

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U.S. Supreme Court

LGBTQ legal leaders to Supreme Court: ‘honor your president, protect our families’

Experts insist Kim Davis case lacks merit

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Protesters outside of the Supreme Court fly an inclusive Pride flag in December 2024. (Washington Blade Photo by Michael Key)

The U.S. Supreme Court considered hearing a case from Kim Davis on Friday that could change the legality of same-sex marriage in the United States.

Davis, best known as the former county clerk for Rowan County, Ky., who defied federal court orders by refusing to issue marriage licenses to same-sex couples — and later, to any couples at all — is back in the headlines this week as she once again attempts to get Obergefell v. Hodges overturned on a federal level.

She has tried to get the Supreme Court to overturn this case before — the first time was just weeks after the initial 2015 ruling — arguing that, in her official capacity as a county clerk, she should have the right to refuse same-sex marriage licenses based on her First Amendment rights. The court has emphatically said Davis, at least in her official capacity as a county clerk, does not have the right to act on behalf of the state while simultaneously following her personal religious beliefs.

The Washington Blade spoke with Karen Loewy, interim deputy legal director for litigation at Lambda Legal, the oldest and largest national legal organization advancing civil rights for the LGBTQ community and people living with HIV through litigation, education, and public policy, to discuss the realistic possibilities of the court taking this case, its potential implications, and what LGBTQ couples concerned about this can do now to protect themselves.

Loewy began by explaining how the court got to where it is today.

“So Kim Davis has petitioned the Supreme Court for review of essentially what was [a] damages award that the lower court had given to a couple that she refused a marriage license to in her capacity as a clerk on behalf of the state,” Loewy said, explaining Davis has tried (and failed) to get this same appeal going in the past. “This is not the first time that she has asked the court to weigh in on this case. This is her second bite at the apple at the U.S. Supreme Court, and in 2020, the last time that she did this, the court denied review.”

Davis’s entire argument rests on her belief that she has the ability to act both as a representative of the state and according to her personal religious convictions — something, Loewy said, no court has ever recognized as a legal right.

“She’s really claiming a religious, personal, religious exemption from her duties on behalf of the state, and that’s not a thing.”

That, Loewy explained, is ultimately a good thing for the sanctity of same-sex marriage.

“I think there’s a good reason to think that they will, yet again, say this is not an appropriate vehicle for the question and deny review.”

She also noted that public opinion on same-sex marriage remains overwhelmingly positive.

“The Respect for Marriage Act is a really important thing that has happened since Obergefell. This is a federal statute that mandates that marriages that were lawfully entered, wherever they were lawfully entered, get respect at the federal level and across state lines.”

“Public opinion around marriage has changed so dramatically … even at the state level, you’re not going to see the same immediate efforts to undermine marriages of same-sex couples that we might have a decade ago before Obergefell came down.”

A clear majority of U.S. adults — 65.8 percent — continue to support keeping the Obergefell v. Hodges decision in place, protecting the right to same-sex marriage. That support breaks down to 83 percent of liberals, 68 percent of moderates, and about half of conservatives saying they support marriage equality. These results align with other recent polling, including Gallup’s May 2025 estimate showing 68 percent support for same-sex marriage.

“Where we are now is quite different from where we were in terms of public opinion … opponents of marriage equality are loud, but they’re not numerous.”

Loewy also emphasized that even if, by some chance, something did happen to the right to marry, once a marriage is issued, it cannot be taken back.

“First, the Respect for Marriage Act is an important reason why people don’t need to panic,” she said. “Once you are married, you are married, there isn’t a way to sort of undo marriages that were lawfully licensed at the time.”

She continued, explaining that LGBTQ people might feel vulnerable right now as the current political climate becomes less welcoming, but there is hope — and the best way to respond is to move thoughtfully.

“I don’t have a crystal ball. I also can’t give any sort of specific advice. But what I would say is, you know, I understand people’s fear. Everything feels really vulnerable right now, and this administration’s attacks on the LGBTQ community make everybody feel vulnerable for really fair and real reasons. I think the practical likelihood of Obergefell being reversed at this moment in time is very low. You know, that doesn’t mean there aren’t other, you know, case vehicles out there to challenge the validity of Obergefell, but they’re not on the Supreme Court’s doorstep, and we will see how it all plays out for folks who feel particularly concerned and vulnerable.”

Loewy went on to say there are steps LGBTQ couples and families can take to safeguard their relationships, regardless of what the court decides. She recommended getting married (if that feels right for them) and utilizing available legal tools such as estate planning and relationship documentation.

“There are things, steps that they can take to protect their families — putting documentation in place and securing relationships between parents and children, doing estate planning, making sure that their relationship is recognized fully throughout their lives and their communities. Much of that is not different from the tools that folks have had at their disposal prior to the availability of marriage equality … But I think it behooves everyone to make sure they have an estate plan and they’ve taken those steps to secure their family relationships.”

“I think, to the extent that the panic is rising for folks, those are tools that they have at their disposal to try and make sure that their family and their relationships are as secure as possible,” she added.

When asked what people can do at the state and local level to protect these rights from being eroded, Loewy urged voters to support candidates and initiatives that codify same-sex marriage at smaller levels — which would make it more difficult, if not impossible, for a federal reversal of Obergefell to take effect.

“With regard to marriage equality … states can be doing … amend state constitutions, to remove any of the previous language that had been used to bar same-sex couples from marrying.”

Lambda Legal CEO Kevin Jennings echoed Loewy’s points in a statement regarding the possibility of Obergefell being overturned:

“In the United States, we can proudly say that marriage equality is the law,” he said via email. “As the Supreme Court discusses whether to take up for review a challenge to marriage equality, Lambda Legal urges the court to honor what millions of Americans already know as a fundamental truth and right: LGBTQ+ families are part of the nation’s fabric.

“LGBTQ+ families, including same-sex couples, are living in and contributing to every community in this country: building loving homes and small businesses, raising children, caring for pets and neighbors, and volunteering in their communities. The court took note of this reality in Obergefell v. Hodges, citing the ‘hundreds of thousands of children’ already being raised in ‘loving and nurturing homes’ led by same-sex couples. The vows that LGBTQ+ couples have taken in their weddings might have been a personal promise to each other. Still, the decision of the Supreme Court is an unbreakable promise affirming the simple truth that our Constitution guarantees equal treatment under the law to all, not just some.”

He noted the same things Loewy pointed out — namely that, at minimum, the particular avenue Davis is attempting to use to challenge same-sex marriage has no legal footing.

“Let’s be clear: There is no case here. Granting review in this case would unnecessarily open the door to harming families and undermine our rights. Lower courts have found that a government employee violates the law when she refuses to grant marriage licenses to same-sex couples as her job requires. There is no justifiable reason for the court to revisit settled law or destabilize families.”

He also addressed members of the LGBTQ community who might be feeling fearful at this moment:

“To our community, we say: this fight is not new. Our community has been fighting for decades for our right to love whom we love, to marry and to build our families. It was not quick, not easy, not linear. We have lived through scary and dark times before, endured many defeats, but we have persevered. When we persist, we prevail.”

And he issued a direct message to the court, urging justices to honor the Constitution over one person’s religious beliefs.

“To the court, we ask it to honor its own precedent, to honor the Constitution’s commands of individual liberty and equal protection under the law, and above all, to honor the reality of LGBTQ families — deeply rooted in every town and city in America. There is no reason to grant review in this case.”

Kenneth Gordon, a partner at Brinkley Morgan, a financial firm that works with individuals and couples, including same-sex partners, to meet their legal and financial goals, also emphasized the importance of not panicking and of using available documentation processes such as estate planning.

“From a purely legal standpoint, overturning Obergefell v. Hodges would present significant complications. While it is unlikely that existing same-sex marriages would be invalidated, particularly given the protections of the 2022 Respect for Marriage Act, states could regain the authority to limit or prohibit future marriage licenses to same-sex couples. That would create a patchwork of laws across the country, where a couple could be legally married in one state but not recognized as married if they moved to or even visited another state.

“The legal ripple effects could be substantial. Family law issues such as adoption, parental rights, inheritance, health care decision-making, and property division all rely on the legal status of marriage. Without uniform recognition, couples could face uncertainty in areas like custody determinations, enforcement of spousal rights in medical emergencies, or the ability to inherit from a spouse without additional legal steps.

“Courts generally strive for consistency, and creating divergent state rules on marriage recognition would reintroduce conflicts that Obergefell was intended to resolve. From a legal systems perspective, that inconsistency would invite years of litigation and impose significant personal and financial burdens on affected families.”

Finally, Human Rights Campaign President Kelley Robinson issued a statement about the possibility of the Supreme Court deciding to hear Davis’s appeal:

“Marriage equality isn’t just the law of the land — it’s woven into the fabric of American life,” said Robinson. “For more than a decade, millions of LGBTQ+ couples have gotten married, built families, and contributed to their communities. The American people overwhelmingly support that freedom. But Kim Davis and the anti-LGBTQ+ extremists backing her see a cynical opportunity to attack our families and re-litigate what’s already settled. The court should reject this paper-thin attempt to undermine marriage equality and the dignity of LGBTQ+ people.”

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U.S. Supreme Court

Supreme Court rules White House can implement anti-trans passport policy

ACLU, Lambda Legal filed lawsuits against directive.

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(Bigstock photo)

The U.S. Supreme Court on Thursday said the Trump-Vance administration can implement a policy that bans the State Department from issuing passports with “X” gender markers.

President Donald Trump once he took office signed an executive order that outlined the policy. A memo the Washington Blade obtained directed State Department personnel to “suspend any application where the applicant is seeking to change their sex marker from that defined in the executive order pending further guidance.”

The White House only recognizes two genders: male and female.

The American Civil Liberties Union in February filed a lawsuit against the passport directive on behalf of seven trans and nonbinary people.

A federal judge in Boston in April issued a preliminary junction against it. A three-judge panel on the 1st U.S. Circuit Court of Appeals in September ruled against the Trump-Vance administration’s motion to delay the move.

A federal judge in Maryland also ruled against the passport policy. (Lambda Legal filed the lawsuit on behalf of seven trans people.)

 “This is a heartbreaking setback for the freedom of all people to be themselves, and fuel on the fire the Trump administration is stoking against transgender people and their constitutional rights,” said Jon Davidson, senior counsel for the ACLU’s LGBTQ and HIV Project, in a statement. “Forcing transgender people to carry passports that out them against their will increases the risk that they will face harassment and violence and adds to the considerable barriers they already face in securing freedom, safety, and acceptance. We will continue to fight this policy and work for a future where no one is denied self-determination over their identity.”

Justices Ketanji Brown Jackson, Elena Kagan, and Sonia Sotomayor dissented.

The Supreme Court ruling is here.

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