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DOJ calls on Supreme Court to strike down DOMA

Obama administration cites ‘severe harms’ for gay couples

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Supreme Court, gay news, Washington Blade
Supreme Court, gay news, Washington Blade

DOJ filed a brief before the Supreme Court arguing DOMA is unconstitutional. (Washington Blade file photo by Michael Key)

The Obama administration on Friday argued that the Defense of Marriage Act  should be struck down by the Supreme Court because it “inflicts a vast array of…severe harms” on married same-sex couples.

In a 54-page legal brief, the U.S. Justice Department lays out its case for why it believes Section 3 of DOMA is unconstitutional — noting the harm the law causes married same-sex couples and the history of discrimination against gay and lesbian people — while arguing that DOMA should be subjected to heightened scrutiny, or a greater assumption it’s unconstitutional.

“The law denies to tens of thousands of same-sex couples who are legally married under state law an array of important federal benefits that are available to legally married opposite-sex couples,” the brief states. “Because this discrimination cannot be justified as substantially furthering any important governmental interest, Section 3 is unconstitutional.”

The brief is signed by Solicitor General Donald Verrilli as well as Stuart Delery, the gay principal deputy attorney general who’s litigated against DOMA in oral arguments in lower courts. The lawsuit before the Supreme Court is known as Windsor v. United States, which was filed by the American Civil Liberties Union.

The brief enumerates several benefits that are withheld from married same-sex couples under DOMA, such as the denial of certain housing benefits for service members, the lack of Social Security survivor benefits and the inability of gay Americans to sponsor their foreign-born same-sex spouses for residency in the United States. It also notes plaintiff and New York widower Edith Windsor was forced to pay $363,000 in estate taxes upon the death of her spouse, Thea Spyer.

But the Justice Department also makes the case that laws related to sexual orientation should be subjected to heightened scrutiny because gay people have been subjected to a history of discrimination, citing bias in employment and immigration as well as vulnerability to hate crimes and police harassment.

Additionally, the brief contends DOMA merits heightened scrutiny because sexual orientation bears no relation on an individual’s ability to contribute to society and gays are a minority with limited political power.

“Historically, discrimination against gay and lesbian people had nothing to do with ability or performance, but rested instead on the view that they are, for example, sexual deviants, mentally ill, or immoral,” the brief states. “Like gender, race,or religion, sexual orientation bears no inherent relation to a person’s ability to participate in or contribute to society.”

While asserting DOMA fails the test of heightened scrutiny, the Justice Department says it doesn’t challenge the law if a lower standard of rational basis review were applied. However, even under this standard, the brief maintains the law would fail under a more searching form of that review.

“To the extent sexual orientation may be considered to fall short in some dimension, the history of discrimination and the absence of relation to one’s capabilities associated with this particular classification would uniquely qualify it for scrutiny under an approach that calls for a measure of added focus to guard against giving effect to a desire to harm an ‘unpopular group,'” the brief states. “Section 3 would fail to satisfy any such analysis, largely for the reasons it fails heightened scrutiny.”

In addition to the merits brief, the Justice Department filed on the same day another brief addressing jurisdictional questions in the case. That brief responds to questions over whether the executive branch agrees DOMA is unconstitutional and whether the House Republican-led Bipartisan Legal Advisory Group has standing to participate. BLAG, following a party-line vote of 3-2, has taken up defense of DOMA in the administration’s stead.

In that 38-page brief, the Justice Department contends the Supreme Court has jurisdiction, but BLAG lacks standing to seek review of lower court decisions striking down DOMA.

“BLAG is an entity located within the Legislative Branch,” the brief states. “The Constitution assigns to that Branch only specifically enumerated ‘legislative powers.’ … Although Congress (and the individual Houses) may create offices to assist with legislative tasks, the authority of such an office may not include the ‘discretionary power to seek judicial relief’ on behalf of the United States.”

Also on Friday, other briefs were filed by the ACLU and BLAG in response to the jurisdictional questions in the case. In its brief, BLAG argues it can participate in the lawsuit, but the Justice Department doesn’t have standing to take part.

LGBT advocates have been calling on the Obama administration to file a similar brief in the lawsuit pending before the Supreme Court challenging California’s Proposition 8. As of Thursday, the White House hasn’t said whether the administration will file a brief, although President Obama said the solicitor general is “looking” at such action. The deadline for the Obama administration to file a brief in the case is Thursday.

In the DOMA case, the next step is for the ACLU to file its brief on the merits, which is expected on Tuesday. Oral arguments in the case are set for March 27 and justices are expected to render a decision before their term ends in June.

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U.S. Federal Courts

Judge temporarily blocks executive orders targeting LGBTQ, HIV groups

Lambda Legal filed the lawsuit in federal court

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President Donald Trump (Washington Blade photo by Michael Key)

A federal judge on Monday blocked the enforcement of three of President Donald Trump’s executive orders that would have threatened to defund nonprofit organizations providing health care and services for LGBTQ people and those living with HIV.

The preliminary injunction was awarded by Judge Jon Tigar of the U.S. District Court for the Northern District of California in a case, San Francisco AIDS Foundation v. Trump, filed by Lambda Legal and eight other organizations.

Implementation of the executive orders — two aimed at diversity, equity, and inclusion along with one targeting the transgender community — will be halted pending the outcome of the litigation challenging them.

“This is a critical win — not only for the nine organizations we represent, but for LGBTQ communities and people living with HIV across the country,” said Jose Abrigo, Lambda Legal’s HIV Project director and senior counsel on the case. 

“The court blocked anti-equity and anti-LGBTQ executive orders that seek to erase transgender people from public life, dismantle DEI efforts, and silence nonprofits delivering life-saving services,” Abrigo said. “Today’s ruling acknowledges the immense harm these policies inflict on these organizations and the people they serve and stops Trump’s orders in their tracks.”

Tigar wrote, in his 52-page decision, “While the Executive requires some degree of freedom to implement its political agenda, it is still bound by the constitution.”

“And even in the context of federal subsidies, it cannot weaponize Congressionally appropriated funds to single out protected communities for disfavored treatment or suppress ideas that it does not like or has deemed dangerous,” he said.

Without the preliminary injunction, the judge wrote, “Plaintiffs face the imminent loss of federal funding critical to their ability to provide lifesaving healthcare and support services to marginalized LGBTQ populations,” a loss that “not only threatens the survival of critical programs but also forces plaintiffs to choose between their constitutional rights and their continued existence.”

The organizations in the lawsuit are located in California (San Francisco AIDS Foundation, Los Angeles LGBT Center, GLBT Historical Society, and San Francisco Community Health Center), Arizona (Prisma Community Care), New York (The NYC LGBT Community Center), Pennsylvania (Bradbury-Sullivan Community Center), Maryland (Baltimore Safe Haven), and Wisconsin (FORGE).

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Activists rally for Andry Hernández Romero in front of Supreme Court

Gay asylum seeker ‘forcibly deported’ to El Salvador, described as political prisoner

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Immigrant Defenders Law Center President Lindsay Toczylowski, on right, speaks in support of her client, Andry Hernández Romero, in front of the U.S. Supreme Court on June 6, 2025. (Washington Blade photo by Michael K. Lavers)

More than 200 people gathered in front of the U.S. Supreme Court on Friday and demanded the Trump-Vance administration return to the U.S. a gay Venezuelan asylum seeker who it “forcibly disappeared” to El Salvador.

Lindsay Toczylowski, president of the Immigrant Defenders Law Center, a Los Angeles-based organization that represents Andry Hernández Romero, is among those who spoke alongside U.S. Rep. Mark Takano (D-Calif.) and Human Rights Campaign Campaigns and Communications Vice President Jonathan Lovitz. Sarah Longwell of the Bulwark, Pod Save America’s Jon Lovett, and Tim Miller are among those who also participated in the rally.

“Andry is a son, a brother. He’s an actor, a makeup artist,” said Toczylowski. “He is a gay man who fled Venezuela because it was not safe for him to live there as his authentic self.”

(Video by Michael K. Lavers)

The White House on Feb. 20 designated Tren de Aragua, a Venezuelan gang, as an “international terrorist organization.”

President Donald Trump on March 15 invoked the Alien Enemies Act of 1798, which the Associated Press notes allows the U.S. to deport “noncitizens without any legal recourse.” The Trump-Vance administration subsequently “forcibly removed” Hernández and hundreds of other Venezuelans to El Salvador.

Toczylowski said she believes Hernández remains at El Salvador’s Terrorism Confinement Center, a maximum-security prison known by the Spanish acronym CECOT. Toczylowski also disputed claims that Hernández is a Tren de Aragua member.

“Andry fled persecution in Venezuela and came to the U.S. to seek protection. He has no criminal history. He is not a member of the Tren de Aragua gang. Yet because of his crown tattoos, we believe at this moment that he sits in a torture prison, a gulag, in El Salvador,” said Toczylowski. “I say we believe because we have not had any proof of life for him since the day he was put on a U.S. government-funded plane and forcibly disappeared to El Salvador.”

“Andry is not alone,” she added.

Takano noted the federal government sent his parents, grandparents, and other Japanese Americans to internment camps during World War II under the Alien Enemies Act. The gay California Democrat also described Hernández as “a political prisoner, denied basic rights under a law that should have stayed in the past.”

“He is not a case number,” said Takano. “He is a person.”

Hernández had been pursuing his asylum case while at the Otay Mesa Detention Center in San Diego.

A hearing had been scheduled to take place on May 30, but an immigration judge the day before dismissed his case. Immigrant Defenders Law Center has said it will appeal the decision to the Board of Immigration Appeals, which the Justice Department oversees.

“We will not stop fighting for Andry, and I know neither will you,” said Toczylowski.

Friday’s rally took place hours after Attorney General Pam Bondi said Kilmar Abrego Garcia, a Maryland man who the Trump-Vance administration wrongfully deported to El Salvador, had returned to the U.S. Abrego will face federal human trafficking charges in Tennessee.

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A husband’s story: Michael Carroll reflects on life with Edmund White

Iconic author died this week; ‘no sunnier human in the world’

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Michael Carroll spoke to the Blade after the death his husband Edmund White this week. (Photo by Michael Carroll)

Unlike most gay men of my generation, I’ve only been to Fire Island twice. Even so, the memory of my first visit has never left me. The scenery was lovely, and the boys were sublime — but what stood out wasn’t the beach or the parties. It was a quiet afternoon spent sipping gin and tonics in a mid-century modern cottage tucked away from the sand and sun.

Despite Fire Island’s reputation for hedonism, our meeting was more accident than escapade. Michael Carroll — a Facebook friend I’d chatted with but never met — mentioned that he and his husband, Ed, would be there that weekend, too. We agreed to meet for a drink. On a whim, I checked his profile and froze. Ed was author Edmund White.

I packed a signed copy of Carroll’s “Little Reef” and a dog-eared hardback of “A Boy’s Own Story,” its spine nearly broken from rereads. I was excited to meet both men and talk about writing, even briefly.

Yesterday, I woke to the news that Ed had passed away. Ironically, my first thought was of Michael.

This week, tributes to Edmund White are everywhere — rightly celebrating his towering legacy as a novelist, essayist, and cultural icon. I’ve read all of his books, and I could never do justice to the scope of a career that defined and chronicled queer life for more than half a century. I’ll leave that to better-prepared journalists.

But in those many memorials, I’ve noticed something missing. When Michael Carroll is mentioned, it’s usually just a passing reference: “White’s partner of thirty years, twenty-five years his junior.” And yet, in the brief time I spent with this couple on Fire Island, it was clear to me that Michael was more than a footnote — he was Ed’s anchor, editor, companion, and champion. He was the one who knew his husband best.

They met in 1995 after Michael wrote Ed a fan letter to tell him he was coming to Paris. “He’d lost the great love of his life a year before,” Michael told me. “In one way, I filled a space. Understand, I worshiped this man and still do.”

When I asked whether there was a version of Ed only he knew, Michael answered without hesitation: “No sunnier human in the world, obvious to us and to people who’ve only just or never met him. No dark side. Psychology had helped erase that, I think, or buffed it smooth.”

Despite the age difference and divergent career arcs, their relationship was intellectually and emotionally symbiotic. “He made me want to be elegant and brainy; I didn’t quite reach that, so it led me to a slightly pastel minimalism,” Michael said. “He made me question my received ideas. He set me free to have sex with whoever I wanted. He vouchsafed my moods when they didn’t wobble off axis. Ultimately, I encouraged him to write more minimalistically, keep up the emotional complexity, and sleep with anyone he wanted to — partly because I wanted to do that too.”

Fully open, it was a committed relationship that defied conventional categories. Ed once described it as “probably like an 18th-century marriage in France.” Michael elaborated: “It means marriage with strong emotion — or at least a tolerance for one another — but no sex; sex with others. I think.”

That freedom, though, was always anchored in deep devotion and care — and a mutual understanding that went far beyond art, philosophy, or sex. “He believed in freedom and desire,” Michael said, “and the two’s relationship.”

When I asked what all the essays and articles hadn’t yet captured, Michael paused. “Maybe that his writing was tightly knotted, but that his true personality was vulnerable, and that he had the defense mechanisms of cheer and optimism to conceal that vulnerability. But it was in his eyes.”

The moment that captured who Ed was to him came at the end. “When he was dying, his second-to-last sentence (garbled then repeated) was, ‘Don’t forget to pay Merci,’ the cleaning lady coming the next day. We had had a rough day, and I was popping off like a coach or dad about getting angry at his weakness and pushing through it. He took it almost like a pack mule.” 

Edmund White’s work shaped generations — it gave us language for desire, shame, wit, and liberation. But what lingers just as powerfully is the extraordinary life Ed lived with a man who saw him not only as a literary giant but as a real person: sunny, complex, vulnerable, generous.

In the end, Ed’s final words to his husband weren’t about his books or his legacy. They were about care, decency, and love. “You’re good,” he told Michael—a benediction, a farewell, maybe even a thank-you.

And now, as the world celebrates the prolific writer and cultural icon Edmund White, it feels just as important to remember the man and the person who knew him best. Not just the story but the characters who stayed to see it through to the end.

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