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HISTORIC: Supreme Court hears oral arguments on Prop 8

Standing issues make up considerable portion of questioning at court hearing

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Supreme Court, gay news, Washington Blade
Supreme Court, gay marriage, marriage equality, Proposition 8, gay news, Washington Blade

The U.S. Supreme Court heard oral arguments on California’s Prop 8 on Tuesday. (Washington Blade photo by Michael Key)

The atmosphere at the U.S. Supreme Court was tense on Tuesday as justices hammered attorneys with tough questions on the constitutionality of California’s Proposition 8 — with a particular emphasis on inquiries about standing.

Within moments of the opening of the oral arguments in the Prop 8 case, known as Hollingsworth v. Perry, justices interrupted both Charles Cooper, who is arguing in favor of Prop 8, and Ted Olson, who is arguing against it on behalf of two plaintiff gay couples, with questions about standing.

CHECK OUT THE AUDIO OF THE ORAL ARGUMENTS HERE!

Anti-gay groups, such as ProtectMarriage.com, are defending Prop 8 in court because California officials — Gov. Jerry Brown and Attorney General Kamala Harris — have elected not to do so. Whether these groups have standing to defend the law is a question posed by the court.

Associate Justice Sonia Sotomayor, who was appointed by President Obama, was among those asking questions about standing, saying it’s “counterintuitive” for a state to grant standing to proponents of a ballot initiative because their views are in support of the measure.

Cooper said the California Supreme Court in 2011 ruled that proponents of a ballot initiative like Prop 8 bear a responsibility to defend the measure in court should state officials decline to do so. Otherwise, public officials could effectively veto a measure by declining to defend it.

But Olson, a former U.S. solicitor general under President George W. Bush, disputed the notion that anti-gay groups have standing in the Prop 8 case because they are not elected officials.

“Because you’re not an officer of the State of California, you don’t have a fiduciary duty to the State of California, you’re not bound by the ethical standards of an officer of the State of California to represent the State of California, you could have conflicts of interest,” Olson said. “And as I said, you could be incurring enormous legal fees on behalf of the state when the state hasn’t decided to go that route.”

The issue of standing is seen as crucial because if the court determines that anti-gay groups don’t have standing to defend Prop 8, the ruling of U.S. District Judge Vaughn Walker would remain in place and marriage rights for same-sex couples would likely be restored in California.

Associate Justice Samuel Alito expressed skepticism during the oral arguments that proponents of Prop 8 lack standing to defend their ballot measure, indicating someone should be able to defend the statute if public officials decline to do so.

“In a state that has initiative, the whole process would be defeated if the only people who could defend the statute are the elected public officials,” Alito said. “The whole point … of the initiative process was to allow the people to circumvent public officials about whom they were suspicious.”

Justices known for being conservative hinted at the way they may rule in the case. Alito, appointed by former President George W. Bush, cautioned against a ruling in favor of same-sex marriage, which he said is “newer than cell phones and the Internet.”

“There isn’t a lot of data about its effect,” Alito said. “It may turn out to be a good thing. It may turn out not to be a good thing.”

Associate Justice Antonin Scalia said the legalization of same-sex marriage would necessitate the legalization of gay adoption, and sociologists have “considerable disagreements” on whether that causes harm to a child.

“I don’t think we know the answer to that question,” Scalia said.

It’s unclear what disagreements Scalia was referencing. Just last week, the American Academy of Pediatrics endorsed same-sex marriage, saying it helps children. Following Scalia’s remarks, Associate Justice Ruth Bader Ginsburg reminded Scalia that adoption isn’t at issue because California has legalized adoption rights for gay couples.

Associate Justice Anthony Kennedy, an appointee of former President Reagan who’s considered a swing vote, acknowledged that sociological information on the issue is new, but said children who are currently living with same-sex partners are suffering “legal injury” as a result of Prop 8.

“There is an immediate legal injury or legal — what could be a legal injury, and that’s the voice of these children,” Kennedy said. “There are some 40,000 children in California … that live with same-sex parents, and they want their parents to have full recognition and full status.”

Chief Justice John Roberts, another Bush appointee, made comments in an exchange with Olson suggesting he doesn’t believe gay couples have a right to marry. Many had hoped Roberts would vote to overturn Prop 8 because he sided with more liberal justices in the court decision upholding the health care reform law.

“I’m not sure that it’s right to view this as excluding a particular group,” Roberts said. “When the institution of marriage developed historically, people didn’t get around and say let’s have this institution, but let’s keep out homosexuals. The institution developed to serve purposes that, by their nature, didn’t include homosexual couples.”

When Olson pointed out that gay couples had the right to marry before Prop 8 was passed, Roberts responded by saying that it was only 140 days after the California Supreme Court ruled in favor of same-sex marriage.

Roberts then asked Olson whether it’s more reasonable to view the situation as the state court making a change to an institution that’s “been around since time immemorial.”

“The California Supreme Court, like this Supreme Court, decides what the law is,” Olson replied. “The California Supreme Court decided that the Equal Protection and Due Process Clauses of that California Constitution did not permit excluding gays and lesbians from the right to get married.”

The courtroom was crowded with observers who were both for and against Prop 8. Among those in attendance was California Lt. Gov. Gavin Newsom, who gained notoriety in 2004 when as San Francisco mayor he distributed marriage licenses to gay couples before the state court ordered him to stop.

U.S. Solicitor General Donald Verrilli argued against Prop 8 on behalf of the Obama administration, saying Prop 8 should be struck down because gay people have “suffered a history of discrimination” and the law should be subject to heightened scrutiny.

Verrilli said the Obama administration is “not taking a position” on whether same-sex marriage should be legalized throughout the country as a result of the ruling — but said the door could be open to such a ruling in future cases. Instead, Verrilli advocated the idea of a “nine-state solution.” Under that approach, states that offer domestic partnerships or civil unions, but not same-sex marriage, would have to allow gay couples to enter into the union of marriage.

The solicitor general said California’s own domestic partnership law providing gay couples legal benefits but not the distinction of marriage “undercuts” any rationale for withholding the label of marriage for gay couples.

But the idea of a nine-state solution seemed distasteful to justices. Associate Justice Stephen Breyer, an appointee of former President Bill Clinton, noted that states that provide absolutely no legal recognition to gay couples provide more harm to gay couples than the states that offer domestic partnerships.

Verrili also maintained the Obama administration isn’t taking a position on whether proponents of Prop 8 have standing to defend the law, but said the notion they lack Article III standing in court is the stronger argument.

Both the attorneys for and against Prop 8 also made their cases on the constitutionality of the measure that were along the lines of the briefs they previously submitted to the court.

Cooper maintained California voters in 2008 were essentially hitting a “pause button” by approving Prop 8 and were awaiting further information of the impact on other parts of the country where same-sex marriage is legal.

“That would hardly be irrational for that voter to say, I believe that this experiment, which is now only four years old, even in Massachusetts, the oldest state that is conducting it, to say, I think it better for California to hit the pause button and await additional information from the jurisdictions where this experiment is still maturing,” Cooper said.

Olson, on the other hand, argued Prop 8 was unconstitutional because the measure walls off from a certain group of people the right to marry.

“It’s an individual right that this court again and again and again has said: the right to get married, the right to have the relationship of marriage a personal right,” Olson said. “It’s a part of the right of privacy, association, liberty and the pursuit of happiness.”

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National

Supreme Court deals blow to trans student privacy protections

Under this ruling, parents are entitled to be informed about their children’s gender identity at school, regardless of state protections for student privacy.

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Transgender rights activists protest outside the Supreme Court in early 2026. (Washington Blade Photo by Michael Key)

The Supreme Court on Monday blocked a California policy that allowed teachers to withhold information about a student’s gender identity from their parents.

The policy had permitted California students to explore their gender identity at school without that information automatically being disclosed to their parents. Now, educators in the state will be required to inform parents about developments related to a student’s gender identity, depending on how the case proceeds in lower courts.

The case involves two sets of parents — identified in court filings as John and Jane Poe and John and Jane Doe — both of which say their daughters began identifying as boys at school without their knowledge, citing religious objections to gender transitioning.

The Poes say they only learned about their daughter’s gender dysphoria after she attempted suicide in eighth grade and was hospitalized. After treatment for the attempt and after being returned to school the following year, teachers continued using a male name and pronouns despite the parents’ objections, citing California law. The Poes have since placed their daughter in therapy and psychiatric care.

Similarly, the Does say their daughter has intermittently identified as a boy since fifth grade, but while their daughter was in seventh grade, they confronted school administrators over concerns that staff were using a male name and pronouns without informing them. The principal told them state law barred disclosure without the child’s consent.

Both sets of parents filed lawsuits in the U.S. District Court for the Southern District of California challenging the state policy that protects students’ gender identity and limits when schools can disclose that information to parents.

The justices voted along ideological lines, with the court’s six conservative members in the majority and the three liberal justices dissenting.

“We conclude that the parents who seek religious exemptions are likely to succeed on the merits of their Free Exercise Clause claim,” the court said in an unsigned order. “The parents who assert a free exercise claim have sincere religious beliefs about sex and gender, and they feel a religious obligation to raise their children in accordance with those beliefs. California’s policies violate those beliefs.”

In dissent, the three liberal justices argued that the case is still working its way through the lower courts and that there was no need for the high court to intervene at this stage. Justice Elena Kagan wrote, “If nothing else, this Court owes it to a sovereign State to avoid throwing over its policies in a slapdash way, if the Court can provide normal procedures. And throwing over a State’s policy is what the Court does today.”

Conservative Justices Samuel Alito and Clarence Thomas indicated they would have gone further and granted broader relief to the parents and teachers challenging the policy.

The emergency appeal from a group of teachers and parents in California followed a decision from the United States Court of Appeals for the Ninth Circuit that allowed the state’s policy to remain in effect. The appeals court had paused an order from U.S. District Judge Roger Benitez — who was nominated by George W. Bush — that sided with the parents and teachers and put the policy on hold.

The legal challenge was backed by the Thomas More Society, which relied heavily on a decision last year in which the court’s conservative majority sided with a group of religious parents seeking to opt their elementary school children out of engaging with LGBTQ-themed books in the classroom.

California Attorney General Rob Bonta expressed disappointment with the ruling. “We remain committed to ensuring a safe, welcoming school environment for all students while respecting the crucial role parents play in students’ lives,” his office said in a statement.

The decision comes as the Trump administration has taken a hardline approach to transgender rights. During his State of the Union address last week, President Donald Trump referenced Sage Blair, who previously identified as transgender and later detransitioned, describing Blair’s experience transitioning in a public school. According to the president, school employees supported Blair’s chosen gender identity and did not initially inform Blair’s parents.

President Donald Trump acknowledges Sage Blair, pictured second from left, during his speech at the State of the Union on Feb. 24. (Washington Blade photo by Michael Key)

Last year, the court upheld Tennessee’s ban on gender-affirming medical care for transgender minors and has allowed enforcement of a policy barring transgender people from serving in the military to continue during Trump’s second term.

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Comings & Goings

Gil Pontes III named to Financial Advisory Board in Wilton Manors

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Gil Pontes III

The Comings & Goings column is about sharing the professional successes of our community. We want to recognize those landing new jobs, new clients for their business, joining boards of organizations and other achievements. Please share your successes with us at [email protected]

Congratulations to Gil Pontes III on his recent appointment to the Financial Advisory Board for the City of Wilton Manors, Fla. Upon being appointed he said, “I’m honored to join the Financial Advisory Board for the City of Wilton Manors at such an important moment for our community. In my role as Executive Director of the NextGen Chamber of Commerce, I spend much of my time focused on economic growth, fiscal sustainability, and the long-term competitiveness of emerging business leaders. I look forward to bringing that perspective to Wilton Manors — helping ensure responsible stewardship of public resources while supporting a vibrant, inclusive local economy.”

Pontes is a nonprofit executive with years of development, operations, budget, management, and strategic planning experience in 501(c)(3), 501(c)(4), and political organizations. Pontes is currently executive director of NextGen, Chamber of Commerce. NextGen Chamber’s mission is to “empower emerging business leaders by generating insights, encouraging engagement, and nurturing leadership development to shape the future economy.” Prior to that he served as managing director of The Nora Project, and director of development also at The Nora Project. He has held a number of other positions including Major Gifts Officer, Thundermist Health Center, and has worked in both real estate and banking including as Business Solutions Adviser, Ironwood Financial. For three years he was a Selectman, Town of Berkley, Mass. In that role, he managed HR and general governance for town government. There were 200+ staff and 6,500 constituents. He balanced a $20,000,000 budget annually, established an Economic Development Committee, and hired the first town administrator.

Pontes earned his bachelor’s degree in political science from the University of Massachusetts, Dartmouth.

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ACLU sues Kansas over law invalidating trans residents’ IDs

A new Kansas bill requires transgender residents to have their driver’s licenses reflect their sex assigned at birth, invalidating current licenses.

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Kenda Kirby, transgender, Supreme Court, gay news, Washington Blade
A transgender flag flies in front of the Supreme Court. (Washington Blade file photo by Michael Key)

Transgender people across Kansas received letters in the mail on Wednesday demanding the immediate surrender of their driver’s licenses following passage of one of the harshest transgender bathroom bans in the nation. Now the American Civil Liberties Union is filing a lawsuit to block the ban and protect transgender residents from what advocates describe as “sweeping” and “punitive” consequences.

Independent journalist Erin Reed broke the story Wednesday after lawmakers approved House Substitute for Senate Bill 244. In her reporting, Reed included a photo of the letter sent to transgender Kansans, requiring them to obtain a driver’s license that reflects their sex assigned at birth rather than the gender with which they identify.

According to the reporting, transgender Kansans must surrender their driver’s licenses and that their current credentials — regardless of expiration date — will be considered invalid upon the law’s publication. The move effectively nullifies previously issued identification documents, creating immediate uncertainty for those impacted.

House Substitute for Senate Bill 244 also stipulates that any transgender person caught driving without a valid license could face a class B misdemeanor, punishable by up to six months in jail and a $1,000 fine. That potential penalty adds a criminal dimension to what began as an administrative action. It also compounds the legal risks for transgender Kansans, as the state already requires county jails to house inmates according to sex assigned at birth — a policy that advocates say can place transgender detainees at heightened risk.

Beyond identification issues, SB 244 not only bans transgender people from using restrooms that match their gender identity in government buildings — including libraries, courthouses, state parks, hospitals, and interstate rest stops — with the possibility for criminal penalties, but also allows for what critics have described as a “bathroom bounty hunter” provision. The measure permits anyone who encounters a transgender person in a restroom — including potentially in private businesses — to sue them for large sums of money, dramatically expanding the scope of enforcement beyond government authorities.

The lawsuit challenging SB 244 was filed today in the District Court of Douglas County on behalf of anonymous plaintiffs Daniel Doe and Matthew Moe by the American Civil Liberties Union, the ACLU of Kansas, and Ballard Spahr LLP. The complaint argues that SB 244 violates the Kansas Constitution’s protections for personal autonomy, privacy, equality under the law, due process, and freedom of speech.

Additionally, the American Civil Liberties Union filed a temporary restraining order on behalf of the anonymous plaintiffs, arguing that the order — followed by a temporary injunction — is necessary to prevent the “irreparable harm” that would result from SB 244.

State Rep. Abi Boatman, a Wichita Democrat and the only transgender member of the Kansas Legislature, told the Kansas City Star on Wednesday that “persecution is the point.”

“This legislation is a direct attack on the dignity and humanity of transgender Kansans,” said Monica Bennett, legal director of the ACLU of Kansas. “It undermines our state’s strong constitutional protections against government overreach and persecution.”

“SB 244 is a cruel and craven threat to public safety all in the name of fostering fear, division, and paranoia,” said Harper Seldin, senior staff attorney for the ACLU’s LGBTQ & HIV Rights Project. “The invalidation of state-issued IDs threatens to out transgender people against their will every time they apply for a job, rent an apartment, or interact with police. Taken as a whole, SB 244 is a transparent attempt to deny transgender people autonomy over their own identities and push them out of public life altogether.”

“SB 244 presents a state-sanctioned attack on transgender people aimed at silencing, dehumanizing, and alienating Kansans whose gender identity does not conform to the state legislature’s preferences,” said Heather St. Clair, a Ballard Spahr litigator working on the case. “Ballard Spahr is committed to standing with the ACLU and the plaintiffs in fighting on behalf of transgender Kansans for a remedy against the injustices presented by SB 244, and is dedicated to protecting the constitutional rights jeopardized by this new law.”

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