National
Cato legal analyst: DOMA is dead
Former GOP head, same-sex marriage advocate assess high court arguments in ‘Windsor’ case
The Cato Institute (Photo by Matt Bisanz via Wikimedia)
A senior fellow with the Cato Institute, a libertarian think tank that supports LGBT equality, said comments by U.S. Supreme Court justices on Wednesday lead him to believe the high court will strike down the anti-gay Defense of Marriage Act known as DOMA.
Cato Institute senior fellow Ilya Shapiro, who attended Wednesday’s oral arguments at the high court, said the court’s four liberal justices would likely invoke the Constitution’s “equal protection” clause as grounds for overturning DOMA’s Section 3, which prohibits the federal government from recognizing same-sex marriages.
Shapiro said comments made by Justice Anthony Kennedy, who is considered the court’s swing vote on DOMA, indicate Kennedy would vote to strike down DOMA based on grounds that it violates “federalism” or states’ rights protections under the constitution.
Assuming Kennedy joins liberal leaning Justices Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan in voting to declare Section 3 of DOMA as unconstitutional, the five would become a majority on the nine-member court needed to strike down that provision of DOMA, according to Shapiro.
“Assuming they get past the jurisdictional arguments it seems like DOMA Section 3 is not long for this world,” he said.
Shapiro gave his assessment on the justices’ views on DOMA at a Cato Institute forum Wednesday afternoon called Law, Politics, and Same-Sex Marriage.
Others panelists speaking at the forum included Walter Olson, a Cato Institute fellow, who served as moderator; Evan Wolfson, executive director of the same-sex marriage advocacy group Freedom to Marry; and Ken Mehlman, a York City businessman and former chair of the Republican National Committee.
Wolfson attended Wednesday’s Supreme Court oral arguments on DOMA as well as the arguments before the court one day earlier on California’s Proposition 8 case, which legal experts say could potentially lead to the legalization of same-sex marriage in all fifty states.
He told the forum that making predictions about how the court will rule on a case based on the justices’ statements and questions during oral arguments is highly speculative.
“I think you really need to take every prediction you hear and read and see tweeted and re-tweeted very, very skeptically,” Wolfson said. “The justices are going to go back and delve through a mountain of briefs in both cases, a huge amount of evidence and argument.”
While the outcome of both the Prop 8 and DOMA cases is uncertain, there are things marriage equality advocates know “very, very clearly,” Wolfson said.
“One thing we know is that while the justices are doing their homework in going through the process, the best single way we can maximize winning the freedom to marry and even getting the justices encouraged to do the right thing as they deliberate now in the court is to do what we’ve been doing, which is to continue winning in more states and to continue winning over more hearts and minds,” he said.
“There are as many as four states that are going to be considering or have begun considering freedom to marry legislation and could pass those bills into law before the court hands down its decision likely at the end of June,” Wolfson said. “So the single biggest thing we can do to maximize the chances of winning are to pass those marriage bills and to continue growing the extraordinary ‘who’s who’ of Americans that have stepped up the last many weeks and months in supporting the freedom to marry.”
Ken Mehlman (Washington Blade photo by Michael Key)
Mehlman, who’s gay and who has emerged as an outspoken same-sex marriage advocate in recent years, said that aside from using sound legal arguments, marriage equality advocates have made important advances by putting a human face on the same-sex couples who want the right to marry.
“In my judgment, what has so galvanized the public is our stories,” he said. “These are real stories about real people and they make a gigantic difference.”
He said the numerous “friend-of-the-court” or amicus briefs filed in support of the marriage equality side by a wide range of organizations also shows how the breadth of support for same-sex marriage has greatly expanded.
The Cato Institute is among the groups that have filed an amicus brief in support of striking down DOMA.
“It’s not just that it is a large number,” he said of the groups and individuals filing amicus briefs. “It’s the cross section of society. It’s military leaders. It’s religious leaders. It’s business leaders. It’s Republicans and conservatives. It’s leaders of excellent think tanks — all making the case from their perspective and why it makes sense,” Mehlman said.
U.S. Supreme Court
Supreme Court to consider bans on trans athletes in school sports
27 states have passed laws limiting participation in athletics programs
The U.S. Supreme Court on Thursday agreed to hear two cases involving transgender youth challenging bans prohibiting them from participating in school sports.
In Little v. Hecox, plaintiffs represented by the ACLU, Legal Voice, and the law firm Cooley are challenging Idaho’s 2020 ban, which requires sex testing to adjudicate questions of an athlete’s eligibility.
The 9th U.S. Circuit Court of Appeals described the process in a 2023 decision halting the policy’s enforcement pending an outcome in the litigation. The “sex dispute verification process, whereby any individual can ‘dispute’ the sex of any female student athlete in the state of Idaho,” the court wrote, would “require her to undergo intrusive medical procedures to verify her sex, including gynecological exams.”
In West Virginia v. B.P.J., Lambda Legal, the ACLU, the ACLU of West Virginia, and Cooley are representing a trans middle school student challenging the Mountain State’s 2021 ban on trans athletes.
The plaintiff was participating in cross country when the law was passed, taking puberty blockers that would have significantly reduced the chances that she could have a physiological advantage over cisgender peers.
“Like any other educational program, school athletic programs should be accessible for everyone regardless of their sex or transgender status,” said Joshua Block, senior counsel for the ACLU’s LGBTQ and HIV Project. “Trans kids play sports for the same reasons their peers do — to learn perseverance, dedication, teamwork, and to simply have fun with their friends,” Block said.
He added, “Categorically excluding kids from school sports just because they are transgender will only make our schools less safe and more hurtful places for all youth. We believe the lower courts were right to block these discriminatory laws, and we will continue to defend the freedom of all kids to play.”
“Our client just wants to play sports with her friends and peers,” said Lambda Legal Senior Counsel Tara Borelli. “Everyone understands the value of participating in team athletics, for fitness, leadership, socialization, and myriad other benefits.”
Borelli continued, “The U.S. Court of Appeals for the Fourth Circuit last April issued a thoughtful and thorough ruling allowing B.P.J. to continue participating in track events. That well-reasoned decision should stand the test of time, and we stand ready to defend it.”
Shortly after taking control of both legislative chambers, Republican members of Congress tried — unsuccessfully — to pass a national ban like those now enforced in 27 states since 2020.
Federal Government
UPenn erases Lia Thomas’s records as part of settlement with White House
University agreed to ban trans women from women’s sports teams
In a settlement with the Trump-Vance administration announced on Tuesday, the University of Pennsylvania will ban transgender athletes from competing and erase swimming records set by transgender former student Lia Thomas.
The U.S. Department of Education’s Office for Civil Rights found the university in violation of Title IX, the federal rights law barring sex based discrimination in educational institutions, by “permitting males to compete in women’s intercollegiate athletics and to occupy women-only intimate facilities.”
The statement issued by University of Pennsylvania President J. Larry Jameson highlighted how the law’s interpretation was changed substantially under President Donald Trump’s second term.
“The Department of Education OCR investigated the participation of one transgender athlete on the women’s swimming team three years ago, during the 2021-2022 swim season,” he wrote. “At that time, Penn was in compliance with NCAA eligibility rules and Title IX as then interpreted.”
Jameson continued, “Penn has always followed — and continues to follow — Title IX and the applicable policy of the NCAA regarding transgender athletes. NCAA eligibility rules changed in February 2025 with Executive Orders 14168 and 14201 and Penn will continue to adhere to these new rules.”
Writing that “we acknowledge that some student-athletes were disadvantaged by these rules” in place while Thomas was allowed to compete, the university president added, “We recognize this and will apologize to those who experienced a competitive disadvantage or experienced anxiety because of the policies in effect at the time.”
“Today’s resolution agreement with UPenn is yet another example of the Trump effect in action,” Education Secretary Linda McMahon said in a statement. “Thanks to the leadership of President Trump, UPenn has agreed both to apologize for its past Title IX violations and to ensure that women’s sports are protected at the university for future generations of female athletes.”
Under former President Joe Biden, the department’s Office of Civil Rights sought to protect against anti-LGBTQ discrimination in education, bringing investigations and enforcement actions in cases where school officials might, for example, require trans students to use restrooms and facilities consistent with their birth sex or fail to respond to peer harassment over their gender identity.
Much of the legal reasoning behind the Biden-Harris administration’s positions extended from the 2020 U.S. Supreme Court case Bostock v. Clayton County, which found that sex-based discrimination includes that which is based on sexual orientation or gender identity under Title VII rules covering employment practices.
The Trump-Vance administration last week put the state of California on notice that its trans athlete policies were, or once were, in violation of Title IX, which comes amid the ongoing battle with Maine over the same issue.
New York
Two teens shot steps from Stonewall Inn after NYC Pride parade
One of the victims remains in critical condition
On Sunday night, following the annual NYC Pride March, two girls were shot in Sheridan Square, feet away from the historic Stonewall Inn.
According to an NYPD report, the two girls, aged 16 and 17, were shot around 10:15 p.m. as Pride festivities began to wind down. The 16-year-old was struck in the head and, according to police sources, is said to be in critical condition, while the 17-year-old was said to be in stable condition.
The Washington Blade confirmed with the NYPD the details from the police reports and learned no arrests had been made as of noon Monday.
The shooting took place in the Greenwich Village neighborhood of Manhattan, mere feet away from the most famous gay bar in the city — if not the world — the Stonewall Inn. Earlier that day, hundreds of thousands of people marched down Christopher Street to celebrate 55 years of LGBTQ people standing up for their rights.
In June 1969, after police raided the Stonewall Inn, members of the LGBTQ community pushed back, sparking what became known as the Stonewall riots. Over the course of two days, LGBTQ New Yorkers protested the discriminatory policing of queer spaces across the city and mobilized to speak out — and throw bottles if need be — at officers attempting to suppress their existence.
The following year, LGBTQ people returned to the Stonewall Inn and marched through the same streets where queer New Yorkers had been arrested, marking the first “Gay Pride March” in history and declaring that LGBTQ people were not going anywhere.
New York State Assemblywoman Deborah Glick, whose district includes Greenwich Village, took to social media to comment on the shooting.
“After decades of peaceful Pride celebrations — this year gun fire and two people shot near the Stonewall Inn is a reminder that gun violence is everywhere,” the lesbian lawmaker said on X. “Guns are a problem despite the NRA BS.”
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