National

Mixed reaction over Verrilli’s Prop 8 arguments

U.S. gov’t attorney doesn’t call for nationwide ruling in favor of marriage

Published

12 years ago

March 29, 2013

Solicitor General Donald Verrilli’s arguments before the court on marriage are receiving mixed reviews. (Photo public domain)

The U.S. solicitor general’s performance before the Supreme Court on marriage is receiving mixed reviews amid disappointment that he didn’t overtly say same-sex marriage should be institutionalized nationwide as a result of the cases.

U.S. Solicitor General Donald Verrilli was the sole attorney who argued in both cases before the court — one on California’s Proposition 8, the other on the Defense of Marriage Act. The message was the same for both measures: Laws related to sexual orientation should be subject to heightened scrutiny, or a greater assumption they’re unconstitutional.

But the nuance in what Verrilli said should be the outcome of the Prop 8 case is noteworthy. Asked by Chief Justice John Roberts whether the administration wants a ruling that would strike down marriage bans across the country, Verrilli declined to give an affirmative answer.

“We are not taking the position that it is required throughout the country,” Verrilli said. “We think that that ought to be left open for a future adjudication in other states that don’t have the situation California has.”

Under later questioning, Verrilli said a state would have to reach a “very heavy burden” to justify a measure similar to Prop 8, but at the same time said a “caution rationale” — presumably a wait-and-see approach to same-sex marriage — would be “one place where we might leave it open.”

Suzanne Goldberg, a lesbian and co-director of Columbia University’s Center for Gender and Sexuality Law, said she was “uncomfortable” with Verrilli’s assertion that states may have justification to ban couples from marrying.

“He seemed to suggest that they might actually have a legitimate reason for maintaining the exclusion, and that did not seem necessary to me, given the arguments that he was making,” Goldberg said. “It did not feel right for the government’s attorney to suggest that their might actually be a plausible reason for a state to exclude same-sex couples from marriage.”

Goldberg drew a distinction between the arguments presented by the Justice Department in the Prop 8 and DOMA cases. For DOMA, Goldberg noted the administration hasn’t identified any instance in which the federal anti-gay law would be constitutional.

“That wasn’t the government’s position in the DOMA case even though the government said under the weakest standard of review, DOMA might be upheld,” Goldberg said. “But it did not suggest any of the rationales would be sufficient.”

It should be noted that Verrilli’s arguments in the Prop 8 case are consistent with the friend-of-the-court brief filed by the Justice Department against the California measure. The brief never explicitly says all bans on same-sex marriage are unconstitutional and instead focuses on Prop 8, which is the question before the court.

Richard Socarides, a gay New York-based advocate, said the presentation of that limited argument on marriage equality is not the fault of Verrilli — whom he said “did a good job” — but is the result of the White House making a political calculation on the Prop 8 case.

“I think that they made some political choices that were not the ones exactly I would have made,” Socarides said. “And I think that some of those came back to haunt them.”

Verrilli noted that California offers gay couples domestic partnerships, suggesting the court should rule that states offering some benefits to gay couples, but not marriage, should instead offer them marriage rights. Legal experts have coined this potential decision as the “nine-state solution.”

But Socarides questioned the wisdom of embracing that position, noting justices seemed disinclined to adopt a ruling saying states that offer some benefits to gay couples aren’t doing enough while leaving other jurisdictions unaffected.

“I think that argument is too clever by half,” Socarides said. “I appreciate the fact that I think the White House was trying to thread the needle there a little bit. It may have served its purpose, but I think in retrospect not the best decision.”

David Gans, civil rights director for the progressive Constitutional Accountability Center, found a positive in the limited argument presented by Verrilli: it provides another option to justices unswayed by American Foundation for Equal Rights attorney Ted Olson’s argument in favor of a fundamental right to same-sex marriage.

“In some ways, it was a very useful complement to the argument that Ted Olson made,” Gans said. “What Verrilli offered was sort of an alternative. Olson and Verrilli gave them a broader option as well as a narrow one that would decide this case, but not other cases. In light of some of the concern expressed by justices, in the end, it may prove valuable.”

Several legal experts and LGBT advocacy groups, including the Human Rights Campaign, declined to comment for this article.

Socarides emphasized the Justice Department has already stepped up to the plate in helping same-sex couples win their rights at the Supreme Court by dropping defense of DOMA and participating in the Prop 8 case.

“I would also emphasize that, I think at this point, we’re really quibbling around the edges and that we want to be very grateful for the work that the Justice Department did and for the president’s support,” Socarides said.

That was a sentiment shared by Evan Wolfson, president of Freedom to Marry, who commended the Justice Department for its work before the bench and in the briefs that were filed.

“Briefs speak louder than arguments, and the Solicitor General effectively dismantled every argument made in defense of excluding gay couples from marriage and inflicting unequal treatment on married gay couples under so-called DOMA,” Wolfson said. “He repeatedly urged the justices to focus on what is really going on: discrimination against gay people and indefensible denial of the freedom to marry, and when they go back and read his briefs in both cases, the justices will see a strong, clear path forward toward the freedom to marry and repudiation of the impermissible discrimination we have endured for too long.”

Up Next

Ben Carson’s same-sex marriage comments spark outrage

Don't Miss

Prominent N.Y. same-sex marriage opponent’s son backs issue

FUND LGBTQ JOURNALISM

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

Published

2 days ago

July 3, 2025

Christopher Kane

U.S. Supreme Court (Washington Blade photo by Michael Key)

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

Published

4 days ago

July 1, 2025

Christopher Kane

U.S. Education Secretary Linda McMahon (Screen capture: C-SPAN)

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

Published

5 days ago

June 30, 2025

Joe Reberkenny

The Stonewall National Memorial in New York on June 19, 2024. (Washington Blade photo by Michael K. Lavers)

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.”