National
End of DOMA raises concerns about lingering inequities
Social Security, military benefits could remain problematic after court decision


Issues for married same-sex couples may remain even if the Supreme Court strikes down DOMA. (Washington Blade photo by Michael Key)
While many same-sex couples throughout the country have high hopes that a U.S. Supreme Court ruling striking down the Defense of Marriage Act would mean their marriages would finally have legal status in the eyes of the federal government, certain problems may persist even if the court kills the law.
Depending on the scope of a Supreme Court ruling against Section 3 of DOMA, areas of the law in which couples may continue to face challenges include Social Security benefits ā especially if a couple moves to a state that doesn’t recognize their marriages ā as well as spousal benefits when one party of the couple is a member of the military, although the immigration issue preventing bi-national couples from staying together in the United States is expected to cease immediately.
Mary Bonauto, civil rights director for Gay & Lesbian Advocates & Defenders, said prior to oral arguments one issue in a post-DOMA world is Social Security benefits if a same-sex couple marries in one state and moves to another where their union isn’t recognized. The survivor benefits given to spouses upon the death of their loved ones is among the more than 1,000 federal benefits withheld from married gay couples under DOMA.
“Say you are married in Massachusetts … and you apply for Social Security in Massachusetts, there would be no doubt with DOMA gone, that your spouse is a spouse for Social Security purposes,” Bonauto said. “However, should you relocate to Florida and apply for Social Security benefits there, it’s more of a problem because Social Security law is going to look at the validity of the marriage at the time you apply for benefits, so your state of residence at the time you apply really matters.”
Bonauto added the aftermath of a ruling striking down DOMA may create “a patchwork” that in some situations would make same-sex marriage dependent on their state validity. Ironing out this patchwork, she said, would take either more litigation, legislation or advocacy within the administration to make changes.
“The overwhelming majority of federal programs don’t specify what state law applies, so it may just be for some situations, a matter of some guidance coming for the agencies that say whether you’re married for a particular benefit,” Bonauto added. “That’s a very practical nuts-and-bolts thing that, you know, we don’t have the luxury of worrying about right now because DOMA is still on the books.”
Susan Silber, a lesbian Takoma Park-based lawyer who specializes in family law for gay couples, said a ruling could affect gay couples differently if the court strikes down DOMA but leaves the constitutional right to marry in the case against California’s Proposition 8 an open question.
“Let’s say a couple was married for 30 years, but because they couldn’t get married until two years ago, it would look technically like they’ve only been married for two years,” Silber said. “But when they’re now dividing up their property, will courts say, ‘Oh you’ve only been married two years, there’s not a lot of marital property to buy?’ or will the court recognize that longer-term relationships deserve some recognition and do some kind of equity based on the non-technical part.”
The Human Rights Campaign didn’t respond to requests for comment on lingering issues for married gay couples.
But the general agreement is that the Respect for Marriage Act, legislation designed to repeal DOMA, would address lingering problems regarding state validity because of the “certainty clause” in the bill. Under that provision, gay couples that legally marry in one jurisdiction would be assured federal benefits even if they move to another state that doesn’t recognize same-sex marriage. The Respect for Marriage Act has yet to be introduced in the 113th Congress.
Sen. Tammy Baldwin (D-Wis.) said during a Blade interview on Monday that she thinks the Respect for Marriage Act could see additional co-sponsors in the wake of so many legislators coming out for marriage equality, but certain bills may have to be rewritten in the aftermath of a court ruling striking DOMA before going forward.
“I think that trend is a very positive one, and, yet, once the Supreme Court in June announces its decision in these two cases, we’re going to have to read those decisions very carefully, understand their reach, impact and then go about the task of looking at their impact on pending legislation,” Baldwin said. “So it may mean that certain things need to be re-written. And that will be a joyous task if we made progress, but we still have a little bit more to go.”
Jon Davidson, legal director or Lambda Legal, was optimistic adjustments could be made, saying the federal government has had to determine previously whether to recognize certain marriages and disputed any notion advanced by DOMA proponents that overturning the law would create a legal mess.
“It’s very important that it be understood that that argument is baseless, as this issue has always existed without creating undue burdens for the federal government,” Davidson said. “For example, some states allow first cousins, or uncles and nieces and aunts and nephews, to marry, and some other states will not allow couples that closely related to marry and will not recognize marriages like those entered in other states as valid for purposes of their own state law.”
Another piece of legislation may be necessary to address the benefits issue for gay service members with same-sex spouses. Sections of U.S. code governing benefits for U.S. service members define marriage as one man, one woman independent of DOMA. Titles 10, 32 and 37 are controlled by DOMA in terms of their definition of marriage, but Title 38, which addresses veterans benefits,Ā defines āspouseā and āsurviving spouseā in similar terms and restricts the definitions of persons to the āopposite sex.ā
Sen. Jeanne Shaheen (D-N.H.), who sponsors legislation known as Charlie Morgan Act that would afford benefits to gay troops, said in a statement to the Blade that she’s prepared to push forward with the bill in the event that the Supreme Court ruling doesn’t address this issue.
āThe Charlie Morgan Act would amend the definition of āspouseā in the federal code in four areas and in turn grant same-sex military couples many benefits that theyāve rightfully earned,” Shaheen said. “Depending on how the Supreme Court rules on DOMA, legislation like this could still be necessary to ensure fairness and equality for all our men and women serving in uniform. Regardless of how the Supreme Court rules, I will continue to work with my colleagues on behalf of our LGBT servicemen and women, and their families, because no one should be denied benefits due to their sexual orientation.ā
There may be other difficulties as well. A blog posting Monday from National Public Radio’s Michelle Andrews speculates that married gay couples may have trouble covering their families with company insurance, although many businesses are pre-emptively addressing the issue.
“If a same-sex couple both lives and works in the District there may not be insurance difficulties,” Andrews writes. “But what if one of them works in Virginia, where same-sex marriage isn’t recognized? If a Virginia-based employer doesn’t voluntarily provide benefits to same-sex spouses, the employee might not be able to insure a spouse even though they’re legally married in the state where they live.”
But one issue that’s expected to immediately go away in the inability of gay Americans to sponsor their spouses for residency in the United States via a marriage-based green card application. Each time when asked to address the issue, the Obama administration has cited Section 3 of DOMA ā and only Section 3 of DOMA ā as the reason why sponsorship of a foreign spouse is unavailable for gay couples.
Lavi Soloway, a gay immigration attorney and founder of The DOMA Project, explained during a conference call last week that gay Americans should be able to sponsor their same-sex couples for residency in the United States immediately after the law is struck down.
“The moment the Defense of Marriage is struck down, green card petitions filed by same-sex married couples can be approved,” Soloway said. “There’s no other barrier; we’ve established that by filing 70 green card petitions over the last three years, we’ve established that with 40 appeals to the Board of Immigration Appeals, we’ve established that with 10 remanded cases from the Board of Immigration Appeals. The government’s position is that the law prevents same-sex couples from access only because of Section 3 of the Defense of Marriage Act. I’ve no expectation that the Obama administration will have any different opinion the day after DOMA is struck down ā if that happens.”
National
Federal judge blocks Trump’s order restricting gender-affirming care for youth
Seven families with transgender, nonbinary children challenged directive

A federal judge on Thursday issued a temporary restraining order that blocks President Donald Trump’s Jan. 29 executive order restricting access to gender-affirming health care for transgender people under age 19.
The order by Judge Brendan Hurson of the U.S. District Court for the District of Maryland, who was appointed by former President Joe Biden, came in response to a request from the plaintiffs in a lawsuit, filed on Feb. 4, against Trump’s directive.
The plaintiffs are seven families with trans or nonbinary children. They are represented by PFLAG National, GMLA, Lambda Legal, the American Civil Liberties Union, the ACLU of Maryland, and the law firms Hogan Lovells and Jenner & Block.
Hurson’s temporary restraining order will halt enforcement of Trump’s order for 14 days, but it can be extended. This means health care providers and medical institutions can provide gender-affirming care to minor patients without the risk of losing federal funding.
Families in the lawsuit say their appointments were cancelled shortly after the executive order was issued. Hospitals in Colorado, Virginia, and D.C. stopped providing prescriptions for puberty blockers, hormone therapy, and other interventions for trans patients as they evaluated Trump’s directive.
The harms associated with suddenly withholding access to medical care for these patients were a major focus of Thursday’s hearing on the plaintiffs’ request for the temporary restraining order.
The president’s āorder seems to deny that this population even exists, or deserves to exist,ā Hurson said, noting the elevated risk of suicide, poverty, addiction, and other hardships among trans people.
National
Trumpās trans erasure arrives at National Park Service
Fate of major 2016 LGBTQ Theme Study unclear

President Trumpās efforts at erasing trans identity intensified this week as employees at the National Park Service were instructed to remove the āTā and āQā from āLGBTQā from all internal and external communications.
The change was first noticed on the website of the Stonewall National Monument; trans people of color were integral to the events at Stonewall, which is widely viewed as the kickoff of the modern LGBTQ rights movement. The Stonewall National Monument is the first U.S. national monument dedicated to LGBTQ rights and history.
Reaction to that move was swift. New York City Council member Erik Bottcher wrote, āThe Trump administration has erased transgender people from the Stonewall National Monument website. We will not allow them to erase the very existence of our siblings. We are one community!!ā
But what most didnāt realize is that the removal of the āTā and āQā (for transgender and queer) extends to all National Park Service and Interior Department communications, raising concerns that the move could jeopardize future LGBTQ monuments and project work.
The Blade reached out to the National Park Service for comment on the trans erasure and received a curt response that the agency is implementing Trumpās executive order āDefending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Governmentā as well as agency directives to end all DEI initiatives.
The question being debated internally now, according to a knowledgable source, is what to do with a massive LGBTQ Theme Study, which as of Feb. 14 was still available on the NPS website. In 2014, the Gill Foundation recognized an omission of historic LGBTQ sites in the nationās records, and the organization made a grant to the National Park Service to commission a first-of-its-kind LGBTQ Theme Study, which was published in 2016. It was a landmark project that represented major progress for the LGBTQ community in having our contributions included in the broader American story, something that is becoming increasingly difficult given efforts like āDonāt Say Gayā laws that ban the teaching of LGBTQ topics in schools.
A source told the Blade that National Park Service communications staff suggested that removing chapters of the 2016 Theme Study that pertain to transgender people might placate anti-trans political appointees. But one employee pushed back on that, suggesting instead that the entire Theme Study be removed. Editing the document to remove one communityās contributions and perspective violates the academic intent of the project, according to the source. A final decision on how to proceed is expected soon.
Meanwhile, a protest is planned for Friday, Feb. 14 at noon at Christopher Park in New York City (7th Ave. S. and Christopher Street). The protest is being planned by staff at the Stonewall Inn.
āThe Stonewall Inn and The Stonewall Inn Gives Back Initiative are outraged and appalled by the recent removal of the word ātransgenderā from the Stonewall National Monument page on the National Park Service website,ā the groups said in a statement. āLet us be clear: Stonewall is transgender history. Marsha P. Johnson, Sylvia Rivera, and countless other trans and gender-nonconforming individuals fought bravely, and often at great personal risk, to push back against oppressive systems. Their courage, sacrifice, and leadership were central to the resistance we now celebrate as the foundation of the modern LGBTQ+ rights movement.ā
National
Victory Institute executive director speaks about movement response to Trump 2.0
Advocacy groups will lead efforts to push back against anti-LGBTQ administration

President Donald Trumpās issuance of a series of executive orders targeting transgender rights and LGBTQ-inclusive diversity programs on the first day of his second term was a clear signal of the new administrationās appetite for going after queer and gender diverse people.Ā
The Jan. 20 directives also brought into focus the extent to which organizations in the LGBTQ movement, particularly those whose work includes impact litigation, will be responsible for protecting the communities they serve from harmful and discriminatory laws and policies over the next four years.
At a critical time that is likely to test the limits of their capacity, these groups are facing challenges that could restrict their access to critical resources thanks in part to the conservative movementās opposition to diversity, equity, and inclusion in both government and the private sector.
LGBTQ organizations expected federal funding for their work would dry up when the incoming administration took over, given that Trump and his allies made no secret of their plans to aggressively reshape the government including by ridding U.S. agencies of all DEI-related programs, policies, and activities.Ā
Trump went even further, however, issuing orders to categorically freeze the disbursement of government funds tied to preexisting grants and contracts, while threatening investigations of private companies for āillegalā policies and practices related to DEI.
Partly in response to pressure from conservative leaders and activists, over the past couple of years companies have increasingly backed away from DEI efforts including, especially, support for LGBTQ communities and causes.
Coupled with the loss of federal funding, a decline in corporate giving to LGBTQ organizations could have devastating impacts on the communities they serve, potentially leading to cutbacks in programs and services core to their missions or imperiling their efforts to push back against a hostile regime.
āContinuing to fund our work is obviously top of mind for everyone right now,ā Elliot Imse, executive director of the LGBTQ+ Victory Institute, told the Washington Blade during an interview last week.Ā Ā
The move by many private companies away from supporting LGBTQ equality has been surprising, Imse said, but āwhat we know is itās a very uncertain environment for corporations right now, and they are feeling out these new realities.ā
On the other hand, the moment also presents an opportunity to remind businesses that commitments to DEI are good for their bottom line while rewarding companies that resist pressure to abandon their LGBTQ customers, employees, and communities, Imse said.
āThere’s a lot of courageous corporations out there, too, right now, a lot that are continuing to step up. And we need to be grateful; we need to be making purchasing decisions as a community with those corporations in mind. Every corporation that has reaffirmed its commitment to us, we need to go out and support them.ā
āWhile Victory Institute ā like all LGBTQ+ organizations ā is concerned about the current fundraising environment, we have a programmatic plan in place that directly addresses the realities of what is happening across the country right now,ā he said, with programs to support LGBTQ elected officials serving everywhere from small municipal offices to the most powerful positions in government.Ā
A diverse pipeline of out leaders from diverse backgrounds is the best bulwark āagainst attacks on our equality and democratic backsliding,ā Imse said. āWe have a very robust programmatic plan for 2025 ā and we need to execute on it at this critical moment.ā
While the Victory Institute is currently looking for funding to support the organizationās international work to compensate for the loss of federal grants, Imse said the group plans to expand U.S.-based programs, maximizing their reach at a time when this work is especially critical.Ā Ā
āWeāre going to be in more cities than ever before. Weāre going to have a larger training presence than ever before, including our LGBTQ+ Public Leadership Summits, which are specifically designed to inspire and recruit LGBTQ+ people to run for office. It is essential folks reject the demoralization of the current moment and that we have more boots on the ground to support those willing to step up and run.ā
He added, āwe are hopeful that we will be able to raise the money we need to carry these programs out, and we believe we can make the case to donors that these programs are an essential path forward.ā
At the same time, Imse acknowledged that LGBTQ groups, including the Victory Institute, are in a difficult position at the moment and āweāll absolutely have to adjust if we see a downturn in fundraising throughout the year.ā
āit’s going to be an uphill battle, there’s no doubt about that. Like all other organizations, we’re going to watch the numbers and adjust as necessary,ā he said, adding, āthe people we have at our organization are what makes our organization strong ā their expertise, their relationships, the networks that they’ve built.ā
And while he said āmaking sure that we meet the moment is something that keeps me up at night,ā Imse stressed that “figuring out how to balance the reality we are in versus optimism is something that is on everyone’s mind as you talk to LGBTQ+ community members, your staff, your fundersā who recognize that āyou must have hope, because if people back away from our equality at this moment, it’ll be much worse than even the situation weāre in right now.ā
There is no shortage of good reasons to hold onto hope, Imse said. āOur movement has always thrived in moments of crisis. While weād prefer no crisis, it refocuses us. It motivates us. And oftentimes leads to breakthroughs that we may not have had otherwise. It destroys complacency. It instills urgency.ā
After Trump took office and the new Congress was sated with GOP majorities in both chambers, LGBTQ groups whose work includes lobbying or government relations understood their ability to influence policy at the federal level would be limited, at least until Democratic allies have the opportunity to retake control of the House in 2026.Ā
The Victory Institute was especially well positioned to shift away from Washington, Imse said, because state legislatures, city councils, and school boards have always been the organizationās ābread and butterā and the elections for these positions ātruly matterā even if they are less āhigh profileā than U.S. congressional races.Ā
āWhen we’re talking about opportunities to make progress in the near future, opportunities to launch a successful offense and defense, it is in these legislative bodies,ā he said. āAnd they arguably make more impact on individualsā lives than the federal government does.ā
Imse added this is especially true with regard to opportunities for legislative action to support LGBTQ Americans and defend their rights, which is unlikely to happen on Capitol Hill for a ālong time.ā
It is especially important now that LGBTQ communities and organizations support each other, he said.
LGBTQ movement groups, particularly those with international focus, āhave been phenomenal in bringing us together and trying to find out whatās been done, keeping us up to date on potential litigation opportunities, as well as looking for funders that are willing to step up at this absolutely critical moment in our movementās history,ā Imse said.
āWe also need our community to step up in terms of supporting these organizations,ā he said, āfinancially through resources and capacity and giving their time, because that’s the only way we’re going to be able to move forward effectively.ā
It is āimportant that our community members remain active, engaged, and involved, and that our LGBTQ+ media continues to ensure our stories are being told,ā Imse said, adding, āEspecially right now, this is an entire movement ecosystem that is working to make sure whatever backsliding is about to occur is not permanent.ā
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