Politics
10 years later, another Supreme wait
Attorneys for landmark gay rights cases compare their significance to pending lawsuits
The U.S. Supreme Court (Washington Blade file photo by Michael Key)
Expectations are high as the wait continues for two decisions expected in June on marriage cases before the U.S. Supreme Court, just as they were 10 years ago when gay rights supporters awaited what amounted to landmark rulings in two other cases.
In 2003, two cases reshaped the landscape for gay rights: the U.S. Supreme Court decision in Lawrence v. Texas, which struck down state sodomy laws throughout the country, and the Massachusetts Supreme Court decision in Goodridge v. Department of Public Health, which for the first time led to the legalization of marriage equality in a U.S. jurisdiction.
The two cases currently before the court — Hollingsworth v. Perry, which aims to strike down California’s Proposition 8, and United States v. Windsor, which is challenging the Defense of Marriage Act — are different in many respects from the cases 10 years ago. Lawrence was related to sodomy laws and Goodridge was a state lawsuit that resulted in a change only in Massachusetts. Still, they’re similar in terms of their potential significance.
The two attorneys who made arguments before the courts in the decades-old lawsuits — in the Goodridge case, Mary Bonauto, civil rights director for Gay & Lesbian Advocates & Defenders, and, in the Lawrence case, Paul Smith, a partner at Jenner & Block — acknowledged the magnitude of the cases both then and now, but said it’s hard to compare the significance of the older ones to the newer ones.
Smith said we won’t know the significance of the DOMA and Prop 8 cases until the Supreme Court rules on them, but touted the Lawrence decision striking down sodomy bans across the country as significant in any event.
“It provided the foundation for all the progress that has been made on marriage and other forms of discrimination over the past 10 years,” Smith said. “It did that by establishing that our relationships are just as important and valuable as different-sex relationships and by saying that the government can’t use morality as a justification for interfering with individual choices about who to love and how. With those principles in place it’s very hard for anyone to come up with a legitimate and persuasive justification for discrimination based on sexual orientation.”
Similarly, Bonauto said “it’s not really easy” to compare the significance of the Goodridge case to the Perry and Windsor lawsuits, recalling the different cultural climate 10 years ago in which the Massachusetts case was argued.
“In 2003, these waters were largely uncharted,” Bonauto said. “There were zero marriage states, a civil union system in Vermont, and 36 states with discriminatory statutes and four states with amendments. But then, as now, we were right; right on the constitutional principles and the utter absence of legal justifications for this discrimination.”
Those court rulings — in particular the Goodridge decision because it was the first successful case for full marriage equality in the United States — paved the way for 11 more states to approve same-sex marriage over the course of 10 years, including the legalization of marriage equality in Minnesota just this week.
Just as observers are parsing statements from justices now in an attempt to determine what the court may rule on Prop 8 and DOMA, followers of the court cases a decade ago were also trying to predict the future based on what was said during oral arguments.
In Lawrence, Smith said moderate justices at the time — Associate Justice Anthony Kennedy and then-Associate Justice Sandra Day O’Connor — were “uncharacteristically quiet,” making it difficult to predict how the court would rule.
“But we took hope from the fact that they didn’t say anything negative,” Smith added. “We were relatively optimistic that the court would strike down the sodomy laws once the court decided to take the case.”
For Goodridge, Bonauto said the wait was different from now in two regards: first because same-sex marriage wasn’t legalized anywhere in the country at the time, and second because there was no set timeline for when the Massachusetts Supreme Court had to make a decision.
“We thought and hoped we were right on the timing,” Bonauto said. “There were a lot of nerves and uncertainty while we waited. The fact that we didn’t know when the decision would come — no clue at all — added to the nerves and fueled the rumor factory. In the end, the decision turned out to be beautifully written and world-changing.”
In the present, many observers believe that the Supreme Court will issue a decision that will strike down DOMA on its merits — either based on equal protection or federalism grounds — although issues of standing were examined.
For Prop 8, much attention has been given to justices’ interest in the standing of Prop 8 proponents to defend the measure in court. A determination that they lack standing would leave in place a lower court ruling and likely invalidate the ban on same-sex marriage in California.
The standing issues before the Supreme Court, as Bonauto noted, also means the wait for Goodrige was different because the Massachusetts Supreme Court couldn’t rule on this basis.
“There were no outs,” Bonauto said. “They had to decide whether denying marriage to gay couples violates the Constitution of the Commonwealth or not. And I was asked very specifically in oral arguments about Vermont civil unions and a remedy that would provide those protections, and I said, ‘That was not what the plaintiffs were seeking; they were seeking access to marriage itself.'”
Notably, the oral arguments in Lawrence v. Texas took place on March 26, 2003, which is exactly 10 years to the day that oral arguments took place in the Prop 8 case on March 26, 2013. A ruling was issued in the Lawrence case on June 26, 2003 just as a ruling is expected in the Prop 8 and DOMA cases in June 2013.
In the Goodridge case, oral arguments took place before the Massachusetts Supreme Court on March 3, 2003, but a decision wasn’t rendered until Nov. 18, 2003.
Mary Bonauto (Washington Blade photo by Michael Key)
It remains to be seen whether the wording of rulings from the Supreme Court will have the same power as the language that justices handed down a decade ago. The 4-3 ruling in the Goodridge case affirmed that same-sex couples had the right to marry with never before seen language.
“The question before us is whether, consistent with the Massachusetts Constitution, the Commonwealth may deny the protections, benefits, and obligations conferred by civil marriage to two individuals of the same sex who wish to marry,” the decision states. “We conclude that it may not. The Massachusetts Constitution affirms the dignity and equality of all individuals.”
In the Lawrence case, the 6-3 opinion written by Associate Justice Anthony Kennedy determined that the framers intended language in the U.S. Constitution to be reinterpreted by later generations in accordance with their vision of liberty.
“They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress,” Kennedy wrote “As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”
Also unknown is how the public might react if the Supreme Court issues affirmative rulings for marriage equality in the Prop 8 and DOMA cases.
In 2003, the court ruling in Massachusetts — combined with then-San Francisco Mayor Gavin Newsom’s decision to issue marriage licenses to gay couples — sparked a national backlash that led in the next year to 11 states passing constitutional amendments banning same-sex marriage. Former President George W. Bush ran a successful re-election campaign in which he advocated for passage of a Federal Marriage Amendment.
But Bonauto was skeptical that the legalization of same-sex marriage led to the passage of state constitutional amendments and Bush’s re-election — saying the religious right wanted to enact the amendments anyway and analysis shows the marriage issue wasn’t as much a boon to Bush as it may seem on its face.
“By the time we had filed Goodridge, there were already 36 state statutes and four amendments,” Bonauto said. “So, for a lot of these states, they didn’t have anything else to do but to pass an amendment because they already had statutes barring marriage. So I really view this as political opportunism both with elected officials and also the organized right-wing. It was trying to cut us off and change the facts on the ground, so that they could isolate this debate and isolate this issue in certain states.”
Given the growing acceptance of marriage equality — one widely noted recent poll shows it enjoys support from 58 percent of the American public, compared to 30 percent support in 2003 — the negative reaction to any pro-gay rulings will likely be more restrained.
In the event the Supreme Court in June renders similarly favorable decisions in support of rights for gay couples, Bonauto predicted some would speak out in opposition, but the reaction generally would be favorable.
“There are going to be people who are going to say things, and some of them have echo chambers and bully pulpits and their blogs,” Bonauto said. “I don’t think we should equate that to a backlash. I just think that is what public discourse is like in 2013. I really believe that the overwhelming majority of Americans are at a point where they accept and embrace the freedom to marry for same-sex couples.”
Politics
Former GOP Sen. Alan Simpson, longtime supporter of LGBTQ rights, dies at 93
Simpson spoke with the Blade about his post-Senate advocacy in 2013
Former U.S. Sen. Alan Simpson of Wyoming, a Republican who long championed LGBTQ rights, died on Friday at age 93.
After serving in the Senate from 1979 to 1997, including a stint as the GOP whip from 1985 to 1995, Simpson continued to maintain an active role in American politics for decades. Much of his work on behalf of LGBTQ issues came through his appointment as honorary chair of the Republican Unity Coalition, gay-straight alliance group within the party, starting in 2001.
The former lawmaker spoke with the Washington Blade’s Lou Chibbaro Jr. for an interview in 2013 about how he was able to reconcile his work in Republican politics with his support for expanding rights and protections for LGBTQ people.
“All I know is we have made great strides for gays and lesbians and transvestites,” he said when asked if he thought Congress would soon approve the Employment Non-Discrimination Act, or ENDA, a bill calling for banning job discrimination against LGBT people.
The legislation did not ultimately pass, but at the time Simpson said he was hopeful the effort would overcome obstruction from some corners of the Republican conference because “other people know these people and they love them.”
“And I’m very pleased,” the former senator added. “Anyone who is on the side of justice and freedom and caring about fellow human beings is pleased about what’s going on.”
Simpson explained that his approach to LGBTQ rights was informed by his commitment to fairness and equality for everyone, telling the Blade that he shares these convictions with his wife of (then) 59 years, Ann Schroll Simpson, who survives him.
The couple had come to know gay people over the years, he said. “I had a gay cousin who was a war hero in World War II — a wonderful man.”
Asked whether he has received flak from some fellow Republicans and others over his support for LGBT rights and same-sex marriage, Simpson said, “Everything I’ve done has had flak. I’m 82 now and I’ve effectively pissed off everyone in America. So yeah, but I just say we’re all God’s children. We’re all human beings.”
After leaving the Senate, Simpson’s advocacy for LGBTQ people included helping to convince former President Gerald Ford to join a gay rights organization, a first for a U.S. president; signing on to amicus briefs filed with the U.S. Supreme Court in support cases that that led to the overturning of state sodomy laws and established marriage equality as the law of the land; supporting the movement to overturn the discriminatory “Don’t Ask, Don’t Tell” law; writing to the late former Rev. Fred Phelps in objection to his protests of gay events, including funerals of gay people; and supporting creative works about the anti-gay advocacy of the late former U.S. Sen. Joseph McCarthy and the hate crime against murdered gay college student Matthew Shepard.
An obituary published Friday in The New York Times notes Simpson’s work on behalf of immigration reform and reproductive rights including abortion in addition to his stances on LGBTQ issues including his longtime support for same-sex marriage.
Simpson in 2017 published an opinion piece in the paper objecting to efforts by “fringe-right groups and raging extremists” to convince President Donald Trump to sign an executive order “that would allow discrimination against gays, women and religious minorities.”
In 2022, he was awarded the Presidential Medal of Freedom by then-President Joe Biden.
Congress
House Republican misgenders Sarah McBride in transphobic attack
Comment derailed subcommittee hearing
U.S. Rep. Keith Self (R-Texas) deliberately and repeatedly used the honorific “Mr.” for U.S. Rep. Sarah McBride (D-Del.), the first and only transgender member of Congress, sparking a confrontation that derailed a House subcommittee hearing on Tuesday.
After Self, who leads the House Foreign Affairs Committee’s Europe Subcommittee, misgendered the congresswoman from Delaware, she replied “Thank you, Madam Chair.”
The top Democrat in the room, Massachusetts Congressman Bill Keating, then spoke up to request that the chair repeat his introduction, which he did, again referring to McBride as “Mr.”
“You are out of order. Mr. Chairman,” Keating said, raising his voice. “Have you no decency? I mean, I have come to know you a little bit, but this is not decent.”
Self then started to adjourn the hearing, telling colleagues “we will continue this” before he was interrupted by the ranking member, who told him, “You will not continue it with me unless you introduce a duly elected representative the right way.”
McBride addressed the matter in a post on X Tuesday night, writing, “No matter how I’m treated by some colleagues, nothing diminishes my awe and gratitude at getting to represent Delaware in Congress. It is truly the honor and privilege of a lifetime. I simply want to serve and to try to make this world a better place.”
No matter how I'm treated by some colleagues, nothing diminishes my awe and gratitude at getting to represent Delaware in Congress. It is truly the honor and privilege of a lifetime. I simply want to serve and to try to make this world a better place.
— Sarah McBride (@SarahEMcBride) March 12, 2025
Self doubled down again, writing on social media “it is the policy of the United States to recognize two sexes, male and female,” citing President Donald Trump’s day-one executive order mandating that the federal government treat gender as a binary that cannot and does not deviate from one’s birth sex.
The policy is out of step with mainstream science and medicine, which recognizes that human biology is complex and one’s gender identity is often but not always linked to one’s sex at birth. Critics of the order have also noted that its narrow definitions for sex and gender exclude people who are born intersex, with a combination of male and female biological traits (genitals, chromosomes, hormones.)
“While there are some areas of active debate, scientists are in wide agreement that biological sex in humans as well as the rest of life on earth is much more complicated than a simple binary,” a biology professor said in a report published by the Washington Post last month.
“It’s trying to explain away people,” a health law professor told the paper, referring to the executive order. The administration, he added, wants “to try to present it as this extremely simple issue — as if it’s really just one or the other, you’re male or you’re female.”
McBride’s historic election last year came as Trump and other Republicans were running on promises to enact increasingly extreme anti-trans legislation or policies, with GOP campaigns, spending $21.5 million on anti-trans ads, with much of that spend coming at the tail end o the 2024 cycle.
Transphobic attacks against the congresswoman, including from House Republicans, began before she was even seated. U.S. Reps. Nancy Mace of South Carolina and Marjorie Taylor Greene of Georgia both misgendered her repeatedly while touting Mace’s proposal to prohibit trans women from using sex-segregated women’s bathrooms at the Capitol, publicly acknowledging that the move was intended to target McBride. More recently, U.S. Rep. Mary Miller of West Virginia misgendered her in February on the House floor.
When serving in the Delaware Senate, McBride was recognized for her successful sponsorship of a bill providing 12-week paid family and medical leave for workers, an issue that was central to her congressional campaign along with her focus on healthcare reform and is a key piece of her focus on reforming care infrastructure in Congress.
In cases where she has elected to address the cruel and bigoted attacks against her from GOP colleagues and others, McBride, has consistently tried to redirect attention towards her work on behalf of the constituents she serves, as seen in her post on Tuesday.
In January, McBride partnered with U.S. Rep. Young Kim (R-Calif.) on the first bill she introduced in Washington, which aims to protect consumers from scams in the credit repair industry.
Last week, the congresswoman joined her colleagues in reintroducing the bipartisan Protecting the Right to Organize Act, and together with other Democrats introduced the John Lewis Voting Rights Advancement Act which, per a press release, would “restore and modernize the protections of the Voting Rights Act of 1965 and prevent states with a history of voter discrimination from erecting new barriers to the ballot box.”
Congress
Republican lawmakers demand IOC ban transgender athletes from women’s events
2028 Summer Olympics to take place in Los Angeles
A group of Republican lawmakers have demanded the International Olympic Committee ban transgender athletes from women’s athletic competitions.
The lawmakers — U.S. Sens. Jim Risch (R-Idaho), Mike Crapo (R-Idaho), Jim Banks (R-Ind.), Marsha Blackburn (R-Tenn.), Steve Daines (R-Mont.), Lindsey Graham (R-S.C.), Josh Hawley (R-Mo.), Jim Justice (R-W.Va.), James Lankford (R-Okla.), Tim Sheehy (R-Mont.), and Tommy Tuberville (R-Ala.) and U.S. Reps. Burgess Owens (R-Utah), Lauren Boebert (R-Colo.), Vern Buchanan (R-Fla.), Tim Burchett (R-Tenn.), Dan Crenshaw (R-Texas), Brad Finstad (R-Minn.), Craig Goldman (R-Texas), Mark Green (R-Tenn.), Ashley Hinson (R-Iowa), Mike Kennedy (R-Utah), Nick LaLota (R-N.Y.), Blake Moore (R-Utah), Riley Moore (R-W.Va.), Austin Pfluger (R-Texas), John Rose (R-Tenn.), and Claudia Tenney (R-N.Y.) — made the demand in a letter they sent to IOC President Thomas Bach on Tuesday.
“In the United States, we honor our female Olympians. These athletes, and so many others, have inspired generations of young women around the world to compete and excel. Their legacy underscores the vital importance of fairness in women’s sports at every level of competition,” reads the letter. “Future Olympians are counting on the IOC to protect the opportunities of women and girls to contribute to this proud tradition.”
“To do so, the IOC must base eligibility for women’s athletic competitions on biological sex,” it adds. “Allowing biological males to compete in women’s categories undermines competitive opportunities, safety, and respect for female athletes.”
The IOC in 2021 adopted its “Framework on Fairness, Inclusion and Nondiscrimination on the Basis of Gender Identity and Sex Variations” that includes the following provisions:
• 3.1 Eligibility criteria should be established and implemented fairly and in a manner that does not systematically exclude athletes from competition based upon their gender identity, physical appearance and/or sex variations.
• 3.2 Provided they meet eligibility criteria that are consistent with principle 4 (“Fairness”, athletes should be allowed to compete in the category that best aligns with their self-determined gender identity.
• 3.3 Criteria to determine disproportionate competitive advantage may, at times, require testing of an athlete’s performance and physical capacity. However, no athlete should be subject to targeted testing because of, or aimed at determining, their sex, gender identity and/or sex variations.
The 2028 Summer Olympics will take place in Los Angeles.
President Donald Trump on Feb. 5 issued an executive order that bans trans women and girls from female sports teams in the U.S. The Human Rights Campaign and other advocacy groups criticized Democratic California Gov. Gavin Newsom last week after he said it is “deeply unfair” to allow trans athletes to compete in women’s sports.
The Guardian on Feb. 25 reported the State Department has ordered consular officials “to deny visas to transgender athletes attempting to come to the U.S. for sports competitions, and to issue permanent visa bans against those who are deemed to misrepresent their birth sex on visa applications.” A travel advisory for trans and nonbinary people who are planning to visit the U.S. that the German government issued last week specifically notes the Trump-Vance administration has banned the State Department from issuing passports with “X” gender markers.
The letter notes Trump’s Feb. 5 executive order, and indicates the signatories “stand united with Secretary of State Marco Rubio and President Trump in calling on the IOC to amend its standards and safeguard the opportunities of female athletes on the Olympic stage.”
“We urge you to reaffirm the IOC’s commitment to upholding the integrity of women’s Olympic competitions and ensure that only biological women and girls are allowed to compete in female sports categories,” reads the letter. “The Olympic Games should be a model for integrity in sports, and the next IOC president must firmly defend the rights of dedicated female athletes.”
The Washington Blade has reached out to the IOC for comment.
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