News
HISTORIC: Supreme Court strikes down DOMA, Prop 8
DOMA violates equal protection; Prop 8 supporters lack standing
Gay marriage advocates rallying at the Supreme Court earlier this year during oral arguments for two major cases. The court struck down two anti-gay laws today, opening the door for expanded rights for same-sex couples in many jurisdictions. (Washington Blade photo by Michael Key)
In a historic development, the U.S. Supreme Court handed down two decisions on Wednesday that advanced marriage rights for gay couples and will almost certainly reshape the national debate on the issue.
In one 5-4 ruling, the court determined that the 1996 Defense of Marriage Act is unconstitutional because it violates due process and equal protection for same-sex couples under the Fifth Amendment to the U.S. Constitution. That decision means the U.S. government must begin recognizing same-sex marriages for a broad range of benefits, including those related to federal taxes and immigration law.
Associate Justice Anthony Kennedy wrote the opinion and was joined by Associate Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan.
“The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity,” Kennedy said. “By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.”
The dissenting justices were Chief Justice John Roberts and Associate Justices Antonin Scalia, Clarence Thomas and Samuel Alito. In his opinion, Roberts says Congress acted constitutionally in passing DOMA and took issue with the authority the court granted itself in overturning the anti-gay statute.
Writing his dissent, Scalia said the decision of the court robs the American public of its ability to decide the issue of same-sex marriage through the democratic process.
“Some will rejoice in today’s decision, and some will despair at it; that is the nature of a controversy that matters so much to so many,” Scalia writes. “But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better.”
In another 5-4 decision, the court determined anti-gay forces don’t have standing to defend California’s Proposition 8. That decision leaves in place a district court injunction that prohibits the state of California from enforcing its ban on same-sex marriage. Gay couples will be able to marry in the state once the U.S. Ninth Circuit Court of Appeals lift its stay.
Roberts wrote the majority opinion for the court and was joined by Scalia, Ginsburg, Breyer and Kagan. Kennedy wrote the dissenting opinion and was joined by Thomas, Alito and Sotomayor.
“The Article III requirement that a party invoking the jurisdiction of a federal court seek relief for a personal, particularized injury serves vital interests going to the role of the Judiciary in our system of separated powers,” Roberts writes. “States cannot alter that role simply by issuing to private parties who otherwise lack standing a ticket to the federal courthouse.”
The court’s ruling in the case against Prop 8, known as Hollingsworth v. Perry, is specific only to California — meaning the justices didn’t grant the expansive ruling that supporters of marriage equality had sought to bring marriage equality to all 50 states.
Shortly after HRC President Chad Griffin walked out of the court with plaintiffs in the marriage cases, he received a call from President Obama who was aboard Air Force One. Obama congratulated Griffin for the victories as reporters and onlookers watched.
The decisions were handed down 10 years to the day that the Supreme Court announced its landmark decision in the 2003 case of Lawrence v. Texas, which struck down state sodomy laws throughout the country.
The challenge to DOMA, known as United States v. Windsor, was filed by the American Civil Liberties Union and others in 2011 on behalf of lesbian New York widow Edith Windsor. Upon the death of her spouse Thea Spyer in 2009, Windsor had to pay the U.S. government $363,000 in estate taxes because of DOMA — a penalty that she wouldn’t have faced if she were married to a man.
The decision striking down DOMA affirms the initial rulings against the federal anti-gay law last year by U.S. District Judge Barbara Jones and the U.S. Second Circuit Court of Appeals.
The Obama administration helped in securing the ruling against DOMA. After it stopped defending DOMA in 2011, the U.S. Justice Department began filing briefs against the law and sent attorneys to litigate against it during oral arguments. U.S. Solicitor General Donald Verrilli argued against DOMA before the Supreme Court, saying the law doesn’t hold up under the standard heightened scrutiny, or a greater assumption it’s unconstitutional.
But the Supreme Court didn’t get to the issue of heightened scrutiny in the DOMA case because it found the law was unconstitutional under the less stringent standard of rational basis review.
The case against Prop 8 was filed by the California-based American Foundation for Equal Rights in 2009 on behalf of two plaintiff couples — a lesbian couple, Kristin Perry and Sandra Stier, and a gay male couple, Paul Katami and Jeffrey Zarrillo — who were unable to marry because of the state’s constitutional ban on same-sex marriage.
The attorneys representing them were Theodore Olson, a former U.S. solicitor general during the Bush administration, and David Boies, a so-called “dream team” of attorneys who represented opposite sides in the 2000 case Bush v. Gore.
Because the state officials — California Gov. Jerry Brown and Attorney General Kamala Harris — refused to defend Prop 8 in court, anti-gay groups that put Prop 8 on the ballot in 2008 such as ProtectMarriage.com took up the responsibility of defending the measure. The California Supreme Court certified the groups had standing under state law and the U.S. Ninth Circuit Court of Appeals affirmed they had standing.
But the high court determined that these groups — even though attorney Charles Cooper spoke on behalf on them in oral arguments — don’t have standing because they lack any legal injury in the wake of the lower court’s determination that Prop 8 is unconstitutional.
The Obama administration had also assisted in efforts to secure a ruling against California’s Proposition 8. The Justice Department filed a friend-of-the-court brief in February saying the ban was unconstitutional and Verrilli argued in court against Prop 8, suggesting all eight states with domestic partnerships should be required to grant marriage rights to gay couples.
The issue of standing also came up in the DOMA case for two reasons. One, the court had questioned whether the U.S. Justice Department could have appealed the district court ruling to the Second Circuit because the initial ruling against DOMA was what the Obama administration wanted. Two, the court questioned whether the Bipartisan Legal Advisory Group, a five-member Republican-majority panel within the U.S. House, had standing to take up defense of DOMA in the administration’s stead.
But the court determined an active controversy remains in the case because the U.S. government still hasn’t refunded Windsor the $363,000 she paid in estate taxes. Once the court determined it has jurisdiction based on the Obama administration’s appeal of the lawsuit, it didn’t get to the issue of whether BLAG has standing.
In his ruling, Kennedy writes the continuation of litigation in the absence of a federal ruling on DOMA would cause uncertainty.
“[T]he costs, uncertainties, and alleged harm and injuries likely would continue for a time measured in years before the issue is resolved,” Kennedy writes in the ruling. “In these unusual and urgent circumstances, the very term ‘prudential’ counsels that it is a proper exercise of the Court’s responsibility to take jurisdiction.”
The White House
Trump’s first week in office sees flurry of anti-LGBTQ executive actions
Issuance of two orders and rescission of seven specifically targeted the LGBTQ community
On the first day and in the first week of his second term, President Donald Trump issued two executive orders taking aim specifically at LGBTQ people while rescinding seven actions by the Biden-Harris administration that expanded rights and protections for the community.
As detailed by the Human Rights Campaign, the anti-trans order, titled “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” would prohibit the federal government from recognizing people and populations whose birth sex does not match their gender identity, while facilitating discrimination against LGBTQ communities “in the workplace, education, housing, healthcare, and more.”
Additionally, the order directs the attorney general to allow “people to refuse to use a transgender or nonbinary person’s correct pronouns, and to claim a right to use single-sex bathrooms and other spaces based on sex assigned at birth at any workplace covered by the Civil Rights Act of 1964 and federally funded spaces.”
The U.S. Departments of State and Homeland Security are further instructed to stop issuing documents like passports, visas, and Global Entry cards that conflict with the new, restrictive definition of sex that excludes consideration of trans and gender diverse identities.
The order also would prohibit federal funding, including through grants and contracts, for any content that is believed to promote “gender ideology,” while implementing restrictions on the use of federal resources to collect data on matters concerning gender identity.
There would also be consequences for particularly vulnerable populations, such as rules prohibiting trans women from accessing domestic violence shelters, forcing trans women to be housed with men in prisons and detention facilities, and prohibiting correctional facilities from providing gender affirming healthcare of any kind.
The second executive order targeting LGBTQ people would end diversity, equity, and inclusion programs across the federal government. HRC points out that “The preamble to the order includes a mention of the Project 2025 trope ‘gender ideology,’ while the language does not actually define DEI — meaning that “confusion and differing understandings of what DEI entails are likely to extend the regulatory process and may, in the meantime, have a chilling effect on any efforts that could potentially be considered ‘DEI.'”
Of the Biden-era executive actions that were repealed, HRC called special attention to “President Biden’s directive to agencies to implement the Supreme Court ruling in Bostock v. Clayton County, which found that Title VII’s prohibition of discrimination on the basis of sex includes prohibitions of discrimination on the basis of sexual orientation and gender identity.”
The organization notes that the ruling, decided in 2020, remains binding precedent.
State Department
State Department directive pauses most US foreign aid spending
PEPFAR among impacted programs
Secretary of State Marco Rubio on Friday directed State Department personnel to stop nearly all U.S. foreign aid spending for 90 days.
A copy of the directive that Politico obtained requires State Department staffers to immediately issue “stop-work orders” on nearly all “existing foreign assistance awards.”
President Donald Trump on Jan. 20 issued an executive order that paused U.S. foreign aid “for assessment of programmatic efficiencies and consistency with United States foreign policy.”
“All department and agency heads with responsibility for United States foreign development assistance programs shall immediately pause new obligations and disbursements of development assistance funds to foreign countries and implementing non-governmental organizations, international organizations, and contractors pending reviews of such programs for programmatic efficiency and consistency with United States foreign policy, to be conducted within 90 days of this order,” it reads. “The Office of Management and Budget (OMB) shall enforce this pause through its apportionment authority.”
Politico reported Rubio’s directive is more expansive than the executive order, although it does not stop military aid to Egypt and Israel, emergency food assistance and “legitimate expenses incurred prior to the date of this.” The President’s Emergency Plan for AIDS Relief, known as PEPFAR, is among the programs impacted.
“This is a matter of life or death,” said International AIDS Society President Beatriz Grinsztejn in a press release. “PEPFAR provides lifesaving antiretrovirals for more than 20 million people — and stopping its funding essentially stops their HIV treatment. If that happens, people are going to die and HIV will resurge.
The promotion of LGBTQ and intersex rights was a cornerstone of the Biden-Harris administration’s foreign policy.
The decriminalization of consensual same-sex sexual relations was one of the previous White House’s priorities in these efforts. The U.S. Agency for International Development in 2023 released its first-ever policy for LGBTQ- and intersex-inclusive development.
Rubio this week issued a directive that bans embassies and other U.S. diplomatic institutions from flying the Pride flag. A second directive that Rubio signed directs State Department personnel to “suspend” any passport application in which an “X” gender marker is requested.
“This guidance applies to all applications currently in progress and any future applications,” reads the directive. “Guidance on existing passports containing an ‘X’ sex marker will come via other channels.”
The directive stems from a sweeping executive order — “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government” — that Trump signed on Monday after he took office. The president in his inaugural speech noted the federal government’s “official policy” is “there are only two genders, male and female.”
District of Columbia
Capital Pride board member resigns, takes role as Trump’s acting Sec’y of Labor
Vince Micone asserts ‘DEIA programs resulted in shameful discrimination’
On his first day in office President Donald Trump on Jan. 20 named Vince Micone, who’s gay, as Acting Secretary of the U.S. Department of Labor.
Micone, who has worked in high-level positions in federal government agencies for at least 30 years, has served on the board of directors of D.C.’s Capital Pride Alliance, which organizes most of D.C.’s LGBTQ Pride events, for 15 years. But Micone resigned from the board this week, just months before the city’s WorldPride celebration that is expected to draw 2+ million visitors to D.C. in May and June.
Micone most recently served as head of the Department of Labor’s Office of the Assistant Secretary for Administration and Management, according to a report by Reuters. But his tenure as Secretary of Labor will be a short appointment.
Trump has nominated former U.S. Rep. Lori Chavez-DeRemer, a Republican from Oregon, to be the permanent Secretary of Labor. Her nomination is expected to be confirmed by the U.S. Senate in the next week or two.
Micone’s appointment as acting Secretary of Labor became Trump’s second appointment of an out gay man to a U.S. Cabinet position. In November, shortly after his election as president, Trump nominated gay hedge fund executive Scott Bessent to be U.S. Treasury Secretary.
The Senate Finance Committee this week voted to approve Bessent’s nomination and to send it to the full Senate for final approval.
Micone couldn’t immediately be reached by the Washington Blade for comment. Ashley Smith, chair of the Capital Pride Alliance board, said Micone informed the board he was stepping down this week as a board member due to his new duties as Acting Secretary of Labor.
The Capital Pride Alliance website includes a short biography of Micone that says he has served on the organization’s board since 2010 and until his resignation this week served as Vice President of Operations and Treasurer.
“Vince serves as co-chairperson of the Combined Federal Campaign of the National Capital Area, which has raised $732 million for charities in our community, across the nation, and around the world under his leadership,” the Capital Pride write-up says.
“Vince has served as an elected Advisory Neighborhood Commissioner in D.C, a member of the Mayor’s LGBT Commission, and Chairperson of the D.C. Commission on National and Community Service,” according to the write-up. “He has participated in many LGBTQ+ organizations, is a DC Front Runner, and served as a fierce advocate for HIV programming and quality for our community,” it says.
The Reuters report says that prior to working at the Department of Labor, Micone held positions with the Department of Commerce, Department of Treasury, and Department of Homeland Security. Reuters also reported that Micone served on Trump’s 2016 presidential transition team.
On Thursday, Micone sent an email to all Labor Department staffers informing them that, “We are taking steps to close all agency [Diversity, Equity, Inclusion, and Accessibility] offices and end all DEIA-related contracts in accordance with President Trump’s Executive Orders … These programs divided Americans by race, wasted taxpayer dollars, and resulted in shameful discrimination.”
The email, which bears Micone’s name and title, goes on to threaten any department employees who “disguise these programs by using coded or imprecise language.”
The same letter has been sent to other federal agencies.
Trump’s first week in office sees flurry of anti-LGBTQ executive actions
State Department directive pauses most US foreign aid spending
Capital Pride board member resigns, takes role as Trump’s acting Sec’y of Labor
Va. Senate committee tables three anti-transgender bills
Historic Oscar showing for ‘Emilia Pérez’ stirs controversy
Trump-Vance administration removes LGBTQ, HIV resources from government websites
Capital Pride board member resigns, takes role as Trump’s acting Sec’y of Labor
Va. Senate approves resolution to repeal marriage amendment
Meta’s policy changes ‘putting us back in the dark ages’
Trump executive order bans passports with ‘X’ gender markers
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District of Columbia1 day agoCapital Pride board member resigns, takes role as Trump’s acting Sec’y of Labor
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