National
What will the Tenth Circuit do with Utah marriages?
Don’t read too much into court decision to reject a stay: experts
It’s unclear what the Tenth Circuit will do over Utah same-sex marriages. (Image via wikimedia)
As celebrations continue in Utah following its surprise entry as a marriage equality state, one lingering question is whether the U.S. Tenth Circuit Court of Appeals will allow gay couples to continue to marry there.
The court will face two questions regarding the ruling by U.S. District Judge Robert Shelby that the state’s ban on same-sex marriage is unconstitutional. First, whether to institute a stay on Utah’s same-sex marriages as it considers the decision on appeal, and second, whether to overturn or uphold the district court decision.
Suzanne Goldberg, a lesbian and co-director of Columbia University’s Center for Gender & Sexuality Law, said Sunday the Tenth Circuit’s previous rejections of a stay are no indication it’ll decide the same way the next time around.
“I know the 10th circuit declined to issue a stay today, but that decision is consistent with standard procedure, which provides that the district court should rule on a stay request before the appellate court responds,” Goldberg said. “The decision does not tell us what the court will do if and when the stay request is properly presented.”
Appeals courts have made various decisions on whether to institute a stay on same-sex marriages as marriage equality litigation has advanced. The U.S. Ninth Circuit Court of Appeals issued a stay on same-sex marriages after it determined California’s Proposition 8 was unconstitutional. But the New Jersey State Supreme Court refused to stay a lower court’s ruling in favor of marriage equality, prompting New Jersey Gov. Chris Christie to drop his defense of the marriage ban.
State officials — Utah Gov. Gary Herbert and the Utah attorney general’s office — have repeatedly sought stays on the weddings, but have been rebuffed by both the district court and the Tenth Circuit. However, the appeals court allowed officials to refile yet again. The Tenth Circuit could make a decision on a stay at any time and is expected to do so soon, perhaps on Christmas Eve.
Brian Brown, president of the National Organization for Marriage, is calling on the Tenth Circuit to issue a stay on the same-sex marriages.
“This decision provokes a constitutional crisis,” Brown said. “Not only is it unlawful, it roils the body politic and does great damage to the people’s confidence in the judicial system itself as a lone federal judge attempts to usurp the sovereignty of the state. We call on the Tenth Circuit to grant an immediate stay so that our higher courts can carefully and thoughtfully consider the profoundly important issues raised by this case.”
In the event that the Tenth Circuit rejects a stay, state officials could take their request to the U.S. Supreme Court.
Rick Hasen, a professor of law and politics at University of California, Irvine, said via Twitter that the request would go to U.S. Associate Justice Sonia Sotomayor, who could refer the issue to the entire court.
Justice Sotyomayor would be first at #SCOTUS to get stay request in Utah gay marriage case http://t.co/FzTPUVRosu
— Rick Hasen (@rickhasen) December 23, 2013
Jon Davidson, legal director for Lambda Legal, said determining which way the Supreme Court will rule on a stay is difficult — even with the precedent of declaring Section 3 of the Defense of Marriage Act unconstitutional.
“Given that couples are now marrying in many other states without any harm to anyone, the Court might choose simply not to get involved at this point, but, as I’ve said, I can’t make any prediction at this point with any degree of confidence,” Davidson said.
Regardless of whether or not the court issues a stay, state officials — Gov. Gary Herbert and newly appointed Utah Attorney General Sean Reyes — have the right to automatic appeal, so the Tenth Circuit has no option but to take up the case on its merits.
The makeup of the U.S. Tenth Circuit Court of Appeals is split just about down the middle between judges appointed by Democrats and Republicans. Three were appointed by President Obama, one by President Clinton, one by President George H.W. Bush, and four by President George W. Bush, making for a 4/5 split of Democratic vs. Republican appointees. There are also two vacancies on the court.
Davidson nonetheless said the political affiliation of the president who appointed a judge doesn’t necessarily predict the way they will decide a case.
“Of course, who appointed a judge does not necessarily tell you how a judge would rule, as some appointees of Democratic presidents have been quite moderate or even, in some states, somewhat conservative, and a number of Republican judges throughout the country have ruled in favor of marriage equality,” Davidson said.
It’s also hard to predict which combination of judges will decide the Utah case. Just as two judges on the court have denied previous stay requests in the case, certain motions, including motions to stay, are randomly assigned to a rotating two-judge panel. In the event of a tie, those judges may request that a third judge be added to decide the matter.
The consistency of the Tenth Circuit stands in contrast to the U.S. Ninth Circuit of Appeals, which has a 27-15 split of Democratic vs. Republican appointees and has a reputation for being a liberal court. The court affirmed California’s Proposition 8 was unconstitutional on the basis that marriage rights for gay couples can’t be rescinded once initially offered, and upheld California’s law prohibiting widely discredited “ex-gay” conversion therapy for minors.
As far as previous rulings, as state officials have noted in their requests for a stay on Utah same-sex marriages, no judge in the Tenth Circuit — at the district or the appeals level — has ever issued an opinion on marriage equality besides Shelby. As the judge noted in his ruling, the Tenth Circuit had determined in 2008 that sexual orientation discrimination doesn’t merit heightened scrutiny, but Shelby said that doesn’t matter because Utah’s ban on same-sex marriage doesn’t pass rational basis review.
But there is precedent for pro-gay rulings in the Tenth Circuit. In 2007, the appeals court in the case of Finstuen v. Crutcher struck down under the Full Faith & Credit Clause an Oklahoma statute barring recognition of adoptions by same-sex couples finalized in another state.
The timing for when the Tenth Circuit will make a decision regarding the appeal also remains in question. As Columbia University’s Goldberg noted, the process can take about a year, but there’s no standard timeline.
“Usually it can take up to a year, or even more, for an appeal to be briefed, argued and decided,” Goldberg said. “In marriage cases, there is a compelling reason for courts to act more quickly because people are being actively denied their rights, but there are no strict rules on the timetable.”
Davidson said it will take at least three months before a briefing is completed in the Kitchen case, but it could be considerably longer if parties seek an extension. More time is needed for oral arguments and for judges to write their decisions.
“Sometimes the period between notice of appeal and decision can be as short as six months or so, and sometimes it can be a matter of years,” Davidson said.
Shelby’s ruling had the distinction of being the first ruling on a marriage ban as a result of a federal lawsuit following the Supreme Court decision against DOMA. While other courts in New Jersey and New Mexico instituted marriage equality following the high court decision, these lawsuits were in state court, not federal court.
However, it’s not the most advanced marriage equality lawsuit. The case against Nevada’s ban on same-sex marriage, Sevcik v. Sandoval, is pending before the U.S. Ninth Circuit Court of Appeals. It remains to be seen which of these two cases, or yet another, will be the first marriage equality lawsuit to reach the Supreme Court in the aftermath of the decisions this year.
However the Tenth Circuit decides, the decision from Shelby is expected to have an impact on other courts evaluating the issue of marriage equality.
Davidson said Lambda Legal submitted a copy of the ruling to the U.S. District Court for the Western District Court just before it allowed a lawsuit challenging a state ban on same-sex marriage in Virginia to proceed.
“Judge Shelby’s opinion is very persuasive, in my view, and I think it will be given significant consideration by other judges deciding these issues,” Davidson said.
New York
Men convicted of murdering two men in NYC gay bar drugging scheme sentenced
One of the victims, John Umberger, was D.C. political consultant
A New York judge on Wednesday sentenced three men convicted of killing a D.C. political consultant and another man who they targeted at gay bars in Manhattan.
NBC New York notes a jury in February convicted Jayqwan Hamilton, Jacob Barroso, and Robert DeMaio of murder, robbery, and conspiracy in relation to druggings and robberies that targeted gay bars in Manhattan from March 2021 to June 2022.
John Umberger, a 33-year-old political consultant from D.C., and Julio Ramirez, a 25-year-old social worker, died. Prosecutors said Hamilton, Barroso, and DeMaio targeted three other men at gay bars.
The jury convicted Hamilton and DeMaio of murdering Umberger. State Supreme Court Judge Felicia Mennin sentenced Hamilton and DeMaio to 40 years to life in prison.
Barroso, who was convicted of killing Ramirez, received a 20 years to life sentence.
National
Medical groups file lawsuit over Trump deletion of health information
Crucial datasets included LGBTQ, HIV resources
Nine private medical and public health advocacy organizations, including two from D.C., filed a lawsuit on May 20 in federal court in Seattle challenging what it calls the U.S. Department of Health and Human Services’s illegal deletion of dozens or more of its webpages containing health related information, including HIV information.
The lawsuit, filed in the United States District Court for the Western District of Washington, names as defendants Robert F. Kennedy Jr., secretary of the Department of Health and Human Services (HHS) and HHS itself, and several agencies operating under HHS and its directors, including the Centers for Disease Control and Prevention, the National Institutes of Health, and the Food and Drug Administration.
“This action challenges the widespread deletion of public health resources from federal agencies,” the lawsuit states. “Dozens (if not more) of taxpayer-funded webpages, databases, and other crucial resources have vanished since January 20, 2025, leaving doctors, nurses, researchers, and the public scrambling for information,” it says.
“These actions have undermined the longstanding, congressionally mandated regime; irreparably harmed Plaintiffs and others who rely on these federal resources; and put the nation’s public health infrastructure in unnecessary jeopardy,” the lawsuit continues.
It adds, “The removal of public health resources was apparently prompted by two recent executive orders – one focused on ‘gender ideology’ and the other targeting diversity, equity, and inclusion (‘DEI’) programs. Defendants implemented these executive orders in a haphazard manner that resulted in the deletion (inadvertent or otherwise) of health-related websites and databases, including information related to pregnancy risks, public health datasets, information about opioid-use disorder, and many other valuable resources.”
The lawsuit does not mention that it was President Donald Trump who issued the two executive orders in question.
A White House spokesperson couldn’t immediately be reached for comment on the lawsuit.
While not mentioning Trump by name, the lawsuit names as defendants in addition to HHS Secretary Robert Kennedy Jr., Matthew Buzzelli, acting director of the Centers for Disease Control and Prevention; Jay Bhattacharya, director of the National Institutes of Health; Martin Makary, commissioner of the Food and Drug Administration; Thomas Engels, administrator of the Health Resources and Services Administration; and Charles Ezell, acting director of the Office of Personnel Management.
The 44-page lawsuit complaint includes an addendum with a chart showing the titles or descriptions of 49 “affected resource” website pages that it says were deleted because of the executive orders. The chart shows that just four of the sites were restored after initially being deleted.
Of the 49 sites, 15 addressed LGBTQ-related health issues and six others addressed HIV issues, according to the chart.
“The unannounced and unprecedented deletion of these federal webpages and datasets came as a shock to the medical and scientific communities, which had come to rely on them to monitor and respond to disease outbreaks, assist physicians and other clinicians in daily care, and inform the public about a wide range of healthcare issues,” the lawsuit states.
“Health professionals, nonprofit organizations, and state and local authorities used the websites and datasets daily in care for their patients, to provide resources to their communities, and promote public health,” it says.
Jose Zuniga, president and CEO of the International Association of Providers of AIDS Care (IAPAC), one of the organizations that signed on as a plaintiff in the lawsuit, said in a statement that the deleted information from the HHS websites “includes essential information about LGBTQ+ health, gender and reproductive rights, clinical trial data, Mpox and other vaccine guidance and HIV prevention resources.”
Zuniga added, “IAPAC champions evidence-based, data-informed HIV responses and we reject ideologically driven efforts that undermine public health and erase marginalized communities.”
Lisa Amore, a spokesperson for Whitman-Walker Health, D.C.’s largest LGBTQ supportive health services provider, also expressed concern about the potential impact of the HHS website deletions.
“As the region’s leader in HIV care and prevention, Whitman-Walker Health relies on scientific data to help us drive our resources and measure our successes,” Amore said in response to a request for comment from the Washington Blade.
“The District of Columbia has made great strides in the fight against HIV,” Amore said. “But the removal of public facing information from the HHS website makes our collective work much harder and will set HIV care and prevention backward,” she said.
The lawsuit calls on the court to issue a declaratory judgement that the “deletion of public health webpages and resources is unlawful and invalid” and to issue a preliminary or permanent injunction ordering government officials named as defendants in the lawsuit “to restore the public health webpages and resources that have been deleted and to maintain their web domains in accordance with their statutory duties.”
It also calls on the court to require defendant government officials to “file a status report with the Court within twenty-four hours of entry of a preliminary injunction, and at regular intervals, thereafter, confirming compliance with these orders.”
The health organizations that joined the lawsuit as plaintiffs include the Washington State Medical Association, Washington State Nurses Association, Washington Chapter of the American Academy of Pediatrics, Academy Health, Association of Nurses in AIDS Care, Fast-Track Cities Institute, International Association of Providers of AIDS Care, National LGBT Cancer Network, and Vermont Medical Society.
The Fast-Track Cities Institute and International Association of Providers of AIDS Care are based in D.C.
U.S. Federal Courts
Federal judge scraps trans-inclusive workplace discrimination protections
Ruling appears to contradict US Supreme Court precedent
Judge Matthew Kacsmaryk of the U.S. District Court for the Northern District of Texas has struck down guidelines by the U.S. Equal Employment Opportunity Commission designed to protect against workplace harassment based on gender identity and sexual orientation.
The EEOC in April 2024 updated its guidelines to comply with the U.S. Supreme Court’s ruling in Bostock v. Clayton County (2020), which determined that discrimination against transgender people constituted sex-based discrimination as proscribed under Title VII of the Civil Rights Act of 1964.
To ensure compliance with the law, the agency recommended that employers honor their employees’ preferred pronouns while granting them access to bathrooms and allowing them to wear dress code-compliant clothing that aligns with their gender identities.
While the the guidelines are not legally binding, Kacsmaryk ruled that their issuance created “mandatory standards” exceeding the EEOC’s statutory authority that were “inconsistent with the text, history, and tradition of Title VII and recent Supreme Court precedent.”
“Title VII does not require employers or courts to blind themselves to the biological differences between men and women,” he wrote in the opinion.
The case, which was brought by the conservative think tank behind Project 2025, the Heritage Foundation, presents the greatest setback for LGBTQ inclusive workplace protections since President Donald Trump’s issuance of an executive order on the first day of his second term directing U.S. federal agencies to recognize only two genders as determined by birth sex.
Last month, top Democrats from both chambers of Congress reintroduced the Equality Act, which would codify LGBTQ-inclusive protections against discrimination into federal law, covering employment as well as areas like housing and jury service.
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Federal judge scraps trans-inclusive workplace discrimination protections
