News
Once again, marriage equality inches closer to Supreme Court
At least four appeals courts set to consider issue this spring

David Boies and Ted Olson are leading the VIrginia lawsuit heading to the U.S. Supreme Court (Washington Blade photo by Michael Key).
Not even a year has passed since the U.S. Supreme Court issued its landmark decisions against the Defense of Marriage Act and California’s Proposition 8, but a number of cases are already lining up that would enable the high court to make a nationwide ruling in favor of marriage equality.
At least four appellate courts are set to consider the issue this spring amid five district court decisions in favor of marriage equality in Utah, Oklahoma, Ohio, Kentucky and Virginia. Once the appellate courts make their decisions, they will likely be appealed this year to the Supreme Court, which would give justices the opportunity to make a final decision in 2015.
Although the Ohio ruling was limited to death certificates for married gay couples and the Kentucky ruling only provided recognition of out-of-state same-sex marriages, each of the rulings handed down since the DOMA decision were in favor of marriage equality. And in each ruling, justices invoked the decision against DOMA as part of their reasoning for determining state constitutional amendments against same-sex marriage violated the Constitution.
U.S. District Judge John Heyburn, an appointee of former President George H.W. Bush, noted last week in his decision that the words of the DOMA decision by U.S. Associate Justice Anthony Kennedy compels him to rule against Kentucky’s marriage laws.
“Ultimately, the focus of the Court’s attention must be upon Justice Kennedy’s majority opinion in Windsor,” Heyburn said. “While Justice Kennedy did not address our specific issue, he did address many others closely related. His reasoning about the legitimacy of laws excluding recognition of same-sex marriages is instructive. For the reasons that follow, the Court concludes that Kentucky’s laws are unconstitutional.”
Ted Olson, the Republican half of the legal duo arguing against Virginia’s ban on same-sex marriage, during a conference call Friday noted the consistency with which district courts have struck down anti-gay marriage amendments in the aftermath of the DOMA decision.
“Federal courts are consistently, regularly now, affirming the right of gay and lesbian citizens to be a part of the population of the rest of our citizens with equal rights to the fundamental right of marriage,” Olson said.
The cases against same-sex marriage bans in Utah and Oklahoma are the furthest advanced of all the lawsuits seeking marriage equality. They’re before the U.S. Tenth Circuit Court of Appeals in Denver, where oral arguments are scheduled in Utah case for April 10 and the Oklahoma case for April 17. The National Center for Lesbian Rights has joined the law firm of Magleby & Greenwood, P.C., as counsel in the Utah case.
Just behind that lawsuit is the case seeking marriage equality in Nevada filed by Lambda Legal known as Sevcik v. Sandoval. After Nevada Attorney General Catherine Cortez Masto declared her intent to withdraw her brief in favor of the marriage ban, the U.S. Ninth Circuit Court of Appeals last week acceded to her request and pledged to proceed with the lawsuit on an expedited basis, although no date has been set for oral arguments.
The Ohio case has already been appealed to the U.S. Sixth Circuit Court of Appeals, which is also the destination of the Kentucky lawsuit. These cases are also in their early stages at the appellate level, and schedule hasn’t been determined.
And the court ruling against Virginia’s ban on same-sex marriage, the latest to come down from a federal court, will be headed to the U.S. Fourth Circuit of Appeals. Although Virginia Attorney General Mark Herring isn’t defending the ban against same-sex marriage in court, Olson said he sees no standing issue in the case and because county clerks are participating in the lawsuit, the state continues to enforce the law.
But according to Lambda Legal, a total of 52 marriage equality lawsuits are pending in 27 states, and any of the cases at district court level could soon join those at the appellate level.
A judge will likely render a decision soon in the other lawsuit seeking marriage equality in Virginia, which was filed by the American Civil Liberties Union and Lambda Legal. A judge in Michigan has set a trial for that state’s constitutional ban on same-sex marriage on Feb. 25, just as a trial has been set in the Pennsylvania case for June 9.
Given the sheer number of cases making their way through the courts, David Boies, the Democratic half of the legal duo in the Virginia lawsuit, said the Supreme Court would have no shortage of cases from which to choose by the time it begins its term in the fall.
“I think they will all get to the Supreme Court at about the same time,” Boies said. “The Supreme Court can decide to take them all and consolidate them, the Supreme Court can take one or more of the cases, but not all of then. I think that is something that will be determined by the Supreme Court, and, to some extent, by the timing of the court of appeals decision.”
It’s technically possible for the Supreme Court to take up this issue this term once those cases are appealed, which would mean a nationwide ruling by June.
Jon Davidson, legal director for Lambda Legal, nonetheless said it “seems extraordinarily unlikely” the litigation would play out in that way.
“Even if an appellate decision in one of these cases were issued by May, a certiorari petition likely would not get filed until the summer, and the Supreme Court wouldn’t act on that until October,” Davidson said. “It does not have to grant cert on the first, or, even any of these cases. Even if it does, there likely wouldn’t be a decision until the spring of 2015.”
One issue to watch as these cases make their way up is whether courts apply heightened scrutiny, or a greater assumption a law is unconstitutional, to their decisions on the marriage bans. Such a determination would designate gay people with a “quasi-suspect classification” and establish precedent making other laws related to sexual orientation less likely to stand up in court.
When it ruled on the DOMA case last year, the U.S. Second Circuit Court of Appeals already set a precedent for heightened scrutiny for laws related to sexual orientation, but every state in that jurisdiction — New York, Vermont and Connecticut — already has marriage equality.
More recently, the U.S. Ninth Circuit Court of Appeals applied heightened scrutiny in its decision for Smith Kline v. Abbott Laboratories, which determined that jurors cannot be excluded from a trial because of sexual orientation.
Because of the application of heightened scrutiny in that case, the Nevada attorney general stopped defending her state’s marriage ban. Further, expectations are high that courts in Oregon and Arizona, which lie within that jurisdiction, will strike down bans in those states.
It was speculated the Supreme Court took up the Edith Windsor’s challenge to DOMA as opposed to others because the Second Circuit applied heightened scrutiny on that decision, although the high court never explicitly addressed the issue of heightened scrutiny in its ultimate decision. Eyes will be on the Supreme Court to see if it will take up the Ninth Circuit marriage case among others to resolve the issue of heightened scrutiny in the next go-around with marriage equality.
Doug NeJaime, who’s gay and a law professor at University of California, Irvine, nonetheless said he doesn’t think the Supreme Court has interest in resolving this issue for laws related to sexual orientation.
“The Supreme Court in Windsor didn’t explicitly reach this question, even though the lower court had based its decision on heightened scrutiny,” NeJaime said. “Given that, it doesn’t seem the Court is particularly interested in resolving that question, and I don’t think it will do much to persuade the court to take or not take a case.”
Another question is the extent to which the Obama administration will participate in the pending lawsuits. The Justice Department helped litigate against DOMA as party in the lawsuit and assisted in the lawsuit against Prop 8 as a friend of the court, although in the latter case the administration filed a brief and took part in oral arguments only when the litigation reached the Supreme Court.
A number of LGBT advocates have said they’d welcome participation from the Obama administration in the marriage equality cases without making a full-throated call for assistance. On Friday, White House Press Secretary Jay Carney wouldn’t make a prediction on whether the administration will take part and deferred comment to the Justice Department, which hasn’t responded to the Blade’s request to comment.
The opportunity for the Justice Department to file a brief in the Nevada case before the Ninth Circuit has already passed, but another opportunity will come soon. The deadline for filing a friend-of-the-court brief before the Tenth Circuit in the Utah case is March 4.
Erik Olvera, spokesperson for the National Center for Lesbian Rights, echoed the sense of other advocates on the issue, saying a friend-of-the-court brief from the Obama administration would be “welcome” in the Utah case.
“We always welcome the Obama administration to express its views in cases concerning civil rights protected by the U.S. Constitution,” Olvera said.
United Kingdom
Queen Camilla meets with JK Rowling
Edinburgh meeting took place on last day of Pride month
Queen Camilla on Tuesday met with JK Rowling.
The Royal Family on X said the meeting took place at Palace of Holyroodhouse in Edinburgh. The post included a picture of Camilla and Rowling together.
“With a shared passion for books and a deep commitment to children reading for pleasure, The queen and author JK Rowling have met at the Palace of Holyroodhouse in Edinburgh,” it reads. “Her Majesty and Ms. Rowling discussed the importance of ensuring that young people have access to books and the vital part reading plays in opening doors for future generations.”
📕 With a shared passion for books and a deep commitment to children reading for pleasure, The Queen and author J.K. Rowling have met at the Palace of Holyroodhouse in Edinburgh.
Her Majesty and Ms Rowling discussed the importance of ensuring that young people have access to… pic.twitter.com/Yx1Xy6olqC
— The Royal Family (@RoyalFamily) June 30, 2026
Rowling over the last decade has emerged as a vocal opponent of transgender rights. Her meeting with Camilla took place on the last day of Pride month.
Delaware
Delaware approves amendment protecting same-sex marriage
Measure must pass second vote in next year’s session
The Delaware General Assembly passed Senate Substitute 2 for Senate Bill 100 on the last day of the legislative session on Tuesday after being rescinded last week.
Senate Substitute 2 for Senate Bill 100 (SB-100) passed with 28 ‘yes’ votes, meeting the two-thirds threshold required for the bill to pass. Tuesday was the last day of the 153rd General Assembly.
The amendment would enshrine the right to same-sex and interracial marriage in the Delaware Constitution.
SB-100 was rescinded last week after it did not receive enough votes to pass. Democrats were short by three votes, with two Democratic members missing from the vote.
Rep. Josue Ortega (D-03) voted ‘no’ on SB-100 and Rep. Medinah Anton-Wilson (D-27) did not vote. However, both members voted ‘yes’ for Senate Substitute 2 for SB-100 on Tuesday.
Prime sponsor of SB 100, Rep. Claire Snyder-Hall (D-14), made the technical decision to change her vote last week from a ‘yes’ to a ‘no’ at the last minute to keep the bill alive.
Additionally, Republican Assemblyman Michael Smith (R-22) joined the Democrats with a ‘yes’ vote after voting ‘no’ on SB-100 last week.
In order for SB 100 to be enshrined into the state Constitution, it must be passed by two consecutive General Assemblies. Thus, the amendment will not be officially added to the Constitution unless it passes in the 154th General Assembly next year.
Rep. Snyder-Hall introduced the measure earlier this week.
“Just one week ago, we failed to pass this legislation. We failed the people of Delaware. But today, on the final day of the legislative session, the 153rd General Assembly affirmed that every Delawarean has the fundamental right to marry the person they love, regardless of race or gender,” said Snyder-Hall.
“Thank you to my colleagues for recognizing that the right to marry is a right worthy of protection and for voting yes on this important constitutional amendment.”
National
ACLU says trans athletes ruling is narrower than many believe
‘Narrow decision focused on the unique context of sports’
The Supreme Court’s decision Tuesday to uphold state laws barring transgender girls from competing on girls’ school sports teams represents a setback for transgender rights, but attorneys who argued the case say the ruling is considerably narrower than many initial reactions suggested.
Shortly after the decision was released, attorneys with the American Civil Liberties Union — which represented the plaintiffs in the case — held a press call to explain what they described as the limited scope of the Court’s opinion. While the ruling allows states to exclude transgender girls from girls’ school sports teams, they said it stops well short of creating a nationwide ban or dismantling broader legal protections for transgender people.
Joshua Block, senior counsel with the ACLU’s LGBTQ & HIV Project, said the majority intentionally confined its analysis to school athletics.
“[The majority] issued a narrow decision focused specifically on the unique context of sports. It didn’t issue a broader decision saying that Title IX in general didn’t protect transgender students. It didn’t say that other states couldn’t make a different policy choice and allow transgender girls to participate with cisgender girls, and it didn’t issue a sweeping ruling saying that under the Constitution it’s perfectly fine to discriminate based on transgender status.”
Block said one of the opinion’s most significant takeaways is that it leaves decisions about transgender participation in school sports largely in the hands of states.
“It leaves the rest of the legal rights of transgender people where the court found them.”
He stressed that the ruling authorizes states to adopt restrictions but does not require them to do so.
“It’s very important to emphasize that this isn’t a national mandate to ban trans athletes everywhere. It’s a fight that’s going to continue state by state, school by school … it really says that a state may discriminate, not that they must discriminate. States, schools, and athletic associations should be taking every step to ensure that athletic opportunities exist for transgender girls.”
Beyond athletics, Block said the opinion’s most important legal consequence may lie in its treatment of the Equal Protection Clause.
“What the court said is that even applying that heightened standard, we’re going to establish what’s effectively a new rule of the Equal Protection Clause, saying that you can’t bring this sort of as-applied challenge to a law that is valid for most people.”
Even so, he argued that the Court repeatedly framed transgender participation in sports as a policy issue for state governments rather than a constitutional mandate.
“Over and over and over again it talks about how states may exclude transgender girls, not that they must, and over and over and over again it says that this is a policy question that should be decided by the people in their different communities and their representatives.”
Block also rejected the idea that the ruling endorses the Trump administration’s broader efforts to restrict transgender rights.
“I have no doubt that the Trump administration will try to declare victory and say that this decision supports the lawless policies they’re pursuing, but I think anyone reading the decision can see otherwise.”
The White House nonetheless celebrated the decision, calling it a victory that would “protect women and girls.”
“The Court’s decision is a landmark victory for common sense, biological reality, and for the millions of women and girls who deserve a level playing field. By upholding laws protecting female athletic competition, the Court confirmed that states may preserve the fairness, safety, and equal opportunities that Title IX was enacted to guarantee.”
Medical researchers and LGBTQ advocates dispute the administration’s characterization of the evidence. A 2021 study published in the Journal of Sports Medicine found no scientific evidence for supporting these laws that categorically ban transgender women from participating in women’s sports.
Critics have also argued that enforcement of such laws could create new risks for athletes. Researchers have warned that sex-verification requirements may expose students to invasive examinations and discrimination.
A 2016 USA Today investigation found that at least 368 young gymnasts reported experiencing sexual abuse over a 20-year period. More than 100 coaches and gymnastics officials were accused of abuse, yet USA Gymnastics failed to track predatory coaches, allowing many to continue working with children. LGBTQ advocates argue that requiring athletes to undergo genital inspections or other forms of sex verification could place young athletes at even greater risk.
Advocacy organizations said the decision, while limited legally, will have significant real-world consequences for transgender youth.
Chris Mosier, a transgender athlete and board member of Point of Pride, said the ruling extends beyond sports.
“The Supreme Court’s decision today isn’t driven by fairness or dignity in sports. It’s an attack on our community’s right to live freely and authentically in every part of our lives. Young people, regardless of whether they’re cis or trans, deserve the joy of sports: to build friendships, to move their bodies and have fun on the field. To every trans athlete out there: you have a community standing behind you. No politician or law can take away your joy or power. We will get through this as our community has always done: together.”
Brian K. Bond, CEO of PFLAG National, emphasized that states remain free to adopt inclusive policies despite the Court’s decision.
“The Court rules best when it listens to the needs of marginalized people: trans people belong, on and off the field. While we celebrate the Court’s decision to uphold the Fourteenth Amendment and affirm that every person born in the United States is a citizen, the Court today added an asterisk to allow discrimination against transgender student athletes. Our country has been here before, and frankly, you would think this Court would have learned.”
“For PFLAG families, today’s decision in BPJ means that transgender athletes can continue to be affirmed for who they are in places where the law allows – and invigorates our LGBTQ+ and allied community to expand those protections. The parents, families, allies and LGBTQ+ people of PFLAG will continue to advocate for our trans loved ones to have the freedom to be themselves, everywhere. Trans people belong, and deserve to have access to the benefits of sport like everyone else.”
Allen Morris, policy director at the National LGBTQ Task Force, called the decision “devastating” but noted that it does not establish a nationwide sports ban.
“Today’s decision is devastating and the impact to clear. While this is not a nationwide ban on transgender participation in sports, the Court has given states a legal pathway to attempt to discriminate against trans individuals from full participation in school sports and all aspects of life.”
“This ruling is not just about sports: it’s about valuing and protecting the safety, security and constitutional rights of transgender people. By allowing states to draw a categorical line based on “biological sex,” the majority has chosen deference to exclusion and political beliefs over transgender students’ lived realities. There is already a dangerous rise in state-based violence growing across the country, and we’re overcoming this issue at each turn.”
Melanie Willingham-Jaggers, CEO of GLSEN, said the decision sends a broader message about transgender students’ place in schools.
“We are deeply disappointed by the outcome of this decision. This ruling represents another significant setback for transgender youth across the country, limiting their ability to fully engage in school life. Exclusion from these spaces shapes not only athletic access, but the broader message about who should be valued and included in our schools and societal ecosystem.”
“School sports are much more than competition. They are about belonging, forming a community, and the opportunity to grow and thrive alongside peers. Preventing youth from taking part in everyday activities undermines these fundamental values. We continue to see efforts to regulate discrimination under the guise of fairness, despite the lack of evidence that inclusive policies harm women’s sports. Access to these experiences is critical to students’ well-being and development.”
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