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.
U.S. Military/Pentagon
Pentagon expands testosterone screening as trans troops face hormone therapy restrictions
Defense Department says updated guidelines to be issued shortly
The Pentagon has announced that new clinical guidance will be released establishing mandatory testosterone deficiency screening for active-duty and reserve cisgender male service members ages 30 and older, advancing a policy that expands hormone-related care for cisgender troops.
The Defense Department said the existing clinical guidelines, which are not currently available on the Defense Health Agency’s website, are being updated and that the final guidance will be issued shortly.
The announcement comes amid a wave of anti-transgender policies from both the DoD and the Trump-Vance administration, which continue to prohibit trans men from receiving the same treatment.
Under the forthcoming guidance, men ages 30 and older will be forced to undergo testosterone blood tests as part of their medical care. Younger male service members will be tested if they request screening or if clinicians identify warning signs of low testosterone.
The new guidelines formalize a screening program Defense Secretary Pete Hegseth announced in July, when he said the Pentagon would begin testing service members to ensure that “you have the right testosterone levels to operate at your absolute best.”
“Taking care of your long-term health means ensuring you remain strong, resilient, and capable — not just for your next deployment, but for the rest of your life, so you can thrive long after you take off the uniform,” Hegseth said at the time.
The Defense Health Agency’s clinical guidance says the program is intended to address “hormonal and energy-availability issues.” Hegseth said in July that testosterone replacement therapy would remain voluntary for service members if treatment is recommended.
The Food and Drug Administration is also scheduled to hold a meeting later this month with experts to discuss the medical use of testosterone.
The Pentagon’s push to routinely test testosterone levels runs counter to current medical guidance, which generally recommends considering testosterone therapy only for men who have symptoms consistent with low testosterone and have documented low hormone levels on two separate blood tests.
Testosterone is a sex hormone naturally produced by people of all sexes. It plays a role in regulating muscle mass, bone density, and sex drive. Testosterone levels in men naturally decline with age and have been associated with symptoms including erectile dysfunction, low libido, mood changes and weight gain, although experts continue to debate when testosterone therapy is medically appropriate.
The policy has drawn scrutiny from LGBTQ advocates because the Pentagon and Hegseth have simultaneously cited hormone therapy as part of the rationale for removing trans service members from the military.
Under President Donald Trump’s 2025 executive order, “Prioritizing Military Excellence and Readiness,” the military has moved to bar trans people diagnosed with gender dysphoria from serving and has begun formal administrative separation proceedings against trans personnel.
The Pentagon continues to pursue implementation of the trans military ban as litigation over the policy proceeds. As a result, some trans service members have had their gender-affirming hormone therapy halted even as the Pentagon expands testosterone screening and potential treatment for cisgender service members.
SPARTA Pride, a nonpartisan nonprofit organization made up of trans service members, veterans and their allies, criticized the disparity to the Washington Blade when Hegseth first announced the screening program.
“If hormone therapy helps warfighters perform at their best, then it cannot simultaneously be used as evidence that transgender service members are unfit to serve,” said Kara Corcoran, executive director of SPARTA Pride. “The same class of evidence-based medical treatment cannot be characterized as readiness-enhancing for one group and readiness-destroying for another.”
On June 1, the U.S. Court of Appeals for the D.C. Circuit ruled that trans service members already serving in the military could continue to do so while allowing the armed services to continue refusing to enlist new trans recruits.
The Blade reached out to the Pentagon when the testosterone screening program was first announced in July, asking why cisgender service members could receive testosterone therapy while transgender service members could not. The Pentagon did not respond.
Switzerland
Swiss government backs nationwide conversion therapy ban
Several cantons have already prohibited widely discredited practice
The Swiss government has said it supports a nationwide ban on so-called conversion therapy.
The Swiss Broadcasting Corporation on its website notes the government officially announced its position in a report it published on Wednesday.
Neuchâtel in 2023 became the first Swiss canton to ban conversion therapy.
Lawmakers in Valais and Vaud have also prohibited the widely discredited practice in their respective cantons. Bern and Geneva are among the other cantons in which lawmakers have considered similar prohibitions.
The European Commission earlier this year said all European Union countries should ban conversion therapy.
Switzerland is not a member of the EU, but lawmakers in neighboring Germany in 2020 passed a law that prohibits conversion therapy for minors and for adults who have not consented to undergoing the widely discredited practice.
Several EU countries — Belgium, Cyprus, France, Malta, Norway, Portugal, and Spain — have banned conversion therapy outright.
The Dutch Senate in June approved a bill that would ban conversion therapy in the Netherlands. The lower house of the country’s parliament approved the measure in September 2025.
Greece in 2022 banned conversion therapy for minors.
2026 Midterm Elections
Markey’s primary win deemed success for LGBTQ activists
Mass. lawmaker champions transgender rights
U.S. Sen. Ed Markey (D-Mass.) clinched the Democratic seat for his reelection campaign in Massachusetts’s primary election on Tuesday.
Markey won the deep-blue state with 64.8 percent of the vote, according to NBC News, triumphing over Marine Corps combat veteran and Congressman Seth Moulton, who received 35.2 percent of the vote.
Massachusetts’s primary election, which determined which Democratic candidate will head to the polls to face off against the Republican challenger in November, is being considered a victory for LGBTQ-inclusive policy, as well as for a divisive pro-transgender rights candidate — both things Markey has become an outspoken champion of.
Markey has experience at multiple levels of government, from the state level, where he served three terms in the state House of Representatives, to his federal tenure, including 20 terms in the U.S. House of Representatives and is now serving his second term as a senator. He has become a fixture of a changing Democratic Party in one of the most consistently blue places in the U.S.
This primary — and much of the national discussion surrounding the Senate seat — focused a lot of campaigning power on fighting the growing sentiment, led mostly by Republicans, that the frustration many Americans feel lends itself to an anti-establishment and anti-incumbent attitude.
Markey ran his campaign using his past as a reflection of his commitment to constantly putting his best foot forward for Bay Staters — particularly with apprehension for issues younger and more progressive democrats have been righting for — including Green New Deal and “Medicare for All” while Moulton — who was also elected to federal office prior to this run — campaigned on being younger than Markey, arguing that he was not the same type of established politician.
Moulton also faced backlash for negative comments about trans athletes, sparking criticism for those who did want younger candidate but want for trans rights to be protected.
Markey’s track record of supporting the LGBTQ community is one of the most clear in federal politics, one that has garnered a “100 percent lifetime voting record” on the Human Rights Campaign’s PAC politician review scorecard.
That list of Markey’s actions includes being a cosponsor of the Equality Act, driving landmark legislation to ensure federal protections for LGBTQ Americans, and being one of the most vocal proponents for trans rights in the federal government — specifically in multiple appropriations bills and in the National Defense Authorization Act. He was also the lead sponsor of the Transgender Health Care Access Act and the Transgender Bill of Rights resolution.
Markey first introduced the Transgender Bill of Rights in the Senate in 2023, where it ultimately failed to be brought to law. He reintroduced the legislation this year once again. This was a direct response to the attitude pushed by many conservatives after 2021, when the push to minimize trans rights started to become a key part of their cause and has been constantly propped up by the Trump-Vance administration.
“Massachusetts needs a senator who stands up and fights back, a senator who never forgets who they are fighting for,” Markey said during his victory speech. “That has been the mission of my life, and it always will be.”
Following the calling of the primary, a slew of LGBTQ organizations rallied behind Markey, many pushing his past as an asset that puts his money where his mouth is through advocating for legislation specifically protecting the LGBTQ community.
Tyler Hack, the executive director of the Christopher Street Project, an organization dedicated to pushing for legal protections for trans americans, released a statement following Markey’s win. Hack argued that putting forward such a staunchly pro-trans candidate is a win for the community, especially after endorsing him earlier this year.
“Tonight, anti-trans politics lost. Massachusetts rejected the idea that attacking transgender people is a shortcut to political power. Voters chose a different path: one where equality is not negotiable, cruelty is not courage, and transgender people do not have to disappear for Democrats to succeed.”
The Human Rights Campaign also endorsed him as a candidate earlier this year and issued a statement via its president, Kelley Robinson.
“Ed Markey has spent decades fighting for LGBTQ+ equality, for working people, and for a more livable world,” Robinson said. “He knows why equality matters. He’s stood with us no matter what. We were proud to endorse him this year, and when a pro-equality majority takes back the Senate this fall, we will continue to count on him as a champion for our community.”
Markey is running for reelection against Republican John Deaton in November, where he is expected to win.
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