Opinions
Supreme Court considers taking marriage cases
‘We are better people than what these laws represent’

(Washington Blade file photo by Michael Key)
The United States Supreme Court is scheduled to discuss seven petitions from five different states today urging the Court to decide the constitutionality of state laws excluding same-sex couples from marriage on a nationwide basis. The Supreme Court has complete discretion over whether or not to take a case. And no one knows if the Court will decide whether to take any of the cases at this time or defer its decision until a future conference this fall. Indeed, the Court will have a lot to cover at its first conference with 53 petitions in other cases on its schedule as well. However, we could learn possibly as early as Tuesday whether the Court will take up the issue of the freedom to marry nationwide this term, with a substantive, definitive decision likely in June 2015.
The momentum toward marriage equality in the courts has accelerated at breakneck speed in the just over a year since the Supreme Court’s landmark decision in United States v. Windsor invalidated Section 3 of the misnamed “Defense of Marriage Act,” a statute that prohibited the federal government from recognizing the marriages of same-sex couples validly performed in states with marriage equality. Since Windsor, 27 federal courts have found state bans to be unconstitutional, with only one lower federal court upholding such a ban. Significantly, all four federal appellate decisions, from which the seven petitions to the Supreme Court come, favor equality. Judges ruling for the freedom to marry include appointees of Presidents Carter, Reagan, G.H.W. Bush, Clinton, G.W. Bush and Obama. Federal District Judge Richard Young of Indiana described in his ruling the winning streak as a phenomenon “never” before “witnessed … throughout the federal court system ….” Similarly, 13 state courts have ruled in favor of marriage equality, with only one opposed.
The petitions before the Supreme Court arise out of federal appeals court decisions striking down five states’ marriage bans: Indiana (7th Circuit), Oklahoma (10th Circuit), Utah (10th Circuit), Virginia (4th Circuit), and Wisconsin (7th Circuit). All of the cases present the issue of whether or not a state may prohibit same-sex couples from marrying. However, the cases differ as well, and the justices likely will be considering these differences in determining which case or cases to take. Attorneys for same-sex couples in each of the cases have argued the particular circumstances of their individual cases make them desirable for review.
One difference in the cases is that the Oklahoma case raises only the issue of whether a state may ban same-sex couples from marrying under its state laws, while the other states’ cases also involve challenges to whether a state must recognize the marriages of same-sex couples validly married in other states. If the Supreme Court were to strike down state marriage bans nationwide, the Court would not need to decide if and when one state must recognize marriages performed in other states. Alternatively, if the Court declined to decide the issue nationwide or upheld state marriage bans, the issue of recognition of out of state marriages could be very important.
The various states’ laws at issue in the petitions also differ. For instance, Wisconsin permits same-sex couples to enter into domestic partnerships, affording them limited legal rights, while the other states with petitions before the Court do not. The wording of the marriage bans and the history of the political campaigns to pass them vary from state to state. Procedural histories of the cases differ as well. For instance, in Virginia, the Attorney General, representing the state defendant agrees that the ban is unconstitutional, and local county clerks are defending the state ban. In the other states, the state has uniformly defended the bans. The attorneys in each case differ, too, and include lawyers from groups who have been advocating for LGBT equality for decades, such as the National Center for Lesbian Rights, Lambda Legal, Gay and Lesbian Advocates and Defenders, and the ALCU.
The legal bases for striking down the bans also differ between the various federal appellate decisions before the Court. The appellate courts in the Oklahoma, Utah, and Virginia cases invalidated those state bans on the grounds that that they violated same-sex couples’ “fundamental right to marry,” while the appellate court in the Indiana and Wisconsin cases struck down those states’ bans on the grounds that laws that discriminate on the basis of sexual orientation are entitled to elevated scrutiny under the Constitution. Windsor held that DOMA violated the Constitution’s guarantees of both liberty and equality. Both issues, and very possibly whether the bans constitute unlawful sex discrimination, will doubtlessly be argued before the Court regardless of which case or cases it takes. However, the Justices may consider the logic or rationale of one or more of the appellate court decisions particularly useful for review.
Two additional federal appellate circuits will likely weigh in this fall as well. The Sixth Circuit heard cases arising out of marriage bans in Kentucky, Michigan, Ohio, and Tennessee in early August, and the Ninth Circuit heard cases from Idaho and Nevada in early September. From relevant circuit court precedent and the questions and comments the judges made at oral argument, most observers believe the Ninth Circuit will very likely rule in favor of equality, but the outcome of the Sixth Circuit cases is much harder to predict.
In remarks last week at the University of Minnesota, Justice Ruth Bader Ginsburg fueled speculation that the Court might wait to determine whether or not to take a case until the Sixth Circuit rules. She stated that there would be “no need for [the Supreme Court] to rush” if the Sixth Circuit ruled in favor of the freedom to marry, as all the other circuits who have addressed the issue since Windsor have. However, she said that a Sixth Circuit ruling against equality would create “some urgency” for the Court to step in. The Supreme Court often takes cases to resolve disputes among the circuits.
Further, the Supreme Court will take a case if four of the nine justices vote to hear it. The Supreme Court has stayed decisions in the Fourth, Seventh, and Tenth Circuits from taking effect until final resolution of the cases. If the Sixth and Ninth Circuits were also to rule in favor of equality, most observers believe it unlikely that the four justices who dissented in Windsor would simply let all the petitions be dismissed by voting to deny review — effectively permitting marriage equality in 20 additional states located in those circuits. But if the Supreme Court held the petitions until a circuit court ruled against the freedom to marry, many thousands of LGBT Americans could have to wait even longer for a decision. Regardless of how the Sixth Circuit rules, the issue of marriage equality is, in fact, “urgent,” for LGBT Americans, many of whom have been together for decades without legal recognition and protection.
Many of us would love to be a proverbial “fly on the wall” at the justices’ conference chamber, but we will of course have to wait until the Court makes public its decisions from the conference either later this week or on Oct. 6, the official beginning of the new term. Federal District Judge John E. Jones III, a George W. Bush appointee, wrote in his opinion, invalidating Pennsylvania’s marriage ban: “We are better people than what these laws represent, and it is time to discard them into the ash heap of history.” That time cannot come too soon.
John Lewis is legal and policy director for Marriage Equality USA.
Opinions
Gloria Steinem’s life of substance and consequence
Iconic activist never stopped working to make life better for women
Gloria Steinem was an icon, a feminist, a woman of substance and consequence. A rare person who made a difference her entire life; sometimes quietly, sometimes by making noise. She was an incredibly beautiful woman, inside and out.
I heard of Gloria Steinem and admired her for all she was doing. But that was from a distance. I read about her, and saw her on TV. It was 1963 when Steinem wrote and published her undercover Playboy Bunny exposé, “A Bunny’s Tale,” about her going undercover at New York’s Playboy Club. Her account revealed the physical toll, exploitative conditions, and pervasive sexism faced by the women employed there, challenging the magazine’s image of empowerment.
It was 1972 when I first met her in person. That first meeting happened while I was campaigning for Bella Abzug (D-N.Y.) at a street rally. I said “Hello, Ms. Steinem,” and she said “It’s OK to call me Gloria.” I was honored to do so.
Gloria was there to support her friend. Bella had been through a grueling primary against Bill Ryan, after being redistricted out of her seat. She lost, but then Bill died of cancer before the election, and Bella was named the Democratic candidate in the general election for New York’s 20th congressional district. When Bella won that race, I went to work for her full time. It gave me the chance to meet Gloria again a number of times after that, once even with Bella at her apartment. While she was one of the many famous people I met while working for Bella, she was different. She wasn’t Hollywood. She began her career as a reporter, and worked hard for all she believed in. She was a true activist. That was what she saw herself as. She could say she came by the activism gene from her paternal grandmother, Pauline Perlmutter Steinem who Wikipedia reported, “chaired the educational committee of the National Woman Suffrage Association and was a delegate to the 1908 International Council of Women. Also, the first woman to be elected to the Toledo Board of Education and a leader in the movement for vocational education. She helped rescue many members of her family from the Holocaust.”
So yes, in many ways, activism was in Gloria’s genes. She was the one who told me it was OK to call myself a ‘feminist’. That it isn’t only women who can call themselves that, but also men who believed and fought for full social, economic, and political equality of the sexes. She helped me to understand I was brought up by a feminist. My mom, though she never called herself that, was one by dint of how she lived her life, and fought for others.
Gloria never stopped working to make life better for women, and to make sure other women joined her in her activism. In 1969, she co-founded Ms. Magazine. Then in 1971, with Bella Abzug, Betty Friedan and Shirley Chisholm, she founded the National Women’s Political Caucus, which provided training and support for women seeking elected and appointed office. Then in the same year she co-founded the Women’s Action Alliance, which until 1997 supported a network of feminist activists and worked to advance feminist causes and legislation.
Gloria would hold other women to task if they didn’t speak out, even at difficult times, but always with love. In 1986, Bella’s husband Martin died at the young age of 69. We were at the funeral home the night before the funeral, and Bella was sitting with some of us, and saying she didn’t know what she would do without Martin. It had been a true love affair. She was saying things like she didn’t even know where the checkbook was, what their rent was, etc., because Martin handled all that. Well Gloria overheard this and came over and said to Bella, “Don’t you dare say that in public, women look up to you as a feminist, as independent, you can’t say that.” And we all laughed, even Bella, as did Gloria, but she was serious.
Then in the 1990s Gloria helped to establish what she called ‘Take Our Daughters to Work Day.’ She did this to try to have young girls learn about future career opportunities. But her work wasn’t done and in 2005, along with Jane Fonda and Robin Morgan, she co-founded the Women’s Media Center. It is an organization that “works to make women visible and powerful in the media.”
The last time I saw Gloria was at the opening night of “Gloria: A Life,” at Theatre J in D.C. She was 88, as beautiful, and sharp as ever, having just come back from a speaking engagement in some far-off country.
Gloria, the world will miss you, RIP.
Peter Rosenstein is a longtime LGBTQ rights and Democratic Party activist.
Commentary
Anti-science, anti-LGBTQ movements go hand in hand
HHS under RFK Jr. has blocked gender-affirming care for youth
A newborn baby died after contracting measles in Pennsylvania last month, and, as if it wasn’t enough grief for his parents, anti-vax activists are trying to track down and harass his family. Apparently, Gov. Josh Shapiro tangled with Robert F. Kennedy Jr. over his “inaccurate and misleading claims.”
On Aug. 26, RFK Jr., the secretary of the U.S. Department of Health and Human Services, declared that the deaths could be fabricated. We live in peculiar times, when it is government officials, not freaks on the internet, who are spreading conspiracy theories. The new spread of measles in the United States since Donald Trump came to power is one of the most shameful parts of the story of modern American politics, and the tragedy of parents who lost their baby because more and more people refused to vaccinate may seem absolutely unrelated to LGBTQ rights, but actually, there is a pretty solid connection.
Because RFK Jr., the same man who was fighting vaccination, promoted the false idea that vaccines caused autism, and even curated the anti-vaccine organization Children’s Health Defense before going into politics, is also a known opponent of transgender rights. Under his “leadership,” gender-affirming care for trans minors was banned, and there were also created new healthcare guidelines recognizing only two genders.
All around the globe, there is a weird correlation between anti-LGBTQ — particularly anti-trans — ideas and anti-science movements. And it should be clearer to the general public. People who are speaking against LGBTQ rights are not just threatening minorities. They are a danger to everyone.
The Trump-Vance administration is an iconic example of such tendencies.
Trump himself is a known critic of modern scientific studies — for example, believing in the same anti-vax conspiracies that Kennedy promoted, and showing obvious skepticism that global warming exists, despite all the evidence that has been shown by climatologists. And he is also a man who used trans people as boogeymen. Under his command, trans people were kicked out of the military. And even worse, recently he made an extremely chilling statement about the 2026 midterm elections, urging voters to “pretend I’m on the ballot” and vote for Republicans, and while discussing what he says is at stake, he said that if Republicans win, “transgenderism” will “end.” This is an offensive statement at best and genocidal at worst.
And, of course, I think everyone remembers the Department of Government Efficiency (DOGE), which was led by infamous billionaire Elon Musk, who announced to the world that he would destroy the “woke mind virus” that killed his child just because his trans daughter, Vivian Wilson, well, is happy to be a trans person.
DOGE is known not just for cancelling academic research around LGBTQ studies and gender studies. No, this agency abruptly canceled and froze thousands of federal science, research, and health grants, attacking such vital health programs as cancer research, vaccination research, and diabetes research, among others. As you can see, they are not just attacking people who are “affected” by the “mind” virus — they are dangerous to everyone, even if most of the public standing of Musk was around his anti-trans politics and he tried to present himself as a pro-science, pro-progress man by supporting the space industry.
An even more vivid example is the so-called Dark Enlightenment movement.
This extremely reactionary political movement was born in the late 2000s, and originally grew from very democratical classical liberal ideas. Until it became anti-democratic itself. And also often It was created by American software engineer Curtis Yarvin (writing under the pseudonym Mencius Moldbug) and expanded by British philosopher Nick Land. The movement is popular among some Silicon Valley businessmen, and got support from PayPal founder Peter Thiel, and one of their main ideas is that modernity is bad. They are basically obscurantists, who see modern universities as part of “the Cathedral” — a system that, in their opinion, promotes equality and modern science that society doesn’t need. Of course, the movement’s followers are mostly anti-LGBTQ rights, and, as you can see, anti-queerness once again go hand in hand with obscurantism. Unfortunately, the movement got the support of extremely prominent politicians, including U.S. Vice President JD Vance.
In his speech from 2021, Vance proved to be an obscurantist when he claimed that universities are the enemy. He is also a known homophobe and transphobe.
So, why are anti-vaxxers, people who oppose modern scientific studies, and people who hate universities more likely to be queerphobic? Why do the same people who are defending their transphobia by showing that they support common sense actually often show zero such sense when it comes to protecting themselves and their children from measles or decreasing the chances of getting cancer?
We don’t have any statistics or studies that show that all obscurantists are queerphobic, but around the globe, the same dynamic is visible.
In Russian anti-LGBTQ censorship, books about animal biology and zoology have been censored because the censors saw “LGBT propaganda” in them. The famous pro-Putin philosopher Alexander Dugin, who is extremely anti-queer, also speaks up against modernity itself.
In Taliban’s Afghanistan, modern science and LGBTQ rights are attacked at the same time.
Even in the UK, Reform UK is known as the most anti-trans and anti-queer party, and they are facing widespread criticism from scientists and medical experts for promoting climate change denial and anti-vaccine ideas. It doesn’t mean that LGBTQ supporters never believe in conspiracy theories or that progressive politicians always support science.
No, it just means that explicit anti-science and anti-LGBTQ statements often go hand in hand.
I think there are two reasons for this correlation.
First, LGBTQ people are real. You cannot deny that sex is not binary, gender and sex are different, and transition improves the quality of life of actual trans people. Or that same-sex relationships are natural, because even animals have same-sex sexual contacts. To deny it, you need an ideology or a conspiracy theory.
The second reason is that anti-scientific populism and anti-LGBTQ conspiracy theories are popular among the same category of people. It’s a “bundle” of ideas — a trend that conservative voters often adopt together. Studies also show that people who are likely to believe in one conspiracy theory are more likely to believe in another.
But the question is more broad. We don’t speak enough about the harm anti-scientific conspiracy theories and obscurantist politicians around the globe create for mankind in general. Not all people would suffer from a prohibition of hormone therapy, or attacks on same-sex marriage. But anti-global warming ideas, anti-vax advocates, and restrictions on modern research, especially medical research, are potentially dangerous to any human being.
And one of the best things LGBTQ activists could do is just show society that they are being used — that the same people who are stealing LGBTQ rights are also destroying medicine and the environment, and it’s a threat to their own traditional families and future of all kids no less than to queer people.
Opinions
Trans people need a politics of ordinary life
Seeking the freedom to stop explaining ourselves
For much of the modern transgender rights movement, our political vocabulary has understandably been a vocabulary of emergency. We talk about healthcare bans, bathroom restrictions, discrimination, violence, court decisions, and executive orders. We organize because something is being taken away, prohibited or threatened.
Those fights are necessary. But they cannot constitute our entire vision of transgender life.
The Williams Institute at UCLA estimates that approximately 2.8 million Americans ages 13 and older identify as transgender, including roughly 2.1 million adults. Transgender people are only about 0.8 percent of the adult population. Yet transgender Americans occupy an extraordinary amount of the country’s political attention.
Behind those political arguments are millions of people doing profoundly ordinary things.
We commute to work. We complain about rent. We walk our dogs. We sit in traffic. We buy groceries. We fall in love with people who sometimes disappoint them. We worry about our parents getting older. We try to make enough money to retire. We drink coffee before work and wonder what to make for dinner.
This ordinariness should be part of the political project.
For years, LGBTQ advocacy has emphasized visibility. Visibility was necessary because silence allowed discrimination to flourish. Americans needed to understand that gay and transgender people existed in their families, workplaces and communities.
But visibility is a means, not an end.
The endpoint of civil rights is not permanent visibility. It is freedom.
And freedom includes the freedom to stop explaining yourself.
There should be nothing remarkable about a transgender accountant preparing someone’s taxes, a transgender teacher grading papers, a transgender novelist writing a book that has absolutely nothing to do with gender, or a transgender retiree arguing with the homeowners association about somebody’s fence.
That sounds almost comically mundane. That is precisely the point.
For many transgender Americans, mundane life remains harder to obtain than it should be. The 2022 U.S. Transgender Survey, which collected responses from more than 92,000 people, found that 34 percent of respondents were experiencing poverty and 18 percent were unemployed. Eleven percent of respondents who had ever worked reported losing a job because of their gender identity or expression. Nearly 30 percent had experienced homelessness during their lives.
Those numbers tell us something important about what transgender politics should accomplish.
A successful movement cannot measure progress exclusively by representation in television shows, corporate Pride campaigns or the number of transgender politicians elected to office. It must also ask whether transgender people can build stable, boring lives.
Can you find a job?
Can you rent an apartment?
Can you go to the doctor without becoming a political subject?
Can you walk into a restaurant with your spouse without calculating whether everyone is staring at you?
Can you spend an afternoon thinking about something other than being transgender?
Even healthcare illustrates the distance between formal inclusion and ordinary dignity. A 2024 KFF analysis found that 33 percent of LGBT adults who had recently used healthcare reported being treated unfairly or disrespectfully by a healthcare provider, compared with 15 percent of non-LGBT adults. Thirty-nine percent said a negative healthcare experience had made them less likely to seek care.
Equality therefore cannot simply mean keeping a clinic open. It must mean being able to enter that clinic, receive competent treatment and leave without feeling that your identity has swallowed the entire encounter.
There is a broader political lesson here.
Transgender Americans have sometimes been transformed into abstractions by both sides of the culture war. To some conservatives, we are evidence of social decline. To some progressives, we become symbols of resistance. Neither description leaves much room for the complicated, frequently uninteresting reality of being a person.
Most people do not wake up every morning thinking about their demographic categories. They think about deadlines, relationships, bills, ambitions, annoyances and whether there is enough milk in the refrigerator.
Transgender people deserve that luxury too.
A politics of ordinary life would therefore defend transgender healthcare and civil rights vigorously while articulating something beyond defense. Its objective would be integration: transgender Americans participating in civic life without every interaction becoming a referendum on gender.
That means protecting employment and housing. It means making competent healthcare routine rather than exceptional. It means creating communities where transgender children can imagine futures that extend beyond surviving adolescence. And it means allowing transgender adults to become bankers, mechanics, professors, parents, entrepreneurs and retirees without expecting them to become activists simply because they are transgender.
There will always be people who choose activism. We need them. There will always be people who speak publicly about their transitions. Their testimony matters.
But there should also be room for the transgender person who wants none of that.
Civil rights movements succeed not merely when marginalized people become visible, but when their presence stops requiring explanation.
The most radical future I can imagine for transgender Americans is therefore surprisingly conventional: a country in which being transgender can become one fact among hundreds about a person rather than the organizing principle of a life.
Perhaps the ultimate measure of transgender equality will not be how frequently America talks about transgender people. It will be the day when it no longer has to.
Isaac Amend is a transgender man and writer based in D.C. In 2017, Isaac starred in National Geographic’s “Gender Revolution” documentary. He sits on the board of the LGBT Democrats of Virginia. His author’s portfolio is available at isaacamend.com and you can find him on Instagram at: @isaacamend.
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