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HISTORIC: Oral arguments heard in DOMA challenge

First time appeals court has considered case to overturn anti-gay law

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BOSTON — Oral arguments in a landmark legal proceeding challenging the Defense of Marriage Act unfolded Wednesday, marking the first time an appeals court has heard a challenge to the anti-gay federal law.

Lawyers squared off over the constitutionality of DOMA, amid discussion about whether the law fails a rational basis standard of scrutiny or interferes with a state’s rights under the Tenth Amendment.

Stuart Delery, who’s gay and the Justice Department’s acting assistant attorney general for the civil division, surprised many when he said the Obama administration wouldn’t defend DOMA on any basis, including under rational basis review.

Last year, the Obama administration said it would no longer defend DOMA in court, on the basis that President Obama had determined that the anti-gay law fails heightened scrutiny because it discriminates against gay couples.

Asked by Judge Juan Torruella whether the administration has a position on the rational basis test for the law, Delery replied, “We don’t.”

Delery’s position is significant because U.S. District Judge Joseph Tauro in 2010 ruled in favor of plaintiffs on the basis that DOMA didn’t pass the rational basis standard review, or a rational means to a legitimate governmental end. Judges on the First Circuit will have to decide whether to affirm or overrule this decision.

Two cases challenging the constitutionality of DOMA are before the First Circuit: Gill v. Office of Personnel Management, filed by Gay & Lesbian Advocates & Defenders, and Commonwealth of Massachusetts v. Department of Health & Human Services, filed by Massachusetts Attorney General Martha Coakley.

The three-judge panel hearing the cases is made up of Chief Judge Sandra Lynch as well as Torruella and Judge Michael Boudin. Lynch was appointed by a Democrat, former President Bill Clinton, while Torruella was appointed by former President Ronald Reagan and Boudin was appointed by former President George H.W. Bush.

Despite the administration’s position on rational basis review stated during the hearing, Delery said heightened scrutiny, or examining the law on the assumption that it’s discriminatory toward a group of people, is the appropriate way to handle DOMA because Congress passed DOMA in 1996 out of animus toward gay people.

Delery maintained that the name “DOMA” itself indicates that the anti-gay law was intended to discriminate against LGBT families.

“It was a defense against something, and that something was same-sex couples,” Delery said.

But the administration wasn’t willing to accept all arguments against DOMA. Delery said the administration doesn’t share the view that DOMA is unconstitutional on the basis that it interferes with a state’s Tenth Amendment right to regulate marriage, saying “that’s where we disagree” with the lawsuit.

Delery said Congress has the authority to define federal programs — even those related to marriage, where states traditionally have had jurisdiction on who can and cannot marry.

Defending DOMA in court was Paul Clement, a former U.S. solicitor general. After the Obama administration declared it would no longer defend DOMA, House Speaker John Boehner hired Clement to advocate for DOMA on behalf of the Bipartisan Legal Advisory Group, which voted along party lines to take up defense of the law.

Kicking off the arguments, Clement said the Obama administration is free to change its opinion on whether DOMA would pass a rational basis test, but nonetheless the administration has previously argued in a legal brief that DOMA shouldn’t be struck down on this standard.

“It’s certainly open to the president and the attorney general to change their position, and to say that heightened scrutiny should apply, but that doesn’t make their prior submission go away, and it doesn’t make the arguments in their about why there are rational bases — in addition to some that we’ve covered in our brief — to support the statute,” Clement said.

Clement offered many reasons why DOMA should be upheld — among them was an assertion that opposite-sex marriages advance governmental interests because they can produce “unplanned offspring” unlike same-sex couples.

Additionally, Clement said DOMA isn’t an attempt to “override a state’s definition” of marriage, but merely allows the federal government to “preserve the status quo” as states began legalizing same-sex marriages in 1996 to keep benefits from federal programs, like Social Security, flowing only to opposite-sex married couples as they had in the past.

But Delery blasted the notion that procreation is a necessary component for any marriage — whether the union is opposite-sex or same-sex — saying straight couples can marry even if they don’t want and can’t have children.

“On the flip side, there are many children — hundreds of thousands, I think is the best estimate — who are being raised by same-sex parents in this country, and DOMA has the effect of denying those children the stability and protection that many of the federal benefits that we’re talking about in these cases would provide,” Delery said.

Significant discussion related to heightened scrutiny was focused on the case of Cook v. Gates, a challenge to “Don’t Ask, Don’t Tell” in which the First Circuit ruled that sexual orientation shouldn’t be considered a suspect class. Clement argued that the First Circuit is bound by this precedent not to apply heightened scrutiny to laws affecting gay people. But attorneys opposed to DOMA said this case shouldn’t be applied to the anti-gay law because courts traditionally grant the military a high level of deference.

Mary Bonauto, GLAD’s civil rights project director, represented her organization during the hearing and said the law violates equal protection under the Constitution regardless of whether heightened scrutiny or rational basis review is applied to the anti-gay law.

“To this day, the federal government defers to state marital determinations where marital status is a factor for federal protections,” Bonauto said. “But for DOMA, same-sex couples who began marrying here eight years ago like our plaintiffs would have been included in those federal laws, but DOMA’s precise point was to prevent that conclusion and created an across the board exclusion.”

Massachusetts Assistant Attorney General Maura Healey argued on behalf of Massachusetts, saying that DOMA violates the state’s right under the Tenth Amendment to regulate marriage. She said an end to DOMA would return the federal government to “what it always has done” by recognizing state authority on which couples should be able to marry.

In her conclusion, Healey drew on the lifting of “Don’t Ask, Don’t Tell” and its implications for gay troops as a reason why the court should overturn DOMA.

“I’ll take you to our state veterans cemeteries because here the operations of DOMA really revives the concept of separate but equal,” Healy said. “In this day and age, when gay people can now go serve in the military, fight for our country and even die, unlike other married service members, they can’t be buried with their spouse on state land in our veterans cemetery. Instead, Massachusetts is essentially required to build on the next hillside over a cemetery for those veterans. We think that’s wrong.”

The panel has no set time to make a ruling in the cases, but advocates are hoping for a speedy decision. Once a decision is reached, it can be appealed either to the full First Circuit or the U.S. Supreme Court.

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Florida

Fla. Senate passes ‘Anti-Diversity’ bill that could repeal local LGBTQ protections

Bipartisan coalition urges Florida House to reject ‘extremism’ measure

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The Florida Capitol (Washington Blade photo by Yariel Valdés González)

The Florida Senate on March 4 voted 25-11 to approve an “Anti-Diversity in Local Government” bill that critics have called a sweeping and extreme measure that, among other things, could repeal local LGBTQ rights protections.

According to Equality Florida, a statewide LGBTQ advocacy organization, if approved by the Florida House of Representatives and signed by Republican Gov. Ron DeSantis, the bill “would ban, repeal, and defund any local government programming, policy, or activity that provides ‘preferential treatment or special benefits’ or is designed or implemented’ with respect to race, color, sex, ethnicity, sexual orientation, or gender identity.”

In a March 4 statement, Equality Florda added that the bill would also threaten city and county officials with removal from office “for activities vaguely labeled as DEI,” with only limited exceptions.

The Florida House was scheduled to vote on the bill on Monday, March 9, with opponents hopeful that a broad coalition of both Democratic and Republican lawmakers would secure enough votes to defeat the bill.

“Once again, Gov. DeSantis and Florida lawmakers are advancing one of the most sweeping and extreme bills in the country — this time threatening decades of local progress supporting diverse communities, including the LGBTQ community,” said Equality Florida Senior Political Director Joe Saunders. “This legislation is a sledgehammer aimed at cities and counties that recognize and address the diversity of the people they serve,” he said.

Among the LGBTQ organizations that could be adversely impacted by the bill is the highly acclaimed Stonewall National Museum, Archives and Library located in Fort Lauderdale.

Robert Kesten, the Stonewall organization’s president and CEO, told the Washington Blade the organization receives some funding from Broward County, in which Fort Lauderdale is located, and the city of Fort Lauderdale has provided support by purchasing tables at some of the museum’s fundraising events.

“Based on this legislation, hose things would be gone,” he said. “We also are based in a government building. So, we don’t know what potential side effects that could have.” He noted that the building in question is owned by Broward County and leased by Fort Lauderdale, with the bill’s vaguely worded provision making it unclear whether Stonewall would be forced to leave its building.

“It’s unknown, and we’re really in unchartered waters,” he said.

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13 HIV/AIDS activists arrested on Capitol Hill

Protesters demanded full PEPFAR funding

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(Washington Blade photo by Michael Key)

U.S. Capitol Police on Thursday arrested 13 HIV/AIDS activists in the Cannon House Office Building Rotunda.

The activists — members of Housing Works, Health GAP, and the Treatment Action Group — joined former PEPFAR staffers in demanding full funding of the program that President George W. Bush created in 2003. They chanted “AIDS cuts kill, PEPFAR now!” and unfurled banners from the Rotunda’s second floor that read “Trump and (Office of Management and Budget Director Russell) Vought kill people with AIDS worldwide,” “Over 200,000 deaths since January 2025,” and “Hands off PEPFAR” before their arrest.

(Washington Blade video by Michael K. Lavers)

This protest is the latest against the Trump-Vance administration’s HIV/AIDS policies since it took office.

Secretary of State Marco Rubio on Jan. 28, 2025, issued a waiver that allowed PEPFAR and other “life-saving humanitarian assistance” programs to continue to operate during a freeze on nearly all U.S. foreign aid spending. HIV/AIDS service providers around the world with whom the Washington Blade has spoken say PEPFAR cuts and the loss of funding from the U.S. Agency for International Development, which officially closed on July 1, 2025, has severely impacted their work.

The State Department last September announced PEPFAR will distribute lenacapavir in countries with high prevalence rates. Zambia is among the nations in which the breakthrough HIV prevention drug has arrived.

The New York Times last summer reported Vought “apportioned” only $2.9 billion of $6 billion that Congress set aside for PEPFAR for fiscal year 2025. (PEPFAR in the coming fiscal year will use funds allocated in fiscal year 2024.)

Bipartisan opposition in the U.S. Senate prompted the Trump-Vance administration last July withdraw a proposal to cut $400 million from PEPFAR’s budget. Vought on Aug. 29, 2025, said he would use a “pocket rescission” to cancel $4.9 billion for HIV/AIDS prevention and global health programs and other foreign aid assistance initiatives that Congress had already approved.

The White House in January announced an expansion of the global gag rule to ban U.S. foreign aid for groups that promote “gender ideology.” President Ronald Reagan in 1985 implemented the original regulation, also known as the “Mexico City” policy, which bans U.S. foreign aid for groups that support abortion and/or offer abortion-related services. The Council for Global Equality and other groups say the expanded rule will adversely impact HIV prevention efforts around the world.

A press release that Housing Works and Health GAP issued on Thursday notes more than $977 million “in appropriated PEPFAR funding for HIV prevention and treatment was unspent by the end of fiscal year (FY) 2025 — triple amount unspent at the end of FY 2024.”

“Activists predict this backlog will worsen rapidly in FY 2026 unless Congress immediately reasserts its Constitutionally-mandated oversight authority,” notes the press release.

The press release also indicates funding for the Centers for Disease Control and Prevention’s PEPFAR programs “will run out” by April 1 because “only 45 percent of their FY26 funding has been transferred from the State Department.

“Unless funding is transferred immediately, CDC’s global HIV programs across sub-Saharan Africa, Asia and the Caribbean will grind to a halt,” notes the press release.

The activists demanded Trump, Vought, Rubio, and Congress do the following:

  • Activists are calling for full obligation of appropriated PEPFAR funds and rejection of growing political interference in global and domestic HIV programs 
  • Immediately release already-appropriated, unobligated PEPFAR funds 
  • Break the blackout on PEPFAR data, so Congress and people with HIV know how funding is being spent and can program based on data  
  • Activists are calling for full obligation of appropriated PEPFAR funds and rejection of growing political interference in global and domestic HIV programs.

“PEPFAR has saved more than 26 million lives and changed the trajectory of an epidemic,” said Housing Works CEO Charles King. “However, the Trump administration’s decision, over the objection of Republicans in Congress, to freeze PEPFAR funding has caused decades of progress to come undone and has been a death sentence for people with HIV relying on life-saving treatment. The U.S. must immediately restore PEPFAR funding and regain our standing in the global fight against HIV.”

King is among the activists who were arrested.

(Washington Blade video by Michael K. Lavers)

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Texas

Talarico beats Crockett in Texas primary

Pro-LGBTQ seminarian hopes to turn seat blue

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Texas state Rep. James Talarico (Screen capture via James Talarico/YouTube)

Texas state Rep. James Talarico won a hard-fought primary Tuesday to become the state’s Democratic nominee for U.S. Senate, defeating U.S. Rep. Jasmine Crockett in one of the year’s most closely watched and competitive Democratic contests.

Talarico, a Presbyterian seminarian and three-term lawmaker from Round Rock, was declared the winner by the Associated Press early Wednesday morning after a closely tracked vote count that drew national attention.

“Tonight, the people of our state gave this country a little bit of hope,” Talarico told the AP. “And a little bit of hope is a dangerous thing.”

With 52.8% of the vote to Crockett’s 45.9%, Talarico secured the nomination outright, avoiding a runoff and capping months of sharp contrasts between the two candidates over strategy, messaging, and how best to compete statewide in Texas. Democrats hope the competitive primary — and the relatively narrow margin — signals growing momentum in a state that has not elected a Democrat to the U.S. Senate since 1988.

Talarico has long expressed support for the LGBTQ community, a position he highlights prominently on his campaign website. Under the “Issues” section, he directly addresses assumptions that might arise from his faith and background as a seminarian in a deeply conservative state.

“My faith in Jesus leads me to reject Christian Nationalism and commit myself to the project of democracy,” his website reads. “Because that’s the promise of America: a democracy where every person and every family — regardless of religion, race, gender, sexual orientation, or any other difference between us — can truly be free and live up to their full potential.”

Crockett struck a conciliatory tone following her defeat, emphasizing party unity ahead of November.

“This morning I called James and congratulated him on becoming the Senate nominee,” Crockett told Politico. “Texas is primed to turn blue and we must remain united because this is bigger than any one person. This is about the future of all 30 million Texans and getting America back on track.”

Talarico also drew national attention earlier in the race when “Late Show” host Stephen Colbert said he was initially unable to air an interview with the state legislator due to potential FCC concerns involving CBS. The episode sparked a broader political debate.

Brendan Carr, chair of the Federal Communications Commission, appointed by President Donald Trump, told reporters the controversy was a “hoax,” though he also acknowledged Talarico’s ability to harness the moment to build support as an underdog candidate. The interview was later released online and garnered millions of views, boosting Talarico’s national profile.

In November, Talarico will face the winner of the Republican primary between incumbent Sen. John Cornyn and Texas Attorney General Ken Paxton, who have been locked in a bruising GOP contest. Rep. Wesley Hunt was also in the Republican primary field. The GOP race is expected to head to a May runoff.

In a joint statement, Senate Minority Leader Chuck Schumer and Democratic Senatorial Campaign Committee Chair Kirsten Gillibrand praised Talarico’s victory and framed him as a candidate capable of broad appeal.

“As an eighth-generation Texan, former middle school teacher, and Presbyterian seminarian, James will be a fighter for Texans from all walks of life and of all political stripes,” they said. “In November, Texans will elect a champion for working people: James Talarico.”

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