National
HISTORIC: Oral arguments heard in DOMA challenge
First time appeals court has considered case to overturn anti-gay law
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.
State Department
Rubio mum on Hungary’s Pride ban
Lawmakers on April 30 urged secretary of state to condemn anti-LGBTQ bill, constitutional amendment
More than 20 members of Congress have urged Secretary of State Marco Rubio to publicly condemn a Hungarian law that bans Pride events.
California Congressman Mark Takano, a Democrat who co-chairs the Congressional Equality Caucus, and U.S. Rep. Bill Keating (D-Mass.), who is the ranking member on the House Foreign Affairs Committee’s Europe Subcommittee, spearheaded the letter that lawmakers sent to Rubio on April 30.
Hungarian lawmakers in March passed a bill that bans Pride events and allow authorities to use facial recognition technology to identify those who participate in them. MPs last month amended the Hungarian constitution to ban public LGBTQ events.
“As a NATO ally which hosts U.S. service members, we expect the Hungarian government to abide by certain values which underpin the historic U.S.-Hungary bilateral relationship,” reads the letter. “Unfortunately, this new legislation and constitutional amendment disproportionately and arbitrarily target sexual and gender minorities.”
Prime Minister Viktor Orbán’s government over the last decade has moved to curtail LGBTQ and intersex rights in Hungary.
A law that bans legal recognition of transgender and intersex people took effect in 2020. Hungarian MPs that year also effectively banned same-sex couples from adopting children and defined marriage in the constitution as between a man and a woman.
An anti-LGBTQ propaganda law took effect in 2021. The European Commission sued Hungary, which is a member of the European Union, over it.
MPs in 2023 approved the “snitch on your gay neighbor” bill that would have allowed Hungarians to anonymously report same-sex couples who are raising children. The Budapest Metropolitan Government Office in 2023 fined Lira Konyv, the country’s second-largest bookstore chain, 12 million forints ($33,733.67), for selling copies of British author Alice Oseman’s “Heartstopper.”
Former U.S. Ambassador to Hungary David Pressman, who is gay, participated in the Budapest Pride march in 2024 and 2023. Pressman was also a vocal critic of Hungary’s anti-LGBTQ crackdown.
“Along with years of democratic backsliding in Hungary, it flies in the face of those values and the passage of this legislation deserves quick and decisive criticism and action in response by the Department of State,” reads the letter, referring to the Pride ban and constitutional amendment against public LGBTQ events. “Therefore, we strongly urge you to publicly condemn this legislation and constitutional change which targets the LGBTQ community and undermines the rights of Hungarians to freedom of expression and peaceful assembly.”
U.S. Reps. Pramila Jayapal (D-Wash.), Sarah McBride (D-Del.), Jim Costa (D-Calif.), James McGovern (D-Mass.), Gerry Connolly (D-Va.), Summer Lee (D-Pa.), Joaquin Castro (D-Texas), Julie Johnson (D-Texas), Ami Bera (D-Calif.), Mark Pocan (D-Wis.), Lloyd Doggett (D-Texas), Becca Balint (D-Vt.), Gabe Amo (D-R.I.), Ted Lieu (D-Calif.), Robert Garcia (D-Calif.), Dina Titus (D-Nev.), Raja Krishnamoorthi (D-Ill.), Jan Schakowsky (D-Ill.) and Mike Quigley (D-Ill.) and Del. Eleanor Holmes Norton (D-D.C.) signed the letter alongside Takano and Keating.
A State Department spokesperson on Wednesday declined to comment.
Federal Government
HRC memo details threats to LGBTQ community in Trump budget
‘It’s a direct attack on LGBTQ+ lives’
A memo issued Monday by the Human Rights Campaign details threats to LGBTQ people from the “skinny” budget proposal issued by President Donald Trump on May 2.
HRC estimates the total cost of “funding cuts, program eliminations, and policy changes” impacting the community will exceed approximately $2.6 billion.
Matthew Rose, the organization’s senior public policy advocate, said in a statement that “This budget is more than cuts on a page—it’s a direct attack on LGBTQ+ lives.”
“Trump is taking away life-saving healthcare, support for LGBTQ-owned businesses, protections against hate crimes, and even housing help for people living with HIV,” he said. “Stripping away more than $2 billion in support sends one clear message: we don’t matter. But we’ve fought back before, and we’ll do it again—we’re not going anywhere.”
Proposed rollbacks or changes at the U.S. Department of Health and Human Services will target the Ryan White HIV/AIDS Program, other programs related to STI prevention, viral hepatitis, and HIV, initiatives housed under the Substance Abuse and Mental Health Services Administration, and research by the National Institutes of Health and Agency for Healthcare Research and Quality.
Other agencies whose work on behalf of LGBTQ populations would be jeopardized or eliminated under Trump’s budget include the U.S. Department of Housing and Urban Development, the U.S. Department of Justice, the U.S. Small Business Administration, and the U.S. Department of Education.
U.S. Supreme Court
Supreme Court allows Trump admin to enforce trans military ban
Litigation challenging the policy continues in the 9th Circuit
The U.S. Supreme Court on Tuesday allowed the Trump-Vance administration to enforce a ban on transgender personnel serving in the U.S. Armed Forces pending the outcome of litigation challenging the policy.
The brief order staying a March 27 preliminary injunction issued by the U.S. District Court for the Western District of Washington notes the dissents from liberal Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson.
On the first day of his second term, President Donald Trump issued an executive order requiring Secretary of Defense Pete Hegseth to effectuate a ban against transgender individuals, going further than efforts under his first administration — which did not target those currently serving.
The DoD’s Feb. 26 ban argued that “the medical, surgical, and mental health constraints on individuals who have a current diagnosis or history of, or exhibit symptoms with, gender dysphoria are incompatible with the high mental and physical standards necessary for military service.”
The case challenging the Pentagon’s policy is currently on appeal before the U.S. Court of Appeals for the Ninth Circuit. The lead plaintiff is U.S. Navy Commander Emily Shilling, who is joined in the litigation by other current transgender members of the armed forces, one transgender person who would like to join, and a nonprofit whose members either are transgender troops or would like to be.
Lambda Legal and the Human Rights Campaign Foundation, both representing the plaintiffs, issued a statement Tuesday in response to the Supreme Court’s decision:
“Today’s Supreme Court ruling is a devastating blow to transgender servicemembers who have demonstrated their capabilities and commitment to our nation’s defense.
“By allowing this discriminatory ban to take effect while our challenge continues, the Court has temporarily sanctioned a policy that has nothing to do with military readiness and everything to do with prejudice.
“Transgender individuals meet the same standards and demonstrate the same values as all who serve. We remain steadfast in our belief that this ban violates constitutional guarantees of equal protection and will ultimately be struck down.”
U.S. Solicitor General D. John Sauer noted that courts must show “substantial deference” to DoD decision making on military issues.
“The Supreme Court’s decision to allow the military ban to go into effect is devastating for the thousands of qualified transgender servicemembers who have met the standards and are serving honorably, putting their lives on the line for their country every single day,” said GLAD Law Senior Director of Transgender and Queer Rights Jennifer Levi. “Today’s decision only adds to the chaos and destruction caused by this administration. It’s not the end of the case, but the havoc it will wreak is devastating and irreparable. History will confirm the weight of the injustice done today.”
“The Court has upended the lives of thousands of servicemembers without even the decency of explaining why,” said NCLR Legal Director Shannon Minter. “As a result of this decision, reached without benefit of full briefing or argument, brave troops who have dedicated their lives to the service of our country will be targeted and forced into harsh administrative separation process usually reserved for misconduct. They have proven themselves time and time again and met the same standards as every other soldier, deploying in critical positions around the globe. This is a deeply sad day for our country.”
Levi and Minter are the lead attorneys in the first two transgender military ban cases to be heard in federal court, Talbott v. Trump and Ireland v. Hegseth.
U.S. Rep. Mark Takano (D-Calif.) issued a statement on behalf of the Congressional Equality Caucus, where he serves as chair.
“By lifting the lower court’s preliminary injunction and allowing Trump to enforce his trans troop ban as litigation continues, the Supreme Court is causing real harm to brave Americans who simply want to serve their nation in uniform.
“The difference between Donald Trump, a draft dodger, and the countless brave Americans serving their country who just happen to be trans couldn’t be starker. Let me be clear: Trump’s ban isn’t going to make our country safer—it will needlessly create gaps in critical chains of military command and actively undermine our national security.
“The Supreme Court was absolutely wrong to allow this ban to take effect. I hope that lower courts move swiftly so this ban can ultimately be struck down.”
SPARTA Pride also issued a statement:
“The Roberts Court’s decision staying the preliminary injunction will allow the Trump purge of transgender service members from the military to proceed.
“Transgender Americans have served openly, honorably, and effectively in the U.S. Armed Forces for nearly a decade. Thousands of transgender troops are currently serving, and are fully qualified for the positions in which they serve.
“Every court up to now has found that this order is unconstitutional. Nevertheless, the Roberts Court – without hearing any evidence or argument – decided to allow it to go forward. So while the case continues to be argued, thousands of trans troops will be purged from the Armed Forces.
“They will lose their jobs. They will lose their commands, their promotions, their training, pay and benefits, and time. Their units will lose key players; the mission will be disrupted. This is the very definition of irreparable harm.”
Imara Jones, CEO of TransLash Media, issued the following statement:
“The Supreme Court’s decision to uphold Trump’s ban on transgender soldiers in the military, even as the judicial process works its way through the overall question of service, signals that open discrimination against trans people is fair game across American society.
“It will allow the Trump Administration to further advance its larger goal of pushing trans people from mainstream society by discharging transgender military members who are currently serving their country, even at a time when the military has struggled recently to meet its recruiting goals.
“But even more than this, all of my reporting tells me that this is a further slide down the mountain towards authoritarianism. The hard truth is that governments with authoritarian ambitions have to separate citizens between who is worthy of protection and who’s not. Trans people are clearly in the later category. And this separation justifies the authoritarian quest for more and more power. This appears to be what we are witnessing here and targeting trans people in the military is just a means to an end.”
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