National
BREAKING: Second Circuit latest to strike down DOMA
Anti-gay law ruled unconstitutional in 2-1 decision
The Second Circuit ruled that DOMA is unconstitutional against Edith Windsor‘s legal challenge against the law (Washington Blade file photo by Michael Key)
A federal appeals court has ruled the Defense of Marriage Act is unconstitutional in case filed by a New York widow who’s challenging the statute on the basis that it unfairly forced her to pay $363,000 in estate taxes.
In a 2-1 decision, the U.S. Second Circuit Court of Appeals ruled against Section 3 of DOMA on the basis that it violates equal protection under the Fifth Amendment of the U.S. Constitution.
The majority opinion came from Chief Judge Dennis Jacobs, who wrote the decision, and Judge Christopher Droney. Judge Chester Straub dissented by asserting DOMA is constitutional.
“DOMA’s classification of same-sex spouses was not substantially related to an important government interest,” the decision states. “Accordingly, we hold that Section 3 of DOMA violates equal protection and is therefore unconstitutional.”
The plaintiff in the lawsuit, which was filed by the American Civil Liberties Union, is 83-year-old lesbian Edith Windsor, who in 2009 had to pay $363,000 in estate taxes upon the death of her spouse, Thea Spyer, because DOMA prohibits the federal recognition of same-sex marriage.
In a statement, Windsor praised the Second Circuit for coming to the conclusion that DOMA is unconstitutional.
“This law violated the fundamental American principle of fairness that we all cherish,” Windsor said. “I know Thea would have been so proud to see how far we have come in our fight to be treated with dignity.”
The decision means seven federal courts — eight if a bankruptcy court ruling is included — have now determined DOMA is unconstitutional at a time when numerous cases challenging the anti-gay law are pending for consideration before the U.S. Supreme Court. The high court hasn’t yet determined whether it will take up the constitutionality of DOMA, but is likely to do so. The Second Circuit is also the second appeals court to strike down DOMA. The First Circuit ruled against the law in May.
The next step in the process is for House Republicans to appeal the decision either to the full Second Circuit or the Supreme Court, which has already been asked to take up the Windsor case along with several other DOMA cases. The high court will then decide the constitutionality of DOMA once and for all on a nationwide basis.
Susan Stenger, an appeals court attorney who’s handled LGBT rights cases for the Boston-based firm Burns & Levinson, said it’s unlikely DOMA proponents would pursue en banc review in the cases because so many other lawsuits against the anti-gay law are already pending before the Supreme Court.
“The fact that there’s a dissent [means] they might try en banc review, but also knowing that this will ultimately go to the Supreme Court, I would think they wouldn’t bother,” Stenger said. “Why waste time and resources when if an en banc changed anything, whomever lost would certainly appeal?”
Dennis, who was appointed by President George H.W. Bush, wrote the majority decision against DOMA even though he has reputation for being a conservative judge. Joining him was an Obama appointee, Droney. The dissenting judge, Straub, was appointed by former President Clinton.
In addition to ruling against DOMA, the judges determined the anti-gay law should be subject to heightened scrutiny, or a greater assumption that the law is unconstitutional. The Second Circuit is the first appeals court to determine that DOMA should be subject to this level of review.
Based on precedent the Supreme Court set in earlier court cases, the court offers four reasons — including the history of discrimination faced by LGBT people — as reasons why DOMA should be subject to heightened scrutiny.
“In this case, all four factors justify heightened scrutiny: A) homosexuals as a group have historically endured persecution and discrimination; B) homosexuality has no relation to aptitude or ability to contribute to society; C) homosexuals are a discernible group with non-obvious distinguishing characteristics, especially in the subset of those who enter same-sex marriages; and D) the class remains a politically weakened minority,” the decision states.
Douglas Nejaime, who’s gay and a law professor at Loyola Law School, called the Second Circuit’s decision to apply heightened scrutiny against DOMA “very significant” because it means the Supreme Court will have to weigh in on the matter in addition to the law itself.
“As a practical matter, this makes it even more difficult for the Supreme Court to avoid the question of heightened scrutiny,” NeJaime said. “If the Gill decision from the First Circuit was the only federal appellate decision striking down DOMA, the Court could have struck down DOMA — upholding that decision — without passing on the level-of-scrutiny question. But with the Second Circuit’s decision in Windsor, the Court is more likely to address heightened scrutiny.”
NeJaime added that as a result of the Second Circuit application of heightened scrutiny, courts are now more likely to find state marriage bans unconstitutional as well as anti-gay laws related parental rights and public employment discrimination.
Notably, the decision rejects an argument proposed by private attorney Paul Clement — who’s advocating on behalf of the anti-gay law for the House Republican-led Bipartisan Legal Advisory Group — that Windsor’s case should be sent to the New York Court of Appeals for certification because Spyer died at a time before New York legalized same-sex marriage.
The appeals court says certification is unnecessary because the New York Court of Appeals has expressed a disinclination to decide the question and because New York’s intermediate appellate courts are unanimous on the issue. At that time of Spyer’s death in 2009, Windsor’s marriage was recognized in New York by an executive order issued by then-Gov. David Paterson.
“Given the consistent view of these decisions, we see no need to seek guidance here,” the decision states. “Because Windsor’s marriage would have been recognized under New York law at the time of Spyer’s death, she has standing.”
The court also rejects an argument posed by Clement that the court should uphold DOMA because of precedent set by Baker v. Nelson, a 1972 case challenging Minnesota’s prohibition on same-sex marriage that the Supreme Court refused to hear for want of federal question.
Judges say Baker isn’t controlling because in the 40 years following the case there have been “manifold changes to the Supreme Court’s equal protection jurisprudence” and because the lawsuits are distinct: Baker was about same-sex marriage within a state while the Windsor is about a federal law.
“After all, Windsor and Spyer were actually married in this case, at least in the eye of New York, where they lived,” the decision states. “Other courts have likewise concluded that Baker does not control equal protection review of DOMA for these reasons.”
James Esseks, director of the ACLU LGBT Project, shared in the jubilation that the court’s reasoning led the judges to rule against the anti-gay law.
“Yet again, a federal court has found that it is completely unfair to treat married same-sex couples as though they’re legal strangers,” Esseks said. “Edie and Thea were there for each other in sickness and in health like any other married couple, and it’s unfair for the government to disregard both their marriage and the life they built together and treat them like second-class citizens.”
Rep. Jerrold Nadler (D-N.Y.), who was among the 144 House Democrats who signed a friend-of-the-court brief against DOMA in the Windsor case, also commended the judges for ruling in favor of a plaintiff who’s also his constituent.
“As the amicus brief I spearheaded in this case pointed out, and as the court agreed, there is no justification for denying Edie Windsor the same right as all other spouses to her full inheritance without paying a tax penalty,” Nadler said. “Edie lives in my congressional district, and was with her wife, Thea Spyer, for 44 years. The last thing she should have to worry about following the loss of her spouse is an unjust tax penalty imposed for no other reason than the fact that she and her wife were the same gender.”
In his dissenting opinion, Straub dissents in part and concurs in part, saying he disagrees with the majority opinion that DOMA is unconstitutional and the legislative approach is the appropriate course of action for those who want it lifted from the books.
“The Congress and the President formalized in DOMA, for federal purposes, the basic human condition of joining a man and a woman in a long-term relationship and the only one which is inherently capable of producing another generation of humanity,” Straub writes. “Whether that understanding is to continue is for the American people to decide via their choices in electing the Congress and the President. It is not for the Judiciary to search for new standards by which to negate a rational expression of the nation via the Congress.”
Stenger said she thinks the dissent will have value “to the people who disagree” with the majority opinion to justify their position, but otherwise have little impact.
“The Supreme Court obviously studies all the detail of a dissent in making its own decision, so it may find something in there persuasive, but technically it has no impact,” Stenger said. “It may just give food-for-thought to somebody who’s inclined to go in that direction.”
NOTE: This post has been edited and updated to include more information and reaction to the Second Circuit ruling.
Florida
Intersex teacher alleges Fla. school fired him over perceived trans identity
Shepard Scalf filed a complaint with Equal Employment Opportunity Commission
An intersex teacher in Florida who was fired is alleging in a new Equal Employment Opportunity Commission filing that he was terminated based on assumptions that he was transgender.
Shepard Scalf in the filing says he was assigned female at birth but identifies as male.
According to Monday’s filing with the EEOC, submitted on Scalf’s behalf by the American Civil Liberties Union, the American Civil Liberties Union of Florida, and the law firm of Chanfrau & Chanfrau P.L., the school district fired Scalf on the basis of his sex and the presumption that he is trans.
Scalf was hired for the 2025-2026 school year at Patriot Oaks Academy in the St. Johns County School District to teach language arts to 6th- and 7th-graders, after previously working in another Florida school district.
During the hiring process, Scalf submitted paperwork that disclosed he had been assigned female at birth. He was born with an intersex variation with XY chromosomes, and he lives as and presents as a man.
On Aug. 28, 2025, Patriot Oaks Academy Principal Drew Chiodo scheduled an emergency meeting with Scalf. The principal was directed to read a letter from the school district superintendent informing Scalf that he must either submit his resignation or be fired.
According to the ACLU, Scalf was provided with no legitimate reason for his termination and had not received any prior warnings or disciplinary actions. At the time of his termination, Chiodo told Scalf his work was “exemplary” and that Scalf had “met every expectation.”
“Receiving this ultimatum was confusing and overwhelming. Everything had been going so well — I couldn’t understand why this was happening,” Scalf said. “The start of a school year is always brimming with promise and excitement, and I was looking forward to continuing my teaching career at Patriot Oaks until I was cornered into resigning. It became clear to me that being fired had nothing to do with my qualifications or teaching — it was about who I am.”
According to the filing, Scalf received communications that the termination followed complaints from a parent about his gender identity. However, the filing also claims that his gender identity, sex assigned at birth, and intersex status were never mentioned in his classroom.
In a 2020 ruling, the U.S. Supreme Court in Bostock v. Clayton County found employment discrimination on the basis of actual or perceived sexual orientation or gender identity is a violation of Title VII of the Civil Rights Act of 1964.
The ACLU is claiming that under that ruling, Scalf’s rights under Title VII were violated.
“Six years ago, the Supreme Court held in Bostock v. Clayton County that employers cannot fire someone for being gay or transgender because doing so is discrimination because of sex,” said Shana Knizhnik, senior staff attorney with the ACLU’s LGBTQ & HIV Project, in a press release from the ACLU. “The same reasoning protects intersex people, who have long faced discrimination because their bodies and lives do not conform to narrow expectations about what a man or a woman is supposed to be. Mr. Scalf was an exemplary teacher, but despite his performance and qualifications, he was forced out of his job because he did not fit those expectations. As politicians and institutions increasingly seek to police sex and gender, intersex people are too often caught in the crossfire alongside transgender people — but federal civil rights law protects everyone from this kind of discrimination.”
Samantha Past, a staff attorney with the ACLU of Florida, stated in a press release that Florida’s public school system is increasingly hostile towards LGBTQ people.
“At a time when Florida’s public schools are increasingly targeted by disruptive state policies and in the midst of a teacher shortage crisis, St. Johns County School District chose to unlawfully oust a qualified and respected educator. Everyone deserves the opportunity to work and contribute to their community without fear of being targeted because of who they are. Mr. Scalf is no exception,” Past stated.
America 250
Washington Blade publishes ‘Queering America 250’
New magazine chronicles LGBTQ history and contributions to U.S. culture
The Washington Blade this week published a new glossy magazine, titled “Queering America 250,” a look back at the many contributions that LGBTQ people have made to the founding of the country through the present day.
From Colonial times to modern pop culture, the magazine aims to remind readers of some of the many ways queer people have influenced American life.
“As the country commemorates 250 years, we wanted to do our part to ensure LGBTQ contributions to America were not ignored or forgotten,” said Blade Editor Kevin Naff. “As this administration seeks to erase queer identities, it’s more important than ever that we speak up and remind the world that we have always been here and always will be.”
The magazine is divided into chapters addressing queer life in Colonial times, the early 20th century, the late 20th century, and the 21st century. There’s a story about D.C.’s role in LGBTQ visibility; a top 40 moments in queer pop culture piece; and a series of opinion pieces and photo pages from the Blade’s historic archive.
The magazine is free and available across the D.C. region during Pride. It’s also available online.
You can find the magazine here: Annie’s, As You Are, Bunker, Crush, DIK Bar, District Eagle, Green Lantern, Her Diner, Jane Jane, JR.’s, Icon, Kiki, Larry’s Lounge, Little Gay Pub, Nellie’s, Number Nine, Pitchers, Red Bear Brewing, Shakers, Sinners and Saints, Spark Social House, Fireplace, Thurst, Trade, Uproar, Whitman-Walker Health, Destination DC, Mayor’s Office of LGBTQ Affairs, DC Center, SMYAL, HRC, Bite the Fruit, 350 Bakery, Logan 14 Aveda Salon Spa, Vida Fitness U Street and Logan Circle, Freddie’s Beach Bar, Destination Tomorrow. The magazine is also available at D.C. and Northern Virginia libraries.
America 250
As we celebrate 250 years of America, let’s remember our elders
It’s important to acknowledge history and honor pioneering community members
Editor’s note: This is part of the “Queering America 250” LGBTQ history magazine published by the Washington Blade. The glossy magazine is free and available across the D.C. region during Pride.
You can find it here: Annie’s, As You Are, Bunker, Crush, DIK Bar, District Eagle, Green Lantern, Her Diner, Jane Jane, JR.’s, Icon, Kiki, Larry’s Lounge, Little Gay Pub, Nellie’s, Number Nine, Pitchers, Red Bear Brewing, Shakers, Sinners and Saints, Spark Social House, Fireplace, Thurst, Trade, Uproar, Whitman-Walker Health, Destination DC, Mayor’s Office of LGBTQ Affairs, DC Center, SMYAL, HRC, Bite the Fruit, 350 Bakery, Logan 14 Aveda Salon Spa, Vida Fitness U Street and Logan Circle, Freddie’s Beach Bar, Destination Tomorrow. The magazine is also available at D.C. and Northern Virginia libraries.
The United States does not have a monarchy. I do not mean to comment on whether or not we live under tyranny or despotism, or if people live under modern serfdom; I mention that to explain, likely to the chagrin of our current president, U.S. citizens are not rewarded for their accomplishments by becoming a Knight or a Dame.
We do, however, like our awards, including trophies from academies and medals from the executive or legislature. The aforementioned current president likes awards so very much that the U.S. Congress and an international sports association created new awards just to appease him, and the recent winner of the Nobel Peace Prize gifted hers. These incidents will likely be rendered as footnotes in history because of the sheer volume of lunacy we are enduring under this regime of idiocracy.
In entertainment, a coveted status is that of EGOT: the winning combination of receiving an Emmy, Grammy, Oscar, and Tony. I assert that not all EGOTs are equal. Some Emmys and Tonys are received merely by financing productions. Oscars and Grammys have been won because of sympathy for personal tragedy, the nominated veteran performer is considered overdue for a win, or a deceased nominee posthumously wins, as a final sendoff.
Not all awards are created equal. Some are considered prestigious, while others are less notable. As far as awards bestowed upon local entertainers, the Nation’s Capital has very few of the former. Given what I know about their processes, many are decided upon by small groups of often unremarkable people or flawed online procedures. It is not a meritocracy. Ultimately, receiving awards is about who knows you and who likes you. Even more unfortunate is that bias and bigotry play at least as much a part as loyalty or nepotism.
Winners of the Nobel and Pulitzer Prizes receive money, which is something some advocacy groups have done, and I wish more would do. As an outside observer, I find that the local awards for D.C. theater, television, and restaurants seem to have the most cachet. Some other awards that have a precise focus or have only a select few annual honorees are commendable, but many of the rest seem haphazard and disorganized, if not corrupt or simply irrelevant.
While most local awards fail to impress me, be it the categories, the trophies, the ceremonies, or the recipients themselves, I still want people to be recognized, so I nominate them. I point out who is often left out, such as DJs, who not only help to curate nightlife and culture but also enable these organizations to have successful events, including their award ceremonies and receptions.
Over the years, in many an awards nomination process, I have done my best to advocate for people, especially elders, whom I consider unsung heroes or under appreciated trailblazers. My focus is primarily Black LGBTQ people who are local or who hail from the region.
Consistently unacknowledged by local awards are people who are from here and have since gone on to achieve national or international acclaim. Merely from the perspective of production and promotion, and especially prestige, this seems like a missed opportunity.
There are the Black LGBTQ performers who are commonly known to be from this area: Grammy-winning musician and former Duke Ellington student Meshell Ndegeocello, comedian and former NSA employee Wanda Sykes, blues legend and former Fredericksburg science teacher Gaye Adegbalola, and recording artist and former D.C. nightclub performer Kevin Aviance.
There are several accomplished Black LGBTQ actors from this area, including Emmy winner and Duke Ellington graduate Samira Wiley, Helen Hayes Award winner and Howard University graduate Roz White, Emmy winner and graduate of Greenbelt’s Roosevelt High Tramell Tillman, “Noah’s Arc” cast member and Hyattsville native Doug Spearman, “Angel” cast member and former Bladensburg resident J. August Richards, and former “America’s Next Top Model” contestant-turned-actor and Prince George’s County native Isis King. Pioneering transgender actor and singer Sandra Caldwell was born and raised in Washington, D.C.
I also think of people who deserve posthumous recognition, including DJ and music producer Vjuan Allure, poet and D.C. government employee Venus Thrash, and Tony Washington, lead singer of the Motown vocal quintet Dynamic Superiors.
There are others in the performing arts, as well as authors, playwrights, journalists, and content creators, whose notable achievements seem to be unacknowledged locally. It appears one can be revered in certain D.C. circles, but once success is achieved beyond that, that person likely never receives a homecoming. It is reminiscent of U.S.-born showgirl and singer (and later war hero) Josephine Baker, who found success in France, and elsewhere around the world, but is less revered in the nation of her birth.
As some people celebrate 250 years of the United States, I hope we will all think about how we acknowledge history and honor our community members, especially our elders. In my opinion, we can do better. I think there are many people whose accomplishments, big or small, in various arenas, are overlooked. Furthermore, just as I find the flag-waving jingoism that purports itself as patriotism distasteful, I also think that lackluster ceremonies and overpriced trinkets are not the best ways to acknowledge community advocates and activists who particularly need financial support.
At least the aforementioned performers have received national acclaim. While I have not yet been successful in getting any of them honored by local organizations, I was able to acknowledge them here. I give you all your proverbial flowers. Congratulations on your success, and know that some of us see you and are proud of your success.
Zar is the mononynous community advocate, speechwriter, songwriter, and event organizer who founded Team Rayceen Productions in 2014.
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