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.
National
Blade reporters reflect on covering Pulse massacre 10 years ago
Orlando stepped up to comfort and support its LGBTQ community
Friday marks 10 years since a gunman killed 49 people inside the Pulse nightclub in Orlando, Fla.
The massacre, which, at the time was the deadliest mass shooting in modern U.S. history, left the LGBTQ community in this country and around the world reeling. It also prompted renewed calls for gun control.
The OnePulse Foundation, which Pulse owner Barbara Poma founded after the massacre, raised upwards of $20 million for a memorial that never materialized.
The city of Orlando in 2023 purchased the Pulse property for $2 million. Crews earlier this year demolished the former nightclub. The city of Orlando has pledged $12 million for a permanent memorial that is scheduled to open in 2027.
Washington Blade Editor Kevin Naff and International News Editor Michael K. Lavers reported from Orlando in the days after the massacre. Here are their reflections a decade later.
Describe the scene when you arrived in Orlando. Where did you go first?
NAFF: Most mainstream reporters headed for the Pulse nightclub, but it was already roped off with police keeping bystanders at least a full city block away. Instead, I hurried to The Center, Orlando’s LGBTQ community center, downtown. I expected to find it locked down with tight security but instead the doors were flung open and everyone inside was busy at work. No tears, just dedicated staff and volunteers working the phones to secure visas and free plane tickets for relatives of the victims. The director gave me a tour and in the back storage room were pallets and pallets of bottled water stacked to the ceiling. When I asked what all the water was for, he said the city had issued a call for blood donations and the lines to donate were 1,500 deep in 100-degree heat. So The Center drove around to all the sites to deliver water to all those standing in line.
That scene was so inspiring and a testament to the strength and resiliency of the LGBTQ community. We’d seen tragedy before and knew how to respond.
LAVERS: I arrived in Orlando about 14 hours after the massacre took place. The city was shellshocked.
Equality Florida, the state’s LGBTQ advocacy group, and other organizations held a press conference at The Center shortly after my flight from D.C. landed. I drove there from the airport. Terry DeCarlo, who was The Center’s executive director at the time, along with then-Equality Florida Executive Director Nadine Smith and others spoke on behalf of a community that was reeling. The Center at the press conference handed out business cards that read, “You matter.” I had it in my wallet when I drove to a makeshift memorial that was a block from Pulse — the police had cordoned off the area immediately around the nightclub. A local resident who I interviewed told me that she did not know if her friends who were at Pulse when the gunman opened fire survived. Another person with whom I spoke shared a similar story.
A torrential downpour began shortly after I arrived. The storm was an apt metaphor for the raw emotion of that horrific day.
What’s your most prominent memory of covering the Pulse massacre?
NAFF: I was covering a vigil in downtown Orlando when then-Florida Gov. Rick Scott’s motorcade arrived unannounced. To that point, he had not addressed the LGBTQ angle and seemed to be downplaying the fact that this was an attack on our community. I hurried to the front row as he held an impromptu news conference. To my dismay, he took only three short questions from TV reporters then rushed away. I grabbed his communications director and insisted that Scott take a question from the LGBTQ media. She agreed and told me to wait next to the SUV. When Scott approached, I asked him, “What is your message to LGBTQ Floridians?”
To my surprise, he sputtered, stammered, and broke into tears before telling me, “This was an attack, what else can you say? This was an attack against the gays, an attack against Hispanics, an attack against our country, our nation and it’s disgusting. The biggest thing we do now is ask how to make sure this doesn’t happen again.”
It was his first public acknowledgment that the LGBTQ community was the target of the attack.
LAVERS: Two moments stand out for me.
The first moment is when then-President Barack Obama and then-Vice President Joe Biden traveled to Orlando on June 16, four days after the massacre. I was one of the reporters who the White House asked to be part of the local press pool. I was about 50 feet away from Obama and Biden when they placed bouquets with 49 flowers — one for each of the victims — at a makeshift memorial between City Hall and the Dr. Phillips Center for the Performing Arts in downtown Orlando. Obama in remarks he made to the press pool mentioned one of the gay victims who had once said, “We cannot be afraid.” The emotions of the last four days simply became too much, and I broke down. Another reporter who was part of the press pool who was standing next to me realized I had broken down. She put her hand on my back to console me.
The second moment came a few weeks later when I was in Puerto Rico to cover the community’s response to the massacre and to interview victims’ relatives. Orlando has a very large Puerto Rican community, and nearly half of those who died at Pulse were of Puerto Rican descent.
I drove to Caguas, a city that is roughly 20 miles south of San Juan, the island’s capital, on July 7, and interviewed Aida Velázquez in her small apartment. Her son, Frankie “Jimmy” de Jesús, died at Pulse. Aida talked about her son, and she showed me pictures of him. Jimmy also danced Jíbaro, a Puerto Rican folk dance. The interview took place less than a month after the massacre — Jimmy’s funeral took place in Caguas less than two weeks earlier.
I sat in my car after the interview and sobbed uncontrollably for nearly five minutes. Nothing can possibly prepare you for interviewing a mother who had just lost her child in the most horrific way possible.
How did the local community respond and what about their response gave you hope or inspiration?
NAFF: In addition to the staff at The Center working to assist victims and their families, everyday Orlando residents stepped up to help however they could. At the downtown vigils, straight mothers and fathers carried signs offering hugs to anyone who needed them. I encountered a group of young teenage males who approached a group of law enforcement officers and appeared to perform for them. When they finished, I asked what they were doing and they told me that they were straight friends who lived in Orlando and wanted to do something to help so they composed an uplifting rap song and walked around performing it for anyone who needed cheering up.
LAVERS: The way that Orlando rallied around the LGBTQ community was simply inspiring.
Imam Muhammad Musri, president of the Islamic Society of Central Florida, at a memorial service that took place at the Dr. Phillips Performing Arts Center on June 13 said his organization was “united as Americans when it comes to standing with the LGBT community and their rights to live freely and to practice their lives here.” This comment underscored the outpouring of support that Orlando showed its LGBTQ community after Pulse. It was also a call for the better angels among us to reject hate in all of its forms.
What surprised you most about the experience?
NAFF: I was most surprised — and moved — after talking to Rev. Debreita Taylor of Oasis Fellowship Ministries, an LGBTQ-affirming ministry.
“My message is love. Period. Love. Period. There’s nothing in the word of God that faith leaders can go to that teaches hate,” she told me. “Have faith and believe that evil and hate can be eradicated one person at a time. How do you treat someone? How do you embrace someone who treats you wrong? We all bleed, laugh, hope and have great victories and major defeats. And so, you know me, even if you don’t know my name — I’m you.”
LAVERS: It admittedly took me quite a while to fully process what I experienced in Orlando — I was focused on doing my job as a reporter, which was to cover the story, and, most importantly, show the human impact of what had happened. I suppose one surprising aspect of the time I spent in Orlando was that I found myself feeling more defiant against those who seek to destroy our community. They want us to live in fear, and I refuse to give them that satisfaction.
What, if anything, changed as a result of Pulse?
NAFF: In the immediate aftermath of the attack, queer spaces began rethinking their approach to security, which has served us well in the years since. Sadly, just a year later, Pulse was bumped to the No. 2 deadliest mass shooting in U.S. history when a gunman opened fire on the Route 91 Harvest music festival in Las Vegas, killing 60 people. Americans and their politicians never learn from these largely preventable tragedies. The carnage continues.
LAVERS: Gun violence remains a shameful scourge in this country. Our community remains vulnerable to violence and discrimination. President Donald Trump, Vice President JD Vance, and other politicians here in Washington, around the country, and overseas continue to use our community to advance an anti-equality agenda. The carnage continues, as my colleague correctly notes, but our community remains strong and defiant. That gives me hope.
National
Queen Jean is Tony’s first transgender winner
Designer/activist wins for work on ‘Cats: The Jellicle Ball’
It was a historic night at the 79th annual Tony Awards on Sunday as Queen Jean won the award for Best Costume Design of a Musical, making her the first out transgender person to win a Tony.
“This experience has been monumental. We are here for the legacy of queer people, trans people,” she said. “We are taking up space in ways we have to take up space. We have to shift the paradigm. So I just want to say, thank you all so much for this incredible honor. The world right now is deeply, deeply combating so many ailments, and we know as a society that when we come together, we can make real, permanent change.”
She won the award for her work on “Cats: The Jellicle Ball” and was also nominated for best costume design of a play for “Liberation.”
In addition to her stage work, Queen Jean is the founder of Black Trans Liberation, an organization that supports trans and gender-nonconforming people in New York City.
National
Madonna turns Times Square into massive dance floor
Pop icon celebrates Pride month with surprise performance
Pop icon Madonna celebrated Pride month with a pop-up performance in New York City’s Times Square on Thursday to the delight of 50,000 fans.
She performed for about 15 minutes high above street level, including several songs from her new album “Confessions II” due on July 3, along with a trio of songs from the first “Confessions on a Dance Floor.”
In addition to the brand new “Love Sensation,” she performed “I Feel So Free” and “Bring Your Love,” plus “Hung Up,” “Get Together” and “I Love New York.” She wished the crowd a happy Pride season; the event was shared with audiences through Grindr’s first-ever livestream.
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