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.
New York
Grace Meng sharply criticizes DOJ over hospital settlements
N.Y. congresswoman spoke with the Blade this week
Few things have riled up Republicans in power like the ongoing fight to restrict gender-affirming care for minors.
The Trump-Vance administration has been clear in making the fight against transgender rights, healthcare, and visibility a priority as they enter their “lame duck” phase of the presidency.
With the midterms looming, they are hoping scapegoating trans children — as they did in 2020, only for it to grow into a core national party strategy in the following elections — will save them from a less-than-secure control of the federal government like they’ve had since Trump took office.
In the past year, numerous deals have been struck between hospitals that have provided gender-affirming care to minors and the Justice Department to halt any further care.
While Republican pundits and conservative voices continue to accuse these hospitals — like NYU Langone and Mount Sinai Health System — of committing what they contend are atrocities against these children, large portions of gender-affirming care for minors involve social transitions and puberty blockers, which are reversible.
The Washington Blade spoke with Congresswoman Grace Meng, who represents New York’s Sixth Congressional District and is the ranking member of the House Appropriations Subcommittee on Commerce, Justice, Science, and Related Agencies, to discuss whether these ongoing settlements between hospitals and the Trump-run Justice Department are legal.
In her role as the ranking member of the House Appropriations Subcommittee on Commerce, Justice, Science, and Related Agencies, Meng oversees funding for Justice Department and a slew of other federal agencies. The position gives her the power to look behind the coercion, examine how things are being done, and question the policies and actions of these federal powers in a way many other members of Congress cannot.
Meng said the Justice Department’s actions against hospitals providing gender-affirming care are part of what she sees as a broader pattern of institutions — under the control of this president — targeting LGBTQ people.
“Unfortunately this is not the first time that the DOJ is weaponizing the agency to target our communities, and our LGBTQ+ community, especially our young people, are unfortunately yet another victim of that,” Meng told the Blade. “The real victims are the actual patients and families who are losing a trusted provider.”
She argued that one prong of this ongoing situation is the way the DOJ is going about these “wins” — through pressure rather than through going to court to find actual wrongdoings.
“This DOJ knows that they can’t win in the courts based on the merit of these types of actions, so they are just working by bullying and using coercion to cheat their way through getting what they want,” she said.
She pointed to the use of litigation, subpoenas, and reputational damage against the hospitals as part of that pressure campaign.
“They know that they can’t prove any wrongdoing in court, so they’re just using the threat of prolonged litigation, subpoenas for patients’ records and trying to damage reputations of these institutions as they’ve been cutting funding for them.”
The hospitals involved so far include NYU Langone Hospitals in New York, University of Pittsburgh Medical Center in Pennsylvania, the Mount Sinai Health System in New York, the Cleveland Clinic Foundation in Ohio, Connecticut Children’s Hospital in Connecticut, and Texas Children’s Hospital in Texas.
Meng said the settlements are part of a broader strategy by the Justice Department.
“This is a part of their larger deliberate strategy across the country. They’ve obviously gone after NYU Langone. They’ve gone after Mount Sinai in my state, and they’re doing this in other states as well.”
When asked about the agreements being reached between the Justice Department and hospitals, Meng was direct.
“I think these are forced settlements. Absolutely,” Meng said.
Meng described the federal government’s involvement in individual trans healthcare decisions as an intrusion into private medical decisions.
“This is cruel. It’s a cruel form of coercion. It’s a form of cheating,” she went on, comparing this to the ongoing fight for reproductive freedom in the country. “Just like when we’re talking about reproductive rights, right? It’s an invasion of privacy. These are confidential patient records.”
Meng said the federal government should not be involved in decisions between families and their doctors.
“President Trump and the federal government do not belong in a hospital, helping to make decisions that are very personal and sensitive to every single family. They should not be involved in these decisions.”
She said the settlements could leave families without access to healthcare they need.
“Their way of forcing these settlements and leaving so many without the healthcare that they really need is really just devastating.”
Meng said the impact is already being felt by families in her district and across New York.
“The human impact, the impact on our families, on our constituents here in Queens and throughout New York, is really hurtful.”
Meng framed the issue as part of what she described as a larger pattern within the Trump-Vance administration of attacking the most vulnerable.
“If you ask me to sum up this administration in one word, it would be cruelty,” she said. “They feel like they have a right to decide who is American enough in this country, and who is good enough, and who is deserving enough.”
She went further, saying Trump is “literally acting as a dictator.”
She contrasted his leadership with that of a traditional public servant.
“Most public servants wake up every day thinking of ways that they can make people’s lives better, how they can help people. This administration and this action is no different. It wakes up and thinks of a new way to target a different community every day.”
As the ranking member of the House Appropriations Subcommittee on Commerce, Justice, Science, and Related Agencies, Meng said Congress has tools available to examine how the Justice Department operates and spends federal money.
“The purpose of our 12 subcommittees is to have direct oversight and leverage as Congress members, as the third branch of government, over how the Department of Justice spends our taxpayers’ money.”
One crucial thing Meng pointed out about being on this committee is the fact that much of the work of appropriations is bipartisan and is entirely within the power of Congress via the Constitution.
“We need the White House to respect the constitutional process that the Appropriations Committee goes through,” she said. “We write the Appropriations Law. It’s between Republican and Democratic Congress members.”
When asked about the funding from the settlements — and the continued funding for an increasingly looked-down-upon DOJ — she said she is seeking greater transparency into how federal money is being spent.
“I think that both sides will end up wanting more transparency into the money, how the money is spent.”
Meng said Congress has the legal authority to place requirements on the Justice Department through appropriations legislation.
“We have the legal authority to include language that helps write the DOJ and other agencies, but the DOJ’s budget, and so we will certainly exercise that authority whether or not we’re in the majority.”
She also pointed to the possibility of Democrats taking control of the U.S. House of Representatives after the midterms.
“Hopefully, as we’re in the majority after November, we will be able to have more teeth and more ability to apply that pressure and to write the bill in a way that is transparent and doesn’t harm our families.”
Despite the growing public agitation and disappointment over these settlements, Meng said there is not yet a specific schedule for congressional hearings on the issue, but that it may come after the midterms.
“We don’t have a timeline of hearings and specific topics, but CJS is everything under Commerce, Justice, and Science-related agencies,” she said. “Hopefully, when House Democrats control the House and maybe even the Senate, that we’ll be able to claw back some of their overreach.”
Meng also criticized what she described as a Justice Department operating outside the traditional boundaries of the agency.
“They can’t operate as a rogue agency or as a personal law firm of this president, in the way that they’re doing now. Using subpoenas, threatening prosecutions, these settlements — they are tools that are being used, I believe, unethically and illegally.”
Meng said trans children and their families could continue to face the consequences of the administration’s actions as the Justice Department expands its efforts.
“These are maybe low-hanging fruit or easy targets for the administration, but I can see them going after institutions in other states as they started to do as well.”
She said members of Congress have a responsibility to reassure affected families that they are not alone.
“Our job, whether it’s a representative for my Queens families, but for families across America too, is to let them know that I and my colleagues, many of my colleagues, are standing with them.”
“We are still with them, especially with the patients and the families affected by the NYU Langone deal, but any of these institutions and how they’re hurting them.”
Meng said she wants to achieve that through partnerships outside of government.
“We’re gonna do our best to expand partnership with organizations on the ground to make sure that they’re getting the support and the care that they need.”
While talking to the Blade, Meng also raised broader concerns about the relationship between Congress and the executive branch.
“This administration has definitely not followed the Constitution, and I know that there are pending lawsuits,” she said.
Just this week, the Trump-Vance administration was taken to court over what CNN, POLITICO and MS NOW alleged were violations of their First Amendment rights.
Meng said the administration has not treated Congress as an independent branch of government.
“They [the president] do not act as if Congress is a third branch of government. They think and act like Congress works for them, like they’re a part of their agencies that they’re weaponizing.”
Meng said she believes the public has become more aware of the administration’s actions, but that there is still work to do in explaining how those actions unfold.
“I think that the American people’s eyes have been opened a little more under this administration than in past ones … There’s definitely more room to continue to educate the public as to what this administration is doing.”
For Meng, the debate over trans healthcare ultimately comes down to the families affected by the decisions being made in Washington.
“What’s most important is not just the legalese that everyone’s debating these days when news like this comes out. We have to remember that there are real human beings, real families that are being impacted,” she said. “There are people crying behind closed doors in their homes, and they don’t know literally what they can do or where they will call next to get the care that they need and that they want.”
Meng said lawmakers have a responsibility to address the issue legislatively while also supporting families in their communities.
“It’s our job in Washington, in the capital, to fight these fights legislatively. But in our home districts and in our communities, it’s our job to reassure these families that we’re there for them, and that we’re going to be creative, and we’re going to find new partnerships and expand existing ones to make sure that our families have a path forward.”
She said local and state governments are also being forced to find ways to respond — and, in many cases, end up being some of the only places where protections can happen.
“Our local legislators and many of our communities, on the city level, municipal level, and the state level, they’re looking for more funding options, and a lot of them, including in New York, have had to step up in major ways.”
“Everyone has to step up in newer and more creative ways.”
Ultimately, Meng said the focus should remain on the families affected by the decisions.
“But at the end of the day, it’s the families that are impacted that we’re doing this for,” she said.
The Human Rights Campaign, the largest LGBTQ advocacy group in the U.S., issued a statement this week following the announcement of more settlements.
“This is nothing less than a crisis for families and transgender youth. Since day one, Trump and his callous administration have used the full force of the federal government to come after transgender young people, their families and their doctors — and far too many hospitals are complying and abandoning their patients. Now, even in states with policies that protect transgender people, the options for parents to get their children best-practice, and potentially life-saving healthcare, are dwindling day by day,” HRC President Kelley Robinson said.
“This is the exact outcome Trump wants to see — and this cruelty shouldn’t be lost on anyone who has ever had to make difficult decisions about how to safeguard their child’s health and well-being. Our thoughts are with the countless families across the country who feel scared and under siege. We will not stop fighting until everyone can have access to the healthcare they need.”
While the Blade had her, they also asked about House Speaker Mike Johnson (R-La.), and his decision to send members of Congress home rather than hold a vote on impeaching Defense Secretary Pete Hegseth, in part over his trans military ban, which has left thousands of highly skilled, ready and able workers sitting on the sidelines awaiting the courts to tell them if they are guaranteed the right to fight on behalf of the country.
“I can’t take credit for this, but someone called it the Hegseth holiday,” Meng said. “This speaker, every time there’s a tough vote, instead of acting as a leader and a speaker, he just calls it quits and he sends us home.”
“I believe — and I’m sure he does — that we had enough votes to impeach Hegseth, and he didn’t want to do it. So off we go.”
National
Philadelphia event to launch 2026 LGBT History Month
Dr. Fauci to be honored as 31 LGBT ‘Icons’ are announced
Equality Forum, the Philadelphia-based group that organizes the nation’s annual LGBT History Month in October, is scheduled to launch the 2026 LGBT History Month at a VIP Reception on Sept. 27.
The event, to be held at Philadelphia’s Independence Visitor Center, will honor Dr. Anthony Fauci, the former director of the U.S. National Institute of Allergies and Infectious Diseases who is credited with playing a leading role in the fight against HIV/AIDS and COVID-19. Equality Forum was to present Fauci with its International Role Model Award.
The Equality Forum, which operates programs focusing on LGBT history and the people who play a leading role in historic undertakings, will also present its Frank Kameny Award to Erica Deuso, who in 2025 won election as the first openly transgender mayor in the state of Pennsylvania as mayor of the town of Downington, Pa.
A statement released by the Equality Forum points out that LGBT History Month, held each year, celebrates the achievements of 31 lesbian, gay, bisexual, or transgender icons throughout the month of October. “Each day in October, a new LGBT icon is featured with a video, bio, bibliography, downloadable images, and other resources,” the statement says.
Although the statement releases the name and a short background description of each of this year’s 31 LGBT icons, the icons were scheduled to be officially announced and honored at the Sept. 27 event.
“The LGBT community is the only community worldwide that is not taught its history at home, in public schools or in religious institutions,” the statement says. “LGBT History Month provides role models, builds community and makes the civil rights statement about our extraordinary national and international contributions,” it says.
This year’s Icons include designer Calvin Klein, media mogul Barry Diller, U.S. Senate hopeful Chris Pappas, and perhaps most notably President Abe Lincoln.
Additional information about the event and a list of the 2026 LGBT Icons can be accessed at lgbthistorymonth.com.
Netherlands
Dutch prime minister visits Stonewall Inn
Rob Jetten is the Netherlands’ first openly gay prime minister
Dutch Prime Minister Rob Jetten on Monday visited the Stonewall Inn in New York.
“The Stonewall Inn is not just a gay bar in New York, but the place where in 1969 riots took place as a reaction to years of discrimination and police violence,” wrote Jetten on X. “This is seen as the starting point of the global LGBTIQ+ emancipation and activism. Nowadays, the bar is a national monument, dedicated to the LGBTIQ+ rights movement.”
“For me, it is impressive and moving to be here tonight. And also fitting, because the defense of human rights is an important part of our foreign policy,” he added. “The Netherlands stands alongside the Stonewall Inn community when it comes to everyone’s right to live openly, safely, and with pride, no matter who you are or who you love.”
De Stonewall Inn is niet zomaar een gay bar in New York, maar de plaats waar in 1969 rellen plaatsvonden als reactie op jarenlange discriminatie en geweld van de politie. Dit wordt gezien als startpunt van de wereldwijde lhbtiq+-emancipatie en activisme. Tegenwoordig is de bar… pic.twitter.com/hJmFYjF91Z
— Rob Jetten (@MinPres) September 23, 2026
Jetten in February became the Netherlands’s first openly gay prime minister.
He opened last month’s World Pride Human Rights Conference in Amsterdam. Jetten also participated in a panel with former Irish Prime Minister Leo Varadkar, former San Marino Captain Regent Paolo Rondelli, and other current and former heads of government who are gay or lesbian.
Jetten is scheduled to speak to the U.N. General Assembly on Thursday.
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