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
Remembering Barbara ‘Boo’ Price, a pioneering force in women’s music
Key organizer behind Michigan Womyn’s Music Festival
Barbara (“Boo”) Kay Price, a pioneering figure in the women’s music movement, died Tuesday, Aug. 4 in Oakland, Calif. Price produced some of the earliest women’s music concerts as a new lesbian-feminist culture was taking shape, and was a driving force behind the Michigan Womyn’s Music Festival which ran from 1976 to 2015 – a flagship event in the movement, and the largest women’s music festival in North America. Price was 82.
“Her vision from the very beginning was how complex and how wide the whole phenomenon of women’s music could be, and how far we could carry it beyond the multi-purpose rooms and church basements into Town Hall and the Palace of Fine Arts and major media,” says singer-songwriter Margie Adam, for whom Price served as manager, agent, producer and attorney from 1975 to 1984, and, for part of that time, her romantic partner.
“I think when she heard Cris Williamson, Vicki Randle and me sing at the Embassy Theater in 1974, she grasped that this thing we were just beginning to call women’s music could actually be a soundtrack for the women’s liberation movement – that it could be an activator and a healing, empowering tool.”
Arguably, nowhere was that emerging culture of music, feminism and community more fully realized than at the Michigan Womyn’s Music Festival.
At its peak, 8,000 women, predominantly lesbians, came from around the world to gather for a week in August. Camping, music, dance performances, workshops and the requisite tofu and beans were just a few of the innumerable offerings in this rite of passage for a generation of lesbians in a time when there were few safe and free environments available.
Alicia Davis of Michigan remembers the festival foremost for its sense of community. “The feeling of not having to make myself smaller to fit into the world, but rather the feeling that I could be happy, loud and share my opinions and feel valued, even when there were disagreements among people,” she says. “There was a shared respect that I didn’t feel outside of the festival walls. The festival shaped what I thought women could do in the world, the entire camp was made by women: electricians, plumbers, cooks, carpenters, singers, artists of every stripe… “
The sense of shared experience followed women long after they left “the land.”
In the 1980s, drivers across the U.S. would exchange knowing glances when passing a car with the familiar “See you in August!” bumper sticker. It was the original IYKYK.
The Festival was also an important showcase for emerging and established musicians, including Holly Near, Meg Christian, Tracy Chapman, Indigo Girls and Ani DiFranco. The list of alumni is vast and stretches across genres from classical to Afro-centric percussion. To name just a few: Casselberry-DuPree, Phranc, Heather Bishop, Ubaka Hill, big band Deuce, flutist Kay Gardner, Edwina Lee Tyler, Lynn Breedlove-fronted punk band Tribe 8, pianist Mary Watkins, and Cultural Heritage Choir founder Linda Tillery who remembers Boo as the big sister she never had.
“I could go to her with anything, and she would listen and give counsel. She was always supportive of me and usually right,” the singer and arranger says.
And while Michigan wasn’t the only festival in the country, it inspired people like marriage equality activist and comedian Robin Tyler who attended Michigan because of Price, and went on to produce her own West Coast music and comedy festivals, as well as the main stage for three Marches on Washington.
“My last memory of Boo was not about Boo Price, the producer or the magician that could create everything,” says Tyler who was also Price’s lover for a time. “It was how lucky I was to have had her in my life at all, and that we were able to love each other and share. She was one of the most influential people of my life.”
Price’s talents were evident across the festival’s sprawling operation which relocated several times over its 40-year existence. In 1982, together with one of the original founders, Lisa Vogel, Price purchased the land that would become the festival’s permanent 650-acre home near Hart, Michigan; in 1983, she became a co-owner and co-producer, a role she held until the two parted ways in 1994.
From 1976–1994, Price was involved in many aspects of the Michigan Womyn’s Music Festival. But her prowess as producer was perhaps most visible at the Night Stage. Her contemporaries have vivid memories of an opening ceremony with an aerialist swinging on a trapeze from an oak tree, while jazz artist Rhiannon performed on vocals.
“Sometimes it started with a parade or a procession and percussion, and sometimes there were stilt walkers – and so there was always this production about you as you were coming to Night Stage,” remembers Sändra Washington, who performed with her twin sister Sharon as the Washington Sisters. As a performer, Washington recalled the wall of energy rushing at her from the audience.
“It was her desire to create a thing, a space, an event that was really magnificent – and that showed in everything she did, whether or not she was organizing a tour, or she was organizing a party, or events at the [Montclair] club,” says Washington. “Boo really specialized in creating a whole vibe around the event, the space, the production, so that you felt something special when you came into a space that Boo had created.”
“There was never a space that felt as positive, overwhelming, and energetic as the crowd at Michigan.”
Kathryn A. Wilmore, co-founder of feminist journal Sojourner, remembers how Michigan grew into something bigger than anticipated – and how instrumental Price was in elevating the rudimentary systems needed to support it. One year, Wilmore brought copies of Sojourner to the festival, hoping to connect with other people publishing women’s papers. “But there was no system for communicating any of that really. So I just tacked a note on a tree of that location, and there were about 30 of us that came together.”
Price, Wilmore says, helped put systems in place, articulate a vision, and bring in people who could then carry it forward.
“Boo really empowered so many women in so many dimensions. I think that is one of the overarching themes of her life, and certainly in music production… and her confidence was infectious. So people who had never done something grew into becoming experts. I think that she inspired and empowered.”
Wilmore first met Price in 1961 at Mt. Holyoke just after the women arrived for the start of college. “There were all these girls in this half-empty dorm in the middle of a hurricane, and Boo started going around to everyone’s room to introduce herself. Then she got to my room… and that was the beginning of this lifelong friendship.”
The importance of what Price created cannot be overstated, nor the reach and durability of the connections formed in the space she helped build.
Just last month, a French woman found this writer on Instagram 40 years after the Festival and claimed I invited her into my tent. We have been corresponding since this improbable reconnection (though the question of who did the inviting is under dispute):
Emmanuelle Gachet, now a writer and professor at Université de Nantes, reflects on her experience:
“In 1986, I step onto an island populated by six thousand women. I come from France, from a rural area, and I am twenty years old. Never before have I felt such a powerful energy. Here, lesbianism is the norm. I don’t have to justify my place. For the first time, I am not a minority. At the time, I am broke. The community welcomes me with sisterhood. I take part in artistic and political workshops, without always realizing their significance. I discover music without male voices. Women playing, singing, improvising, taking the stage. A stage of their own. Music becomes a common language, a way of recognizing one another, of celebrating who we are and what we can create together… I leave with the feeling that I am leaving a world that may never exist again… “
Price’s influence extended beyond the festival arena. The MSU Libraries document the breadth of her production work, including the Women on Wheels Tour in 1976; a celebration for the opening of Judy Chicago’s The Dinner Party in 1979; concert closing the ERA Campaign at Constitution Hall with Margie Adam and Sweet Honey in the Rock; and, decades later, the 2008 San Francisco City Hall memorial for lesbian rights pioneer Del Martin. She also established Women in Production in 1976, which hired and trained primarily lesbian technicians and production staff.
Price co-founded Pleiades Records with Margie Adam in 1975, producing and promoting Adam’s first four albums. She had an eye for the entire presentation – from press kits and photography to album covers – and for how the emerging women’s music movement projected itself to the world. Price produced a 50-city tour promoting Adam’s first album, culminating at the historic National Women’s Conference in Houston in 1977, where Adam performed “We Shall Go Forth!” as 10,000 women joined in three-part harmony.
“When Boo and I began to work together, both of us were convinced that we should have that phrase, ‘Women’s music by women about women for everyone.’ And that was not a point of view that was agreed upon by everybody in women’s music,” Adam says. “We had wiggle room in there, and we had controversy, and we had continuums.” Ultimately, Price wanted the music “to get out as far as it can go.”
Barbara Kay Price was born on Oct. 8, 1943 in Lafayette, Ind. She received a bachelor’s degree in political science from Mount Holyoke College in 1965, and Juris Doctor from UC Davis in 1976.
She brought her legal background, organizational skills and business acumen to everything she touched – including the justice system, most notably through her work on child custody cases, a focus that grew out of her own experience.
In 1978 she co-authored a law review article on lesbian custody proceedings and how attorneys could best prepare, at a time when lesbians were viewed unfavorably by the courts and “Sexual Orientation Disturbances” remained a psychiatric diagnosis.
“People forget what it was like,” says attorney Diane Gelon, who first met Price in 1977 at the women’s conference in Houston. “The lesbian mother would not have even had what we would look at now as normal access to that child because the fear was that the kids would be gay or lesbian, or there would be some amount of gender confusion, or they would suffer some kind of psychological harm… These are the myths that Boo wrote about and tried to address.”
Earlier in her career, she also worked at the White House for the Food for Peace Program, where she helped organize a Latin American tour for First Lady Lady Bird Johnson. She also worked with the President’s Commission on Civil Disorders. Price later became active in Bay Area Lesbians in Law, the Lesbian Rights Project, Lyon-Martin Clinic, the National Lesbian Feminist Organization, National Organization for Women, the National Women’s Political Caucus, and Women and the Law.
Whether through politics, advocacy or music, much of Price’s work was centered around creating spaces for women.
Following her tenure with the Michigan Womyn’s Music Festival and a brief hiatus, Price couldn’t help but create another gathering place. She had been regularly driving past an old building, originally established as a social and literary club in 1928. It still had its projection room, stage and lightboard. She knew she had to have it.
“She just was always producing, even when she had stopped,” says Sharon J. Washington.
Price purchased the building in 1996 and, after a thorough renovation, opened the Montclair Women’s Cultural Arts Club, which became home to the Montclair Women’s Big Band, which she co-founded with trumpeter Ellen Seeling in 1998. Over the next two decades, the predominantly lesbian space became a vital gathering hub, hosting more than 2,000 events – high-toned parties, workshops, theater, dance, concerts, and more.
“Her Valentine’s Day dances were extraordinary,” says Sändra Washington, who remembers four-course plated meals and, like many of Price’s friends, volunteered at the club.
When the club closed in 2015, luminaries of women’s music came together for farewell performances, and the San Francisco Bay Times chronicled the extraordinary range of what had taken place there: more than 500 birthday celebrations, 150 concerts (“which we can attest were fabulous,” the paper wrote), countless workshops, arts and cultural events.
“Whatever Boo had built, whether it was the club or her home – that was our second home,” says Sändra Washington.
“Buying that club was in some ways a transgressive action, but at the same time, it was saying we belong here,” says Margie Adam. “We belong everywhere. Women’s music belongs everywhere, and that was her vision from the moment that I met her.”
“I think of Boo as someone who inspired and empowered women everywhere,” says Kathryn Wilmore. “She herself was a fearless explorer, and she instilled that spirit into so many other women who would never imagine themselves doing the things that they did. And it wasn’t just in music.”
Wilmore remembers Price’s first foray into scuba diving. “She was a good swimmer, but there she was, completely underwater with this mask on, not being able to see much in front of her. So she just kept her eyes on the fins of the guide in front of her.”
She woke up the next morning and said, “Let’s do that again.”
“And she just fell in love with it, became an expert diver, and then inspired so many other women – including me,” says Wilmore, who would never have imagined venturing into the sea’s depths had it not been for Price.
Price soon convinced others to join her, and organized trips over the years to explore earth’s bounteous ocean offerings – women traveling the world from the Caribbean to the Solomon Islands and sharing in the joy that Price found amid the coral reefs of Indonesia.
Price is survived by her son, Andrés Garcia Price; daughter-in-law, Katie Garcia; granddaughter, Tallulah Katherine Garcia; nieces Melissa Price and her husband, Donal, and Cynthia Price Czabala and her husband, Tom; and an expansive community of chosen family, friends, and beneficiaries of her generous and unstoppable spirit.
“Many of you know that Boo’s health had been in decline for some time,” Kathryn Wilmore, Sharon J. Washington, and Margie Adam wrote in announcing their friend’s passing. “Over this past weekend, she had a serious heart attack and was being cared for in the hospital, with her son Andrés and family with her much of the time. Yesterday afternoon, she noticed a partially open door in her room and asked the nurse if that was the exit, because she was ready to leave. A few hours later, she did just that – moving on to another realm, but never out of our hearts.”
Pentagon
Supreme Court ruled Boy Scouts could exclude James Dale. Now he says that same rule protects LGBTQ scouts from Trump
James Dale, the gay former Boy Scout whose landmark Supreme Court case established the organization’s First Amendment right to exclude him, has filed a second federal lawsuit against the Department of Defense over its relationship with Scouting America.
The Aug. 3 lawsuit, which is being exclusively reported by the Blade, seeks records about how the Pentagon is enforcing its ongoing compliance reviews with Scouting America, escalating Dale’s legal challenge to what he and his attorney, Isaac Park, characterize as government pressure on a private organization to change its policies.
The filing, which has not previously been reported, comes months after Dale sued the Pentagon under the Freedom of Information Act to obtain the memorandum outlining the department’s agreement with Scouting America. That first lawsuit resulted in the Pentagon releasing the memorandum just three weeks after Dale filed his complaint.
Now, Dale and Park want to know what happened after the memorandum was signed — including how the Pentagon is conducting its 90-day compliance reviews and whether those reviews are being used to pressure Scouting America to make additional changes.
The second lawsuit cites the Supreme Court’s 2024 ruling in NRA v. Vullo, which addressed when government officials cross the constitutional line by using their authority to pressure private organizations or entities into taking action the government itself could not directly require.
“I find myself in this interesting, ironic place where I’m defending the decision that expelled me,” Dale told The Washington Blade. “That said, Scouts, you have a First Amendment shield to protect yourselves from the DOD.”
Dale’s legal fight comes as Scouting America faces pressure from Defense Secretary Pete Hegseth, who has criticized the organization’s embrace of LGBTQ youth, girls and Scouts of color.
In recent years, Scouting America has made significant progress toward becoming a more inclusive organization — from removing its bans on LGBTQ Scouts and leaders, to providing opportunities for women and girls to participate in Scouting, to making Scouts of color feel more supported and visible within the organization.
Those changes angered Hegseth, who has never been a Scout, to the point that he threatened to sever the military’s longstanding ties with the organization.
Such a move would mean that the U.S. military would no longer provide medical and logistical support for the National Jamboree, the massive gathering of Scouts in West Virginia that typically draws about 20,000 participants. It would also prevent Scout troops from meeting on U.S. or overseas military installations, where many bases host active Scouting programs.
In February, before that threat was carried out, Hegseth announced that the Pentagon had reached an agreement with Scouting America that he said would refocus the organization away from diversity initiatives and other policies he characterized as “woke.” He again threatened to end the military’s longstanding support for the organization if it failed to comply within six months.
Hegseth also placed particular emphasis on Scouting America’s policies regarding transgender youth, saying the organization would require members to use their “biological sex at birth and not gender identity.”
But Scouting America President and CEO Roger Krone struck a different tone.
“We have transgender people in our program and we’ll have transgender people in our program going forward,” Krone told The Associated Press in February.
The conflicting messages prompted Dale to dig deeper.
“I wanted to get to the bottom of what deal had been struck with Scouting America under pressure,” Dale said. “What pressure did the Pentagon apply on a private youth organization that had a right to determine their own members?”
Dale filed a Freedom of Information Act request seeking the memorandum between the Pentagon and Scouting America. When the Defense Department did not provide the document, he turned to Park, a former Supreme Court clerk, and sued the department for its release.
Park said they deliberately took a narrow approach to the FOIA lawsuit, seeking a single document rather than launching a broader fight over thousands of pages of government records.
“We had one document that we really wanted, which was this memorandum, and we were going to ensure that there’s like a lead-pipe, stone-cold case for disclosure,” Park said.
The strategy worked quickly. Three weeks after the lawsuit was filed, the Pentagon released the memorandum.
But the document did not end Dale and Park’s questions. Instead, they said, it raised new ones.
Hegseth had publicly described a six-month window for Scouting America to make changes. But the memorandum provides for an ongoing compliance mechanism, with reviews taking place every 90 days.
For Dale and Park, that raises the possibility that the Pentagon could continue pressing Scouting America to change its policies long after the February agreement was announced.
Park described their concern as “jawboning” — the use of government power or influence to pressure a private organization into changing its policies without the government directly ordering it to do so.
“We saw in the weeks after the announcement of the memorandum changes being made to Scouting America’s policies,” Park said. “Them saying one thing, the department saying a slightly different thing, and our first question then was, of course, like, what is actually in this memorandum? Is this how they kind of got what they wanted?”
The memorandum, Park said, “clarified certain questions, but definitely also didn’t contain other changes” that Scouting America had made.
“That naturally arises: Well then, how did those changes come about?” he said.
Dale points to changes at Scouting America’s National Jamboree as an example of what he believes could be the result of the pressure.
The organization removed dedicated spaces for girls, Scouts of color and LGBTQ Scouts at the flagship event, which concluded last week.
“We see spaces for girls being eradicated, spaces for kids of color, spaces for gay people, for trans kids,” Dale said. “It happened at the flagship event of scouting, the jamboree.”
Dale said he fears similar changes could occur at the local level, including at Scout meetings and council events.
“All this document is empowering the government to keep pressing, keep putting pressure on Scouting America,” Dale said. “And what is that doing to American kids?”
The dispute is particularly striking because of Dale’s own history with the organization.
Dale had a long history with Scouting before the organization expelled him in 1990. At the time, he was a 19-year-old student at Rutgers University in New Jersey and was serving as an assistant Scoutmaster for Troop 73.
While attending Rutgers, Dale became co-president of the university’s Lesbian/Gay Student Alliance and was interviewed by The Star-Ledger about the health and well-being of LGBTQ students.
The interview made its way to Boy Scouts officials. The organization subsequently expelled Dale after learning that he was gay, describing him as an “active sodomite.”
Dale sued the Boy Scouts under New Jersey’s public accommodations law and initially won. The New Jersey Supreme Court ruled in his favor, finding that the state’s interest in preventing discrimination outweighed the organization’s claimed right to exclude him.
The Boy Scouts appealed to the U.S. Supreme Court.
In a 5-4 decision in 2000, the Supreme Court reversed the New Jersey ruling, holding that forcing the Boy Scouts to accept Dale as an openly gay assistant scoutmaster would violate the organization’s First Amendment right to freedom of expressive association.
The Scouts had argued that homosexual conduct was inconsistent with the values it sought to instill in young people.
Dale was devastated by the ruling.
“I thought it was the wrong decision at the time,” he said.
But the constitutional protection the Supreme Court recognized in his case is now at the center of Dale’s argument against the Pentagon.
The Boy Scouts’ policies have changed dramatically since Dale’s case. The organization began allowing openly gay youth in 2013 and gay adult leaders in 2015. It later expanded its policies to include transgender youth and adults.
The Boy Scouts of America formally changed its name to Scouting America in 2025.
Dale said those changes were made voluntarily — precisely the kind of private organizational decision that the Supreme Court’s ruling in his case protected.
“They did it voluntarily,” Dale said. “They won the Supreme Court case against me.”
Now, he argues, Scouting America should invoke that same protection against the government.
Park said that is the central constitutional question behind their efforts.
“In 1990, when he was expelled from the Scouts for being gay, and in 2000, after a narrow 5-4 loss at the court, we were told that a private entity, an organization like Scouting, are allowed to set their own membership policies,” Park said.
Over the following two decades, Park said, Scouting America changed those policies on its own.
“We won the culture war,” Park said. “Organizations like Scouting America decided on their own, of their own free will, that actually what they want is to be inclusive with respect to gay youth, with respect to trans youth.”
The question now, Park said, is whether the government can pressure an organization to reverse those voluntary decisions.
“I think that the story here is that of jawboning,” Park said. “Our question has always been the how of how this administration is achieving whatever policy goals, whatever ideological outcomes that they want.”
Dale sees the issue as extending well beyond Scouting America.
“It’s not even about the scouting program,” Dale said. “It is, but it’s much bigger than that. It’s about really what the executive branch is doing to private organizations that have a right to set their own policies for membership.”
Park said the argument could appeal to people across the political spectrum.
“During the Biden administration, it was COVID policy, and it was the NRA that the right was screaming about jawboning,” Park said. “This is a bipartisan issue in the sense that no one thinks the government is allowed to do this.”
For now, Dale and Park are seeking more information.
Park said their review of the memorandum left them with additional questions about the Pentagon’s relationship with Scouting America and whether the 90-day compliance mechanism is being used to continue influencing the organization.
“Disclosure or transparency is the right remedy for this,” Park said.
Dale’s interest in Scouting is not merely legal.
He said he still believes deeply in the organization and had returned to involvement with Scouting only recently, after years away.
“I love scouting,” Dale said. “I fought for a decade to get back in scouting.”
That makes his current position all the more unusual.
The organization that once fought him in court is now the organization he is trying to defend from government interference.
“I never thought that would be the case,” Dale said. “That would be saving queer kids.”
Dale said he hopes Scouting America will ultimately stand up for the policies it adopted after his Supreme Court case.
“They didn’t want gay people in the ’90s. Fine, I thought that was wrong,” Dale said. “But now they want to have trans kids. They want to have girls. They want to have kids of color.”
“But Donald Trump and Pete Hegseth don’t want them to,” he said.
The Pentagon declined to comment on Dale’s allegations or the ongoing litigation.
“As a matter of policy, we do not comment on ongoing litigation,” a Pentagon spokesperson told The Washington Blade via email.
The Blade also contacted Scouting America seeking clarification about its agreement with the Pentagon, including whether Hegseth or other Defense Department officials had pressured the organization to remove or alter policies protecting LGBTQ Scouts, girls, or Scouts of color.
Scouting America did not respond to a request for comment.
For Dale, the fight has brought his long-running legal battle with the Scouts full circle.
He spent the 1990s arguing that the organization should not be permitted to exclude him because he was gay. The Supreme Court ultimately said the Scouts had a constitutional right to make that choice.
Now Dale is arguing that the government cannot force the organization to make a different choice.
“I realized over the course of my life that I expected the institution to save me,” Dale said. “I expected the Boy Scouts of America to do the right thing. I expected the legal system, the Supreme Court, to do the right thing.”
“Neither one did,” he said. “You got to fight for yourselves.”
Minnesota
Flanagan beats Craig in Minn. Senate primary after winning key LGBTQ endorsements
The race highlights a growing ideological shift within the Democratic Party, as Democrats increasingly seek a more robust pushback against Trump.
Lt. Gov. Peggy Flanagan won the Democratic primary for the Senate in Minnesota, as progressive Democrats continue to clinch nominations across the country.
On Tuesday night, NBC News called the race for Flanagan, who received 59.0% of the state’s Democratic primary vote, while her opponent, Rep. Angie Craig, received 39.4%. Flanagan ran against Craig for retiring Sen. Tina Smith’s seat.
Smith, along with Sens. Bernie Sanders, I-Vt., and Elizabeth Warren, D-Mass., endorsed Flanagan, while House Minority Leader Hakeem Jeffries, D-N.Y., and former House Speaker Nancy Pelosi, D-Calif., backed Craig.
Flanagan also received the endorsement of the Christopher Street Project, a transgender rights organization that has been at the center of efforts to counter the Republican Party’s push against transgender rights. The group chose Flanagan over Craig in part because Craig has not co-sponsored the Trans Bill of Rights, legislation that has been introduced multiple times in Congress and seeks to establish federal protections for transgender Americans.
The endorsement underscored a key difference between the two Democrats on LGBTQ issues. While Craig is the first openly lesbian mother in Congress, the Christopher Street Project said LGBTQ identity alone is not enough without a strong commitment to transgender rights as they are increasingly debated in legislative offices around the country.
In 2022, the Human Rights Campaign, the largest LGBTQ advocacy organization in the U.S., endorsed Flanagan’s re-election campaign for lieutenant governor alongside Tim Walz, calling the duo “Champions of Equality.”
Flanagan called the race an expensive fight of the “many versus the money,” Flanagan told NBC News’ “Meet the Press Now.” Craig and her allies combined to spend nearly $20 million on the airwaves, while Flanagan and her allies spent $4.7 million, according to AdImpact and NBC.
“I’m running to make sure that people can afford the lives they want to live,” Flanagan said. “I want to get big money out of our politics, and I want to fight for things like ‘Medicare for All’ so that people aren’t just paying for health insurance but actually have access to health care.”
Flanagan criticized Craig, who is in her fourth term, for not standing up enough to President Donald Trump’s administration, a characterization Craig disputed. Craig flipped a competitive House seat in the Twin Cities metro area and had argued that she was the best candidate to win in November.
Craig faced criticism for voting for the Laken Riley Act, an immigration detention measure that Trump signed into law shortly after he started his second term in January 2025. Craig said she later regretted that vote.
Flanagan has been vocal about her stance on abolishing U.S. Immigration and Customs Enforcement. In a recent Minnesota Public Radio debate she said that ICE “has to be ripped apart.” Flanagan said she does support immigration enforcement to ensure secure borders.
Immigration and ICE debates are especially pertinent in the Twin Cities, as ICE agents fatally shot two U.S. citizens, Renee Good and Alex Pretti, in Minneapolis during an enforcement crackdown at the behest of President Trump.
Despite the contested race, Craig made it clear that Democrats are committed to unifying.
“We have an existential crisis in our nation with Trump and Republicans, and so I would be right by the lieutenant governor’s side asking my supporters to support her,” Craig said. “The most important thing in this election is that we beat Republicans. That’s what matters.”
On the Republican side, former NFL sideline reporter Michele Tafoya won the Senate primary. Considered an outsider to the Republican Party structure, she did not win the state GOP’s endorsement at the May convention, where delegates instead backed retired Navy SEAL Adam Schwarze.
She has run her campaign on a slew of issues Republicans have deemed worthy — including transgender sports participation, corruption, and minimizing illegal immigrants in the area.
This recent pattern of moderate and centrist Democrats raising huge funds — in many instances backed by major PACs — only to lose to more progressive and less experienced candidates is growing as more people grow disillusioned with the Democratic Party’s inability to push back against Trump and Republicans. A similar outcome happened in Michigan’s Democratic primary last week when progressive physician Abdul El-Sayed won over incumbent U.S. Rep. Haley Stevens (D-Mich.).
Democratic Gov. Tim Walz, who decided not to run for re-election, stayed neutral in the Senate primary but his wife, Gwen, backed Craig over Flanagan, the governor’s ticketmate.
The Senate seat will be determined in the election on Tuesday, November 3, later this year.
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