Opinions
Supreme Court considers taking marriage cases
‘We are better people than what these laws represent’

(Washington Blade file photo by Michael Key)
The United States Supreme Court is scheduled to discuss seven petitions from five different states today urging the Court to decide the constitutionality of state laws excluding same-sex couples from marriage on a nationwide basis. The Supreme Court has complete discretion over whether or not to take a case. And no one knows if the Court will decide whether to take any of the cases at this time or defer its decision until a future conference this fall. Indeed, the Court will have a lot to cover at its first conference with 53 petitions in other cases on its schedule as well. However, we could learn possibly as early as Tuesday whether the Court will take up the issue of the freedom to marry nationwide this term, with a substantive, definitive decision likely in June 2015.
The momentum toward marriage equality in the courts has accelerated at breakneck speed in the just over a year since the Supreme Court’s landmark decision in United States v. Windsor invalidated Section 3 of the misnamed “Defense of Marriage Act,” a statute that prohibited the federal government from recognizing the marriages of same-sex couples validly performed in states with marriage equality. Since Windsor, 27 federal courts have found state bans to be unconstitutional, with only one lower federal court upholding such a ban. Significantly, all four federal appellate decisions, from which the seven petitions to the Supreme Court come, favor equality. Judges ruling for the freedom to marry include appointees of Presidents Carter, Reagan, G.H.W. Bush, Clinton, G.W. Bush and Obama. Federal District Judge Richard Young of Indiana described in his ruling the winning streak as a phenomenon “never” before “witnessed … throughout the federal court system ….” Similarly, 13 state courts have ruled in favor of marriage equality, with only one opposed.
The petitions before the Supreme Court arise out of federal appeals court decisions striking down five states’ marriage bans: Indiana (7th Circuit), Oklahoma (10th Circuit), Utah (10th Circuit), Virginia (4th Circuit), and Wisconsin (7th Circuit). All of the cases present the issue of whether or not a state may prohibit same-sex couples from marrying. However, the cases differ as well, and the justices likely will be considering these differences in determining which case or cases to take. Attorneys for same-sex couples in each of the cases have argued the particular circumstances of their individual cases make them desirable for review.
One difference in the cases is that the Oklahoma case raises only the issue of whether a state may ban same-sex couples from marrying under its state laws, while the other states’ cases also involve challenges to whether a state must recognize the marriages of same-sex couples validly married in other states. If the Supreme Court were to strike down state marriage bans nationwide, the Court would not need to decide if and when one state must recognize marriages performed in other states. Alternatively, if the Court declined to decide the issue nationwide or upheld state marriage bans, the issue of recognition of out of state marriages could be very important.
The various states’ laws at issue in the petitions also differ. For instance, Wisconsin permits same-sex couples to enter into domestic partnerships, affording them limited legal rights, while the other states with petitions before the Court do not. The wording of the marriage bans and the history of the political campaigns to pass them vary from state to state. Procedural histories of the cases differ as well. For instance, in Virginia, the Attorney General, representing the state defendant agrees that the ban is unconstitutional, and local county clerks are defending the state ban. In the other states, the state has uniformly defended the bans. The attorneys in each case differ, too, and include lawyers from groups who have been advocating for LGBT equality for decades, such as the National Center for Lesbian Rights, Lambda Legal, Gay and Lesbian Advocates and Defenders, and the ALCU.
The legal bases for striking down the bans also differ between the various federal appellate decisions before the Court. The appellate courts in the Oklahoma, Utah, and Virginia cases invalidated those state bans on the grounds that that they violated same-sex couples’ “fundamental right to marry,” while the appellate court in the Indiana and Wisconsin cases struck down those states’ bans on the grounds that laws that discriminate on the basis of sexual orientation are entitled to elevated scrutiny under the Constitution. Windsor held that DOMA violated the Constitution’s guarantees of both liberty and equality. Both issues, and very possibly whether the bans constitute unlawful sex discrimination, will doubtlessly be argued before the Court regardless of which case or cases it takes. However, the Justices may consider the logic or rationale of one or more of the appellate court decisions particularly useful for review.
Two additional federal appellate circuits will likely weigh in this fall as well. The Sixth Circuit heard cases arising out of marriage bans in Kentucky, Michigan, Ohio, and Tennessee in early August, and the Ninth Circuit heard cases from Idaho and Nevada in early September. From relevant circuit court precedent and the questions and comments the judges made at oral argument, most observers believe the Ninth Circuit will very likely rule in favor of equality, but the outcome of the Sixth Circuit cases is much harder to predict.
In remarks last week at the University of Minnesota, Justice Ruth Bader Ginsburg fueled speculation that the Court might wait to determine whether or not to take a case until the Sixth Circuit rules. She stated that there would be “no need for [the Supreme Court] to rush” if the Sixth Circuit ruled in favor of the freedom to marry, as all the other circuits who have addressed the issue since Windsor have. However, she said that a Sixth Circuit ruling against equality would create “some urgency” for the Court to step in. The Supreme Court often takes cases to resolve disputes among the circuits.
Further, the Supreme Court will take a case if four of the nine justices vote to hear it. The Supreme Court has stayed decisions in the Fourth, Seventh, and Tenth Circuits from taking effect until final resolution of the cases. If the Sixth and Ninth Circuits were also to rule in favor of equality, most observers believe it unlikely that the four justices who dissented in Windsor would simply let all the petitions be dismissed by voting to deny review — effectively permitting marriage equality in 20 additional states located in those circuits. But if the Supreme Court held the petitions until a circuit court ruled against the freedom to marry, many thousands of LGBT Americans could have to wait even longer for a decision. Regardless of how the Sixth Circuit rules, the issue of marriage equality is, in fact, “urgent,” for LGBT Americans, many of whom have been together for decades without legal recognition and protection.
Many of us would love to be a proverbial “fly on the wall” at the justices’ conference chamber, but we will of course have to wait until the Court makes public its decisions from the conference either later this week or on Oct. 6, the official beginning of the new term. Federal District Judge John E. Jones III, a George W. Bush appointee, wrote in his opinion, invalidating Pennsylvania’s marriage ban: “We are better people than what these laws represent, and it is time to discard them into the ash heap of history.” That time cannot come too soon.
John Lewis is legal and policy director for Marriage Equality USA.
I was disappointed when the Blade didn’t publish my response to a personal attack on me in a column by Hayden Gise, in last week’s print edition. They did publish it online. To be clear, I have no problem with people disagreeing with my columns and opinions. That is absolutely fair. But when they get into personal attacks, it often means they don’t have enough to say about the ideas they are trying to criticize.
In a recent column ‘Why the Democratic Socialists of America are right for D.C.,’ the author decided to attack me personally. Here is the response I wrote to her column:
“I am responding to a column by Hayden Gise who says in her column she is a transgender, lesbian, Jewish, Democratic Socialist, and supports having the Democratic Socialists of America (DSA) in Washington, DC. She is definitely as entitled to her view on this, as I am to mine. However, I was surprised she clearly felt it important to use the column to attack me personally, without even knowing me. What she didn’t do is respond to the issues in the DSA platform I wrote having a problem with, and which I asked candidates endorsed by the DSA to respond to. 1. Are they for the abolishment of the State of Israel? 2. What is their definition of a Zionist? 3. What is their definition of antisemitism? 4. Will they meet with Zionist organizations? 5. Do they support BDS? One needs to know when a candidate claims they are only a member of the local DSA, according to the DSA bylaws no person can be a member of a local DSA without being a member of the national organization. So Hayden Gise has a little better idea of who I am she should know: I was a teacher and a union member. I worked for the most progressive member of Congress at the time, Bella S. Abzug (D-N.Y.), and supported her when she introduced the Equality Act in 1974, to protect the rights of the LGBTQ community, and have fought for its passage ever since. I have spent a lifetime fighting for civil rights, women’s rights, disability rights, and LGBTQ rights. I have no idea what Hayden Gise’s background is, or what her history of working for the causes she espouses is. But I would be happy to meet with her to find out. But she should know, I take a back seat to no one in the work I have done over my life fighting for equality, including economic equality, for all. So, I will not attack her, as I don’t know her, and contrary to her, don’t personally attack people I don’t know much about.
“I have, and will continue to attack, what the government of Israel is doing to the Palestinian people, and now to those in Lebanon and Iran. I will also attack the government of my own country, and the felon in the White House, and his sycophants in Congress, for what they are doing to our own people, and people around the world, and will continue to work hard to change things. However, I will also continue to stand for a two-state solution with the continued existence of the State of Israel, calling for a different government in Israel. I also strongly support the Palestinian people and believe they must have the right to their own free state.”
I have not heard from Gise, but I hope she knows that since she wrote her column indicating her support for Janeese Lewis George for mayor, her preferred candidate has attended a birthday party to celebrate a person who still refers to gay people as ‘fags.’
We should not personally attack people we don’t know as a way to criticize their views on an issue. Once again, I have no problem with people disagreeing with what I write, and having the Blade publish those contrary columns. But a plea to all who disagree with any columnist, or story: disagree with the issues and refrain from making personal attacks on the writer. That actually takes away from whatever point you are trying to make.
Peter Rosenstein is a longtime LGBTQ rights and Democratic Party activist.
Imagine if researchers found that coffee drinking increased your risk of death by more than 50%. The public health response would be immediate – regulations, warnings, a swift mobilization of policy to match the evidence. We would act, because protecting people from documented harm is what evidence-based policy exists to do.
The same logic is why Colorado banned conversion therapy. The science was clear: research from The Trevor Project and others shows that exposure to conversion therapy increases suicidal ideation among LGBTQ+ youth, and more than doubles suicide attempts for transgender youth. Every major medical organization in the country – the American Medical Association, the American Psychological Association, and the American Academy of Pediatrics – has condemned the practice.
Colorado looked at the evidence and did what public health is supposed to do. It intervened.
On March 31, 2026, the Supreme Court struck down that intervention 8-1 in the Chiles v. Salazar case, ruling that conversion therapy is protected speech.
This decision should alarm anyone who believes that science has a role in protecting human lives. The court did not dispute evidence. It did not produce contradicting research or question the methodology of the studies Colorado relied on. Instead, it decided that the ideological underpinnings of conversion therapy deserve more constitutional protection than the children being harmed by it. In doing so, it severed the fundamental link between what science tells us is dangerous and what the law is willing to prohibit.
That severance has consequences far beyond Colorado, as Supreme Court Justice Ketanji Brown Jackson noted in her dissent. More than 20 states and Washington, D.C. have enacted conversion therapy bans. The court majority’s reasoning – that regulating talk-based practices constitutes censorship – hands challengers a blueprint. The scientific consensus that built those protections did not change on March 31, but its power to hold them in place did.
For LGBTQ+ public health researchers like us, this ruling is a reckoning. And a personal one. Both of us came to public health because it offered a way to ask questions that matter: How can we help people live safe, healthy, and happy lives?
As a Ph.D. student and an assistant professor focused on LGBTQ+ health, we have been energized by the possibility that rigorous research could inform policies that protect LGBTQ+ people. The Chiles v. Salazar ruling forces us to recognize something uncomfortable: the possibility of research driving policy is real, but it is not automatic. Evidence reaches policy only when researchers advocate to put it there. As it turns out, scientific evidence itself is not enough.
This means the work of LGBTQ+ health researchers cannot stop at the journal article. It has to extend into the spaces where policy is actually made and public opinion is actually influenced. Researchers must work alongside educators, communicators, and community organizers to make evidence impossible to ignore or misrepresent.
As Sylvia Rivera observed in 1971, “our family and friends have also condemned us because of their lack of true knowledge.” More than 50 years later, misinformation about conversion therapy, gender-affirming care, and LGBTQ+ health still fills the gap that researchers leave when they stay silent.
We also want to say this directly to LGBTQ+ young people: Science has not abandoned you. The evidence of your worth, your health, and your right to be protected is overwhelming and it is not going anywhere. The researchers, clinicians, and advocates who built that evidence are still here and still working to ensure it translates into the protection you deserve.
The Chiles v. Salazar ruling is a serious setback. But it is not the end of the argument.
Science has shown us how conversion therapy causes harm. It has shown us clearly, repeatedly, and with the backing of every credible medical institution in the country. The Supreme Court chose to look away. The only response to that is to make looking away harder. To build a public, cross-sector, science-informed movement that refuses to let evidence be sidelined when lives are on the line.
The evidence is on our side. Now, we have to make sure it counts.
Vincenzo Malo is a Health Services Ph.D. student at the University of Washington’s School of Public Health who studies affirming health systems. Dr. Harry Barbee is an assistant professor in the Johns Hopkins Bloomberg School of Public Health whose research focuses on LGBTQ+ health, aging, and public policy.
Eswatini
The emperor has no clothes: how rhetoric fuels repression in Eswatini
King Mswati III’s anti-LGBTQ comments can have deadly consequences
In an absolute monarchy, the words spoken by the sovereign can swiftly become a baton striking a citizen. When King Mswati III speaks, his words do not simply drift into the air as political “opinion”; they often quickly turn into, sometimes violently, state policy. This reflects the reality of Eswatini, where the right to freedom of expression, including the right to hold dissenting political views, is increasingly being systematically eroded by the very voice that claims to uphold “traditional values.”
To understand the current crisis facing the LGBTIQ+ community in Eswatini, one must view it through the lens of a broader strategy: the weaponization of culture to justify the erosion of democratic institutions, the rule of law, and human rights protections. As observed across Africa, from the streets of Harare and Dar es Salaam to the parliamentary courtrooms of Dakar and Kampala, African leaders are increasingly using the marginalised as an entry point to dismantle civil society. In Eswatini, this strategy has manifest its most brutal expression in the king’s recent harmful rhetoric concerning sexual orientation and gender identity.
The danger of the king’s words lies in how the state apparatus interprets them as a divine mandate for persecution. Recently, we have seen this “Rhetoric-to-Policy Pipeline” operate with chilling efficiency. Shortly after the Minister of Education made public vitriol against the existence of LGBTIQ+ students, reports emerged of children being expelled from schools. In a country where the king is culturally and traditionally called the “ingwenyama” (the lion), the bureaucracy acts as his pride; when leadership suggests that a particular group is “un-African” or “deviant,” the machinery of the state, along with the emboldened segments of the public, moves to purge that group from society.
For an openly gay man who has dedicated most of his adulthood to advancing equality and dignity for all, especially marginalized communities, these are not merely policy changes; they pose existential threats. When a powerful leader speaks, they offer a moral shield for the dogmatist and a legal roadmap for the policeman. In Eswatini, where political parties are banned, and the “tinkhundla” system (constituency-based system) — a system that systematically silences dissent and favors those aligned with the sovereign — is celebrated as the sole “authentic” form of governance, any identity that falls outside the narrow, state-defined “tradition” is seen as treason. By branding LGBTIQ+ rights as “ungodly” and essentially unwelcome in Eswatini, the monarchy effectively views the mere existence of queer Swazis as a subversive act against the crown.
The most harrowing example of this pattern is the assassination of human rights lawyer Thulani Maseko in January 2023. Maseko’s murder did not happen in isolation. It followed a period of heated rhetoric directed at those calling for democratic reforms. The king had publicly warned those demanding change that they would face consequences. On the evening after the king had said, “[t]hese people started the violence first, but when the state institutes a crackdown on them for their actions, they make a lot of noise blaming King Mswati for bringing in mercenaries,” Maseko was shot dead at his home in front of his family.
The parallel here is unmistakable. When the king targets the LGBTIQ+ community with his words, he is aiming at the most vulnerable. If a world-renowned human rights lawyer can be silenced following royal condemnation, what chance does a queer youth in a rural area stand when the king’s words reach the local chief or school head? This is what I call “Chaos as Governance”: a state where the law is replaced by the monarch’s whims, leaving the population in a constant cycle of managed chaos that renders collective opposition nearly impossible. Despite strong condemnation from the organization I founded, Eswatini Sexual and Gender Minorities (ESGM), recent reports already suggest growing support for the rhetoric shared by the king, indicating treacherous weeks and months ahead for ordinary queer people in Eswatini.
The monarchy’s defense of these actions is almost always based on “African tradition.” As Mswati has shown, the ban on political parties and the suppression of minority rights are framed as a return to indigenous governance, the “tinkhundla” system. But we must ask: whose culture is being defended? Is it a culture that historically valued communal care and diverse social roles, or is it a modern, imported authoritarianism cloaked in the robes of the ancestors?
When he uses his platform at the “sibaya” (traditional gathering) to alienate a segment of his own people, he is not engaging in dialogue; he is delivering a monologue of exclusion. This weaponized version of culture serves a dual purpose. First, it offers a “neocolonial” defense against international criticism, portraying human rights as a foreign threat. Second, it creates an internal enemy, the “terrorist” political dissident or the “immoral” LGBTIQ+ person, to distract from the fact that nearly two-thirds of the population live below the poverty line. In contrast, the royal family resides in obscene luxury, acquiring fleets of expensive vehicles.
The silence of Eswatini’s neighbors worsens its situation. The Southern African Development Community (SADC), a regional organization ostensibly committed to democracy and human rights, has repeatedly allowed Mswati to evade accountability. By agreeing to remove Eswatini from the Organ Troika agenda at the king’s request in 2024, SADC sent a message to every authoritarian in the region. If you conceal your repression behind the guise of tradition, we will not intervene.
The call for freedom of expression, including LGBTIQ+ rights, is a fundamental human right vital for safety and dignity. It demands that a child should not be expelled from school because of who they are. It insists that a lawyer should not be murdered for expressing their beliefs. It states that a king’s word should not be a death sentence. We must resist the “politics of distraction” that portrays the fight for minority rights as separate from the fight for democratic reform. The dissolution of political parties in Burkina Faso, the attack on lawyers in Zimbabwe, and the criminalization of advocacy in Senegal, Tanzania, and Uganda are all parts of the same pattern. They reflect a leadership class that fears its own people.
It is time for the African Union and SADC to decide whether to uphold the ideals of their lofty charters or to prioritize political convenience across Africa. For the people of Eswatini, improving livelihoods and human development can only occur when the king’s words are limited by a constitution that protects every citizen, regardless of whom they love or how they pray. Until then, the chaos is not a failure; it is the purpose. The monarch’s word may be law today, but the universal right to dignity is the only law that will endure. We must demand an Eswatini, and by extension, an Africa that seeks to improve the lives of its people, and where the “lion” protects all his people, rather than hunting those he deems “unworthy” of the shade.
Melusi Simelane is the founder and board chair of Eswatini Sexual and Gender Minorities. He is also the Civic Rights Program Manager for the Southern Africa Litigation Center.
