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.
Opinions
Pro-trans court ruling does little for Naval healthcare worker
Trump administration should support accomplished service members
Following the start of the Iran war, many Americans were worried for the first time in decades about a potential draft. When asked about the possibility, White House Press Secretary Karoline Leavitt noted that it was not part of the current plans but that, “The president wisely keeps his options on the table.”
While the Trump administration did not rule out the option to conscript unwilling young citizens, it had no problem alienating willing service members, removing high-ranking female or African-American officers, and banning transgender people from serving in the military, stating that “a history of gender dysphoria is incompatible with the high physical, surgical, and mental health standards required for military service.”
The decision to discharge thousands of service members who have already proven their dedication and efficacy in serving their country, simply because of their gender identity, seems counterintuitive for a nation that has just struggled through a war, a regression toward a long past of discrimination in our military, and a ruling that has been questioned in judicial systems.
On June 1, the U.S. Court of Appeals for the D.C. circuit issued a decision blocking the government from discharging 28 transgender plaintiffs from the military (Talbott vs. United States), calling the policy “animus” toward a politically unpopular group. News outlets reported it as a win for LGBTQ rights, but that hardly seems to matter for the close to 15,000 other transgender military service members who have either already been separated or constantly fear that they will soon be removed.
I interviewed a recently separated transgender Naval healthcare worker for this editorial, who used the initial S. for anonymity and who told me that hearing the news of the Talbott court decision was more bitter than sweet, remarking, “While the recent ruling in favor of trans service members offers fleeting hope, Department of Defense Secretary Pete Hegseth has already announced the decision to appeal to the Supreme Court, where we will likely expect the same outcome as before. Unfortunately, any definitive outcome in favor of trans service members will likely come long after the damage has been done.”
Studies by the RAND Corporation have found that transgender military service showed no significant impact on operational readiness, and according to the BBC, the Department of Defense spends eight to 10 times more on erectile dysfunction drugs than on gender-affirming care.
S. served a critical role in the Navy, as active-duty service members are far more likely to experience mental health challenges than the civilian population, and it doesn’t sound like his gender identity was a problem for any of his coworkers: “Everyone judged me by my ability, not my identity; most of them didn’t know that I was transgender until the separation process forced my public acknowledgement.”
Dedicating years of his life to serving his country, not only did S. lose that dream, but it also impacted his entire caseload of clients. “One by one, I had to meet with them and explain that I was abruptly leaving the clinic and ultimately separating from military service. It was death by a thousand cuts—having to tell people back-to-back, session after session, that I could no longer work with them. Many of them were in the midst of their own crises while I was quietly navigating mine. It was heartbreaking.”
He also spent 11 months in a state of limbo, waiting to be officially separated – having secured a job at another federal agency and beginning to treat new patients, the Department of Defense rescinded its approval, citing that you cannot work at two federal agencies at once, and effectively sidelined a critical health care worker until they could formally discharge S. from the Navy.
The irony of citing mental health standards to remove a Naval healthcare worker in good standing, at a time when many personnel are in dire need of clinical care is notable. To maximize operational readiness, the Trump administration should not turn its back on accomplished service members who hold critical roles in the military.
Tyler Kania is an independent journalist and 2025 IAN Book of the Year finalist.
Opinions
Supreme Court ruling on trans athletes is a public health story
Justices label an entire group as ‘lesser’
On June 30, the Supreme Court ruled, 6-3 that states may bar transgender girls and women from girls’ and women’s sports teams. Justice Brett Kavanaugh wrote that states may keep these teams for “biological females” and set eligibility by “biological sex.” The country will now spend days arguing about fairness on the field. We’ll debate race times, records, and who has earned a place on the roster.
I want to redirect this conversation, because I study something different and because the frame we’ve settled on misses the something important.
I’m a public health researcher. My work focuses on how the conditions people live under get into the body and influence health over a lifetime. I’m talking about conditions such as laws, policies, and the everyday climate of acceptance or rejection.
Two features of this ruling deserve more attention than the sports fight is giving them: the lifelong costs even a “narrow” decision sets in motion, and the question the Court declined to decide.
Start with how a ruling like this reaches the body, because that pathway is what makes this a public health story. My area of research has a name for what laws like this do: structural stigma. It’s the way statutes and court rulings can mark an entire group as lesser, and in doing so become a chronic stressor for every member of that group.
The overwhelming majority of transgender kids will never compete for a state title. They still learned, from the highest court in the country, that their belonging is conditional. The stress that follows from that lesson is associated with higher rates of depression, anxiety, and poorer health across LGBTQ populations. A consistent finding in this literature is that social acceptance can disrupt such harmful trajectories. But this ruling pushes the country the other way.
I want to emphasize that the question of fairness is important, and the girls and women who raise it deserve to be heard. But the ruling does not resolve this question. It flattens it.
The science on athletic performance and gender transition is truly complicated and individual. It varies by sport, by person, by age, and by life circumstance. The Court grounded its decision in biological sex and then declined to reckon with what biology shows. The West Virginia teenager at the center of the case has been on puberty blockers since before male puberty began. The advantage the law claims to police never developed in her. A rule that treats her like an adult athlete disregards biology.
Here is the part a policy-minded reader should pay attention to. For decades, the central legal question about transgender Americans has been this: When the government treats transgender people differently, how good does its reason have to be? Courts don’t judge all discrimination in the same way. If a law sorts people by race or sex, the state must provide a strong justification, and many such laws fail. But if a law tries to draw an ordinary distinction, like who qualifies for a license, judges tend to wave it through as long as there’s a reasonable purpose. Whether a law singling out transgender people gets the skeptical look (what lawyers call heightened scrutiny) or the easy pass has not been settled. And this ruling, despite its subject, still did not settle it.
How did the Court avoid the question its own case raised? Following last year’s decision in Skrmetti (the gender-affirming care case), the Court described these laws as drawing lines by biological sex, not transgender status. Courts endorsed sex-separated teams long ago; separate teams are the reason girls’ sports exist. So a law framed as a “sex” line lands on ground the courts have already approved, while a “transgender” line would have forced the choice between the skeptical look and the easy pass. The Court chose the frame that let it stay silent.
That silence creates exposure for transgender people – and I mean that word the way my field of public health uses it, for a condition that puts a whole population at risk. The same unanswered question now hangs over health care, employment, identification documents, public accommodations, and every domain where the level of scrutiny is the whole ballgame. And the Court read Title IX, the federal law banning sex discrimination in schools, through the same lens: “biological sex,” full stop. Advocates are right to see protections far beyond sports as newly vulnerable.
This is where my own research makes me most uneasy. I study LGBTQ adults in their 60s, 70s, and 80s, who came of age in a far more hostile America. Their lives show that the cost of stigma accumulates. Chronic stress works its way under the skin and surfaces years and decades later. Researchers see these deleterious outcomes in mental health, in physical health, and in emerging research like my own that explores the aging brain. So we should understand this decision for what it is: a long-term health decision the country is making on behalf of a generation of children.
Practically, the ruling compels no state to do anything. It tells the more than two dozen states that have passed these bans that they stand on solid ground, and it sends the rest of the fight back to statehouses and school boards, where trans youth and their families often hold little power. The ruling arrives just over a year after the Court let states ban the medical care many of these same young people depend on. Each law is a single stressor. Together they are a dangerous environment.
We know what protects these children. Acceptance, inclusion, and the dignity of being treated as though they belong. The Court made all three harder to offer, and left open the question that determines how much harder it can get. It is the children who needed those protections who will bear the cost, this sports season and for the rest of their lives.
Harry Barbee, Ph.D., is an assistant professor at the Johns Hopkins Bloomberg School of Public Health where they study LGBTQ health, aging, and public policy.
Opinions
It’s good to see some justices standing up to Trump
But expanding the court is necessary to save our democracy
It was shocking to see some of the MAGA-loving majority on the Supreme Court actually voted against the felon in the White House a couple of times. Not surprisingly, Samuel Alito and Clarence Thomas were steadfast in their ultra-MAGA, outrageous views. They just want to help make Republican doctrine, which today means helping to make Project 2025 a reality, a success. They couldn’t care less about the Constitution. We can just imagine how they voted on the E. Jean Carroll case, where Trump has been trying to weasel out of his obligation to pay the woman he was convicted of committing sexual assault against. But we won’t know for sure since the Court simply denied hearing the case, so there was no recorded vote or dissent.
On what was a simple case, the constitutional principle of birthright citizenship, Chief Justice John Roberts, Amy Coney Barrett, and Brett Kavanaugh, actually voted to uphold the Constitution along with the three liberal justices, Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson. But even then, Kavanaugh was only halfway there. But as could have been predicted, Alito and Thomas voted the other way, and this time were joined by Neil Gorsuch. Then on the question of trans women playing sports on a women’s team, the vote was 6-3 against, and you can figure out who the three were who went against the felon, and supported the women.
Interestingly, in the case of Mississippi and mail-in ballots, allowing those mail-in ballots to be counted up to five days after the election if they were postmarked by Election Day, Roberts and Coney Barrett went with the liberals. Once again, you knew before the vote where Alito and Thomas were, and in this case, they were joined by Kavanaugh and Gorsuch, trying to help Republicans steal the next election.
I have no love for Roberts, but it seems every so often he is trying to save his own reputation since all this is the Roberts court, as he is the chief justice. I have never known what to make of Coney Barrett, who has occasionally sided with the more liberal justices, to the consternation of Trump, who believed when he nominated her, she would always be with him. She mostly has, and he can be thankful she voted with the other slime bags, and granted him total immunity as president in the 2024 decision. In essence, placing him above the law. In so many ways the felon has acted using that immunity. We now see a blatant case of this with the release of his new financials, and his $2 billion windfall with crypto.
Roberts nearly always votes with the Trump judges, but if there is a decision that is so obviously a gift to the felon, Roberts every once in a while could go with the liberal wing of the court. We need to remember he was appointed by George W. Bush. But again, this court will always be known as the Roberts court, the one that bowed down to the felon in the White House, and his fascist aids like Stephen Miller, and the author of Project 2025, Russell Vought, at OMB.
So, what can we do to change this, and to fight back? The first thing is to elect a Democratic Congress in 2026, and then a Democratic president in 2028. Then those we elect will have to decide how to proceed. One answer to that question is simple. Vote to add more justices to the Supreme Court. That simply requires a bill to pass with a majority in both houses of Congress, and the president’s signature. To the surprise of many it has been done seven times since the court was created in 1789. There is no number of justices for the court stipulated in the Constitution. Yet it has remained at nine since 1869. Although that fix may sound easy if Democrats take over Congress and the White House, we must remember, Franklin Roosevelt tried in 1937 to expand the court by six justices to protect his New Deal programs. After a fight that lasted 168 days, the bill to do this was defeated. I fear any proposal to expand the court today, may actually have the same fate. There will be those who say it will divide the nation even further, and there will be a constant tit-for-tat on everything. The only way to win such a vote will be if enough people are convinced the felon and his gang of thieves, have so destroyed our democracy, that changing the court is a necessity if we are to save our democracy for the next 250 years.
Peter Rosenstein is a longtime LGBTQ rights and Democratic Party activist.
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