National
Gay advocates assail Obama’s Justice Department
Claim administration misrepresented views in ‘Don’t Ask’ brief
Experts on “Don’t Ask, Don’t Tell” are lambasting the Justice Department, claiming the administration misrepresented their views in a legal brief aimed at thwarting a court challenge to the ban on open service.
Nathaniel Frank, a senior fellow at the Palm Center, a think tank at the University of California, Santa Barbara, said the Obama administration mischaracterized his views on the impact that open service would have on privacy issues.
“The way they portrayed me is preposterous and I’m not sure that any person in good faith hearing what I had to say could conclude what the [Department of Justice] concluded in their [request for] summary judgment,” he said. “I specifically said having a concern about privacy is not irrational, but using that privacy concern as an argument for the need to ban gays is irrational.”
Aaron Belkin, director of the Palm Center, similarly claimed the Justice Department misrepresented what he said in depositions about privacy arguments, and even went so far as to say the Obama administration lawyers weren’t being truthful.
“They completely misrepresented my statement in the deposition,” Belkin said. “They were not being truthful about my statement because they said that I claimed that there is a rational basis for the privacy arguments, and I claimed no such thing.”
In a request for summary judgment released earlier this week, the Justice Department names Frank and Belkin as among the experts on “Don’t Ask, Don’t Tell” who gave depositions in the case of Log Cabin v. United States. The lawsuit seeks to overturn the ban on the basis that it infringes upon the First Amendment rights of LGBT service members.
Both Frank and Belkin were questioned during deposition about whether privacy concerns for service members constituted a rational basis for the enactment of “Don’t Ask, Don’t Tell” in 1993.
The brief says Frank “acknowledged” during his deposition that “privacy concerns such as those on which Congress relied were not irrational.” But Frank disputed this characterization, pointing to his remarks during deposition.
According to an excerpt of the deposition obtained by DC Agenda, Frank was asked about privacy issues in the context of whether former Chairman of the Joint Chiefs of Staff Gen. Colin Powell’s statement in 1993 that service members “are required to live in communal settings that force intimacy and provide little privacy” was based on professional military judgment.
Frank replied that Powell — whose position has since evolved to endorse the Pentagon’s process for repealing the law — may have had concerns with privacy as a general matter based on professional judgment, but said Powell’s statement doesn’t “constitute an argument for keeping out open homosexuals.”
“Because what he says here is that service members are required to serve with very little privacy, so it doesn’t make any sense to me to conclude from that that there is a justification to exclude open homosexuals since he’s just acknowledged that part of being in the military means sacrificing privacy,” Frank said in his deposition.
It’s for this reason that Frank is now saying the Justice Department misrepresented his views in the brief against the lawsuit.
“So I really said the opposite of what the DOJ motion claims,” he said. “I made very clear that I would not call those feelings [about privacy] irrational, but nor would I call it rational to use that feeling as a legitimate basis for excluding a whole group of people. And that’s all there in the record.”
Belkin similarly cried foul, claiming the Justice Department mischaracterized his deposition in the brief. The administration says that Belkin testified that “the privacy basis is rational in circumstances such as combat where private accommodations are not possible.”
“Dr. Belkin studied the experience of the Israeli military and found that heterosexual concern about privacy necessitated, in certain instances, separate accommodations or work arrangements for heterosexual service members,” says the brief. “Dr. Belkin also acknowledged similar findings with respect to Congress’ concern regarding sexual tension within the military.”
According to the brief, Belkin also “pointedly admitted” people in the military have sex with each other, and some service members have “sex with other members of the same sex.”
But Belkin said the Justice Department’s account of his deposition and his alleged acknowledgement of a rational basis for privacy concerns was completely off the mark.
“People who defend ‘Don’t Ask, Don’t Tell’ for almost 20 years have been confusing up with down and left with right,” he said. “If the Obama administration lawyers think that my remarks in any way constitute an acknowledgement of the rational basis for the privacy rationale, then they need a new legal team.”
Belkin said the Justice Department neglected to mention major points about his deposition. He said he brought up men having sex with other men because he believes straight men would be having sex with men in the military regardless of the ban.
“Think for a minute about prisons,” he said. “It’s not exactly the same, but the point is not that gays are responsible for gay sex, but a lot of people have same-sex sex in the military and the privacy rationale does not take that into account. The privacy rationale is premised on the assumption that it’s only gays who having sex, so you have to get rid of the gays if you want to get rid of that kind of thing.”
Belkin also said the Justice Department misconstrued his take on there being a rational basis for “Don’t Ask, Don’t Tell” because some straight service members are uncomfortable around gay service members.
“It’s absolutely true that some heterosexual service members are uncomfortable in front of gay service members, but that in no way constitutes a rational basis for the privacy rationale because gays and lesbians are already serving with straight service members — and the conditions in the barracks and the showers are not going to change after the repeal of the ban,” he said.
The Justice Department didn’t respond to a request for comment on Frank and Belkin’s assertions that they were mischaracterized in the brief.
Frank also took issue with the Justice Department’s repeated references to experts on “Don’t Ask, Don’t Tell” with the use of quotation marks.
For example, the brief says in a footnote that “LCR’s ‘experts’ ultimately seek to challenge the wisdom of the DADT policy, a challenge that is irrelevant under rational basis review.”
Frank said the repeated reference to experts in quotation marks is “highly unusual” for the Justice Department and “may have gone too far.”
“That’s a favorite tactic of the religious right to polish their anti-intellectual credentials, and make it seem like there’s no such things as a homosexual, so they’ll put homosexual in quotes,” he said.
The Obama administration defense of the “Don’t Ask, Don’t Tell” statute against the challenge from Log Cabin is causing consternation among advocacy groups seeking to repeal the law.
Joe Solmonese, president of the Human Rights Campaign, said “we took a step backward” with the Justice Department brief in the move to repeal “Don’t Ask, Don’t Tell” and that the brief “relies on arguments that were debunked and discredited in 1993, and even more so now.”
Solmonese also called on the administration to “show leadership, move the debate forward, and work with Congress to get repeal done” this year.
“While the Pentagon undertakes its review of how to implement repeal, Congress can and must move forward in repealing DADT in the same bill that put it into law more than 17 years ago — the defense authorization act,” he said. “And the president can and must provide the leadership necessary to get the law passed this year.”
Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network, expressed similar disappointment in a statement responding to the brief.
“SLDN understands the Justice Department’s role in defending the constitutionality of federal laws, even ones with which its leaders do not agree,” Sarvis said. “However, there continues to be a big and unnecessary disconnect between what DOJ files in court and what the president says on Capitol Hill and to his top [Department of Defense] leadership team.”
Sarvis said he wants the White House to make clear to Congress that “Don’t Ask, Don’t Tell” is a priority this year for President Obama and for the president to include repeal language in budget language headed to Capitol Hill in the coming weeks.
“The president’s defense budget repeal language should mirror the words in his State of the Union speech to Congress and the American people,” Sarvis said.
In a statement, Tracy Schmaler, spokesperson for the Justice Department, said the administration is defending “Don’t Ask, Don’t Tell” as “it traditionally does when acts of Congress are challenged.”
“The department does not pick and choose which federal laws it will defend based on any one administration’s policy preferences,” she said.
Schmaler said Obama disagrees with the underlying judgments Congress used to pass “Don’t Ask, Don’t Tell,” and noted that the president “believes and has repeatedly affirmed that [‘Don’t Ask, Don’t Tell’] is a bad policy that harms our national security and undermines our military effectiveness.”
“The president and his administration are working with the military leadership and Congress to repeal this discriminatory [law],” she said.
Erica Deuso will become the first openly transgender mayor in Pennsylvania.
Voters in Downingtown elected Deuso on Tuesday with 64 percent of the vote, according to the Philadelphia Inquirer. The Democrat ran against Republican Richard Bryant.
Deuso, 45, currently works at Johnson & Johnson and has lived in Downingtown since 2007. The mayor-elect is originally from Vermont and graduated from Drexel University.
Deuso released a statement following her election, noting that “history was made.”
“Voters chose hope, decency, and a vision of community where every neighbor matters,” Deuso stated. “I am deeply honored to be elected as Pennsylvania’s first openly transgender mayor, and I don’t take that responsibility lightly.”
According to a LGBTQ+ Victory Institute report released in June, the U.S. has seen a 12.5 percent increase in trans elected officials from 2024 to 2025. Still, Deuso’s campaign did not heavily focus on LGBTQ policy or her identity. She instead prioritized public safety, environmental resilience, and town infrastructure, according to Deuso’s campaign website.
Deuso has served on the boards of the Pennsylvania Equality Project, PFLAG West Chester/Chester County, and Emerge Pennsylvania, according to the LGBTQ+ Victory Fund. She is also an executive member of the Chester County Democratic Committee.
“This victory isn’t about one person, it’s about what happens when people come together to choose progress over fear. It’s about showing that leadership can be compassionate, practical, and focused on results. Now the real work begins, building a Downingtown that is safe, sustainable, and strong for everyone who calls it home,” Deuso said.
Downingtown has a population of more than 8,000 people and is a suburb of Philadelphia. The town’s current mayor, Democrat Phil Dague, did not seek a second term.
Janelle Perez, the executive director of LPAC, celebrated Deuso’s victory. The super PAC endorses LGBTQ women and nonbinary candidates with a commitment to women’s equality and social justice, including Deuso.
“Downingtown voters delivered a resounding message today, affirming that Erica represents the inclusive, forward-looking leadership their community deserves, while rejecting the transphobic rhetoric that has become far too common across the country,” Perez said. “Throughout her campaign, Erica demonstrated an unwavering commitment to her future constituents and the issues that matter most to them. LPAC is proud to have supported her from the beginning of this historic campaign, and we look forward to the positive impact she will have as mayor of Downingtown.”
Deuso will be sworn in as mayor on Jan. 7.
U.S. Supreme Court
LGBTQ legal leaders to Supreme Court: ‘honor your president, protect our families’
Experts insist Kim Davis case lacks merit
The U.S. Supreme Court considered hearing a case from Kim Davis on Friday that could change the legality of same-sex marriage in the United States.
Davis, best known as the former county clerk for Rowan County, Ky., who defied federal court orders by refusing to issue marriage licenses to same-sex couples — and later, to any couples at all — is back in the headlines this week as she once again attempts to get Obergefell v. Hodges overturned on a federal level.
She has tried to get the Supreme Court to overturn this case before — the first time was just weeks after the initial 2015 ruling — arguing that, in her official capacity as a county clerk, she should have the right to refuse same-sex marriage licenses based on her First Amendment rights. The court has emphatically said Davis, at least in her official capacity as a county clerk, does not have the right to act on behalf of the state while simultaneously following her personal religious beliefs.
The Washington Blade spoke with Karen Loewy, interim deputy legal director for litigation at Lambda Legal, the oldest and largest national legal organization advancing civil rights for the LGBTQ community and people living with HIV through litigation, education, and public policy, to discuss the realistic possibilities of the court taking this case, its potential implications, and what LGBTQ couples concerned about this can do now to protect themselves.
Loewy began by explaining how the court got to where it is today.
“So Kim Davis has petitioned the Supreme Court for review of essentially what was [a] damages award that the lower court had given to a couple that she refused a marriage license to in her capacity as a clerk on behalf of the state,” Loewy said, explaining Davis has tried (and failed) to get this same appeal going in the past. “This is not the first time that she has asked the court to weigh in on this case. This is her second bite at the apple at the U.S. Supreme Court, and in 2020, the last time that she did this, the court denied review.”
Davis’s entire argument rests on her belief that she has the ability to act both as a representative of the state and according to her personal religious convictions — something, Loewy said, no court has ever recognized as a legal right.
“She’s really claiming a religious, personal, religious exemption from her duties on behalf of the state, and that’s not a thing.”
That, Loewy explained, is ultimately a good thing for the sanctity of same-sex marriage.
“I think there’s a good reason to think that they will, yet again, say this is not an appropriate vehicle for the question and deny review.”
She also noted that public opinion on same-sex marriage remains overwhelmingly positive.
“The Respect for Marriage Act is a really important thing that has happened since Obergefell. This is a federal statute that mandates that marriages that were lawfully entered, wherever they were lawfully entered, get respect at the federal level and across state lines.”
“Public opinion around marriage has changed so dramatically … even at the state level, you’re not going to see the same immediate efforts to undermine marriages of same-sex couples that we might have a decade ago before Obergefell came down.”
A clear majority of U.S. adults — 65.8 percent — continue to support keeping the Obergefell v. Hodges decision in place, protecting the right to same-sex marriage. That support breaks down to 83 percent of liberals, 68 percent of moderates, and about half of conservatives saying they support marriage equality. These results align with other recent polling, including Gallup’s May 2025 estimate showing 68 percent support for same-sex marriage.
“Where we are now is quite different from where we were in terms of public opinion … opponents of marriage equality are loud, but they’re not numerous.”
Loewy also emphasized that even if, by some chance, something did happen to the right to marry, once a marriage is issued, it cannot be taken back.
“First, the Respect for Marriage Act is an important reason why people don’t need to panic,” she said. “Once you are married, you are married, there isn’t a way to sort of undo marriages that were lawfully licensed at the time.”
She continued, explaining that LGBTQ people might feel vulnerable right now as the current political climate becomes less welcoming, but there is hope — and the best way to respond is to move thoughtfully.
“I don’t have a crystal ball. I also can’t give any sort of specific advice. But what I would say is, you know, I understand people’s fear. Everything feels really vulnerable right now, and this administration’s attacks on the LGBTQ community make everybody feel vulnerable for really fair and real reasons. I think the practical likelihood of Obergefell being reversed at this moment in time is very low. You know, that doesn’t mean there aren’t other, you know, case vehicles out there to challenge the validity of Obergefell, but they’re not on the Supreme Court’s doorstep, and we will see how it all plays out for folks who feel particularly concerned and vulnerable.”
Loewy went on to say there are steps LGBTQ couples and families can take to safeguard their relationships, regardless of what the court decides. She recommended getting married (if that feels right for them) and utilizing available legal tools such as estate planning and relationship documentation.
“There are things, steps that they can take to protect their families — putting documentation in place and securing relationships between parents and children, doing estate planning, making sure that their relationship is recognized fully throughout their lives and their communities. Much of that is not different from the tools that folks have had at their disposal prior to the availability of marriage equality … But I think it behooves everyone to make sure they have an estate plan and they’ve taken those steps to secure their family relationships.”
“I think, to the extent that the panic is rising for folks, those are tools that they have at their disposal to try and make sure that their family and their relationships are as secure as possible,” she added.
When asked what people can do at the state and local level to protect these rights from being eroded, Loewy urged voters to support candidates and initiatives that codify same-sex marriage at smaller levels — which would make it more difficult, if not impossible, for a federal reversal of Obergefell to take effect.
“With regard to marriage equality … states can be doing … amend state constitutions, to remove any of the previous language that had been used to bar same-sex couples from marrying.”
Lambda Legal CEO Kevin Jennings echoed Loewy’s points in a statement regarding the possibility of Obergefell being overturned:
“In the United States, we can proudly say that marriage equality is the law,” he said via email. “As the Supreme Court discusses whether to take up for review a challenge to marriage equality, Lambda Legal urges the court to honor what millions of Americans already know as a fundamental truth and right: LGBTQ+ families are part of the nation’s fabric.
“LGBTQ+ families, including same-sex couples, are living in and contributing to every community in this country: building loving homes and small businesses, raising children, caring for pets and neighbors, and volunteering in their communities. The court took note of this reality in Obergefell v. Hodges, citing the ‘hundreds of thousands of children’ already being raised in ‘loving and nurturing homes’ led by same-sex couples. The vows that LGBTQ+ couples have taken in their weddings might have been a personal promise to each other. Still, the decision of the Supreme Court is an unbreakable promise affirming the simple truth that our Constitution guarantees equal treatment under the law to all, not just some.”
He noted the same things Loewy pointed out — namely that, at minimum, the particular avenue Davis is attempting to use to challenge same-sex marriage has no legal footing.
“Let’s be clear: There is no case here. Granting review in this case would unnecessarily open the door to harming families and undermine our rights. Lower courts have found that a government employee violates the law when she refuses to grant marriage licenses to same-sex couples as her job requires. There is no justifiable reason for the court to revisit settled law or destabilize families.”
He also addressed members of the LGBTQ community who might be feeling fearful at this moment:
“To our community, we say: this fight is not new. Our community has been fighting for decades for our right to love whom we love, to marry and to build our families. It was not quick, not easy, not linear. We have lived through scary and dark times before, endured many defeats, but we have persevered. When we persist, we prevail.”
And he issued a direct message to the court, urging justices to honor the Constitution over one person’s religious beliefs.
“To the court, we ask it to honor its own precedent, to honor the Constitution’s commands of individual liberty and equal protection under the law, and above all, to honor the reality of LGBTQ families — deeply rooted in every town and city in America. There is no reason to grant review in this case.”
Kenneth Gordon, a partner at Brinkley Morgan, a financial firm that works with individuals and couples, including same-sex partners, to meet their legal and financial goals, also emphasized the importance of not panicking and of using available documentation processes such as estate planning.
“From a purely legal standpoint, overturning Obergefell v. Hodges would present significant complications. While it is unlikely that existing same-sex marriages would be invalidated, particularly given the protections of the 2022 Respect for Marriage Act, states could regain the authority to limit or prohibit future marriage licenses to same-sex couples. That would create a patchwork of laws across the country, where a couple could be legally married in one state but not recognized as married if they moved to or even visited another state.
“The legal ripple effects could be substantial. Family law issues such as adoption, parental rights, inheritance, health care decision-making, and property division all rely on the legal status of marriage. Without uniform recognition, couples could face uncertainty in areas like custody determinations, enforcement of spousal rights in medical emergencies, or the ability to inherit from a spouse without additional legal steps.
“Courts generally strive for consistency, and creating divergent state rules on marriage recognition would reintroduce conflicts that Obergefell was intended to resolve. From a legal systems perspective, that inconsistency would invite years of litigation and impose significant personal and financial burdens on affected families.”
Finally, Human Rights Campaign President Kelley Robinson issued a statement about the possibility of the Supreme Court deciding to hear Davis’s appeal:
“Marriage equality isn’t just the law of the land — it’s woven into the fabric of American life,” said Robinson. “For more than a decade, millions of LGBTQ+ couples have gotten married, built families, and contributed to their communities. The American people overwhelmingly support that freedom. But Kim Davis and the anti-LGBTQ+ extremists backing her see a cynical opportunity to attack our families and re-litigate what’s already settled. The court should reject this paper-thin attempt to undermine marriage equality and the dignity of LGBTQ+ people.”
U.S. Supreme Court
Supreme Court rules White House can implement anti-trans passport policy
ACLU, Lambda Legal filed lawsuits against directive.
The U.S. Supreme Court on Thursday said the Trump-Vance administration can implement a policy that bans the State Department from issuing passports with “X” gender markers.
President Donald Trump once he took office signed an executive order that outlined the policy. A memo the Washington Blade obtained directed State Department personnel to “suspend any application where the applicant is seeking to change their sex marker from that defined in the executive order pending further guidance.”
The White House only recognizes two genders: male and female.
The American Civil Liberties Union in February filed a lawsuit against the passport directive on behalf of seven trans and nonbinary people.
A federal judge in Boston in April issued a preliminary junction against it. A three-judge panel on the 1st U.S. Circuit Court of Appeals in September ruled against the Trump-Vance administration’s motion to delay the move.
A federal judge in Maryland also ruled against the passport policy. (Lambda Legal filed the lawsuit on behalf of seven trans people.)
“This is a heartbreaking setback for the freedom of all people to be themselves, and fuel on the fire the Trump administration is stoking against transgender people and their constitutional rights,” said Jon Davidson, senior counsel for the ACLU’s LGBTQ and HIV Project, in a statement. “Forcing transgender people to carry passports that out them against their will increases the risk that they will face harassment and violence and adds to the considerable barriers they already face in securing freedom, safety, and acceptance. We will continue to fight this policy and work for a future where no one is denied self-determination over their identity.”
Justices Ketanji Brown Jackson, Elena Kagan, and Sonia Sotomayor dissented.
The Supreme Court ruling is here.
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