National
Republicans argue DOJ can’t litigate against DOMA
Boehner group asserts Obama admin got what it wanted from lower court ruling
Former U.S. solicitor general Paul Clement argues DOJ lacks standing in his latest DOMA brief .(Public domain photo)
Attorneys representing House Republicans in litigation against the Defense of Marriage Act before the Supreme Court are asserting that the Justice Department lacks standing to participate in the lawsuit.
The Bipartisan Legal Advisory Group, under the direction of U.S. House Speaker John Boehner, makes the argument in a 38-page brief filed on Friday in response to the court’s jurisdictional questions on standing in the challenge to Section 3 of DOMA, known as Windsor v. United States.
BLAG argues the Justice Department lacks standing because the Obama administration received the result it wanted from lower courts — including the U.S. Second Circuit Court of Appeals — striking down DOMA.
“It obtained the precise relief it believed was appropriate based on the precise theory (heightened scrutiny) it advocated,” the brief states. “The executive can fare no better before this Court. While this Court’s affirmance would have a greater precedential impact, the executive cannot ground its appellate standing on a desire for an opinion with the identical effect on this case and controversy, but a broader precedential scope for other cases.”
The brief is signed by private attorney Paul Clement, a former U.S. solicitor general hired at $520 an hour to defend DOMA, and House General Counsel Kerry Kircher, among other lawyers.
But BLAG contends the court can nonetheless hear the case because it has standing to defend DOMA now that the Obama administration has declined to continue defending it.
“Indeed, without the House’s participation, it is hard to see how there is any case or controversy here at all,” the brief states. “Both Ms. Windsor and the executive agree that DOMA is unconstitutional and that Ms. Windsor was entitled to a refund. And the lower courts granted them all the relief they requested. Only the House’s intervention provides the adverseness that Article III demands.”
The Obama administratio discontinued defense of DOMA in court in February 2011 and since that time has filed briefs against the anti-gay law and litigated against it in oral arguments. House Republicans have taken up defense of the law in the administration’s stead following a 3-2 party line in BLAG.
In the brief, the committee also invokes as a source of its standing the rules passed at the start of the 113th Congress by the Republican-controlled House giving authority to the committee to speak for the House against DOMA. The rules were approved by a vote of 228-196.
Notably, the brief in a footnote asserts the House Democrats also believe that BLAG has standing to defend DOMA, even though they oppose House Republican intervention in the lawsuit.
“While the Democratic Leader and the Democratic Whip have declined to support the position taken by the Group on the merits of DOMA Section 3’s constitutionality in this and other cases, they support the Group’s Article III standing,” the brief states.
Drew Hammill, a spokesperson for House Minority Leader Nancy Pelosi (D-Calif.), said the case against DOMA should indeed proceed on the merits regardless of who has standing in the lawsuit.
“We believe that the case should proceed to the merits, regardless of who has standing, and that the Supreme Court should rule DOMA unconstitutional once and for all,” Hammill said.
The BLAG brief was but one that was filed on Friday in response to jurisdictional questions in the DOMA case. In another 39-page brief, the ACLU asserts that the Supreme Court has standing to hear the case because a “controversy” remains in the case; existing law and appellate practice affirm the court has jurisdiction; and practice concerns favor the court exercising jurisdiction.
“[L]eaving DOMA’s constitutionality to the courts of appeals poses its own set of problems for married gay couples,” the brief states. “It may well take years for ‘a uniform rule’ to emerge. … And absent this Court’s intervention, uniformity may never come. In the meantime, married gay couples will continue to be denied equality under the law and essential government benefits that all other married couples can depend on.”
The ACLU also veers away from a position on whether BLAG has standing in the case — saying it at most can be an intervenor or have “piggyback” standing in the lawsuit — but maintains the court has jurisdiction to hear the case regardless of whether BLAG has standing.
“Whether BLAG would have had independent Article III standing if the United States had not petitioned for certiorari is a counterfactual question that this Court need not answer,” the brief states. “Indeed, because of controlling Second Circuit precedent, neither court below found it necessary to resolve the nature of BLAG’s standing.”
The brief is signed by attorneys that include private attorney Roberta Kaplan, who’s slated to deliver oral arguments against DOMA before the Supreme Court on March 27, as well as James Esseks, director of the ACLU’s LGBT Project.
The court hired Vicki Jackson, a Harvard law professor, to argue that neither the Justice Department nor BLAG have standing to participate in the DOMA case. In a brief filed last month, she contended the Supreme Court doesn’t have jurisdiction to hear the case.
The Justice Department was due on Friday to file its own brief on the jurisdictional questions presented by the court and another brief on the constitutionality. The brief wasn’t available as of this posting.
After those briefs, the next step in the lawsuit is for the ACLU to file its brief on the merits against the constitutionality of DOMA, which is due on Tuesday. Oral arguments in the DOMA case are set for March 27.
Wyoming
U.S. attorney nominee confirmed despite anti-LGBTQ history, no trial experience
Nine felony grand jury indictments tied to Darin Smith dismissed last week
Republicans confirmed Darin Smith as U.S. Attorney for the District of Wyoming on Monday, regardless of his history as interim U.S. Attorney for Wyoming and a state senator.
While serving as interim U.S. Attorney for Wyoming — after being appointed by President Donald Trump last July despite never trying a case outside of his time as a law student intern — former state Sen. Darin Smith likely prejudiced jurors during grand jury proceedings.
Nine felony grand jury indictments tied to Smith’s tenure were dismissed last week.
Judges dismissed felony indictments against Cheyenne Swett, Richard Allen, Michael Scott Hopper, Brian Joseph Johnson, Dennison Jay Antelope, Matthew Christopher Jacoby, Matthew Miller Jr., Wolf Elkins Duran, and Jose Benito Ocon. The now-dismissed charges included felony firearm possession, drug distribution, and possession of child pornography, among other allegations.
Smith allegedly told the grand jury that the defendants were “bad guys,” described them as “murderers,” and said deliberations “won’t take long.”
Even the U.S. Attorney’s Office for the District of Wyoming acknowledged that Smith’s comments were “ill-advised.”
Smith has a history of aligning with Trump over the Constitution and supporting anti-LGBTQ legislation.
In 2025, Smith co-sponsored House Bill 0194, titled “Obscenity amendments,” which, among other provisions, would have criminalized drag shows. The bill also would have repealed exemptions for public and school librarians from the crime of “promoting obscenity” to minors. The wording of the bill was so vague that Republican state Rep. Lee Filer said, “We will end up having to arrest somebody for allowing a child to read the Holy Bible.”
Smith also co-sponsored SF0062, a bill requiring public school students to use restrooms, sex-designated changing facilities, and sleeping quarters that align with their sex assigned at birth. In March 2025, the Wyoming governor signed the bill into law, along with its House companion.
He also attended the Jan. 6 Capitol riot alongside thousands of other Trump supporters.
“Smith was on the Capitol grounds on Jan. 6 … and made the reprehensible claim … that the hundreds of Capitol Police officers who risked their lives that day were guilty of ‘massive incompetence.’ Smith blames the police for what happened on Jan. 6. Without evidence, he claimed that rioters who breached the Capitol were victims of entrapment,” U.S. Sen. Dick Durbin (D-Ill.) said. “Moreover, Smith is not remotely qualified to be a U.S. Attorney. He’s going to be in the package — take it or leave it. Prior to becoming the interim U.S. Attorney, he had no courtroom or litigation experience whatsoever. None. And Smith’s lack of experience has had real-world consequences.”
Prior to his work in the Wyoming state legislature, Smith worked as Director of Planned Giving for the Family Research Council, an organization that describes homosexuality as “harmful” to society with “negative physical and psychological health effects.”
The organization also believes that sexual orientation “should [not] be included as a protected category in nondiscrimination laws or policies, as it is not comparable to inborn, immutable characteristics such as race or sex.”
During questioning before the U.S. Senate, he denied that his work with the organization shows he has loss of impartiality when it comes to matters of LGBTQ rights.
Also questioning, Smith was asked about a now-deleted Facebook post in which he appeared to express support for Kim Davis, the Kentucky county clerk who was found to be unconstitutional in her refusal to issue same-sex marriage licenses, despite Obergefell v. Hodges.
“Perhaps Hillary and Obama can share the cell with Kim Davis for refusing to uphold the Defense of Marriage Act,” the post said.
When asked why he posted it, Smith told Durbin: “I do not recall.”
Josh Sorbe, spokesperson for the Senate Judiciary Committee Democrats and Durbin, said:
“Anti-LGBTQ+ extremist Darin Smith has no business serving as a top law enforcement officer in any state — let alone a state with as much history of queer importance as Wyoming. He’s an unqualified insurrectionist with no experience litigating criminal or federal matters, and his bigotry puts into serious question his commitment to upholding the law for all Americans.”
Human Rights Campaign Vice President of Government Affairs David Stacy also condemned Smith’s confirmation to the U.S. Attorney’s office.
“The justice system in America is supposed to be about ensuring the law is applied fairly and equally. But Darin Smith has spent his career obsessed with making life worse for LGBTQ+ people, opposing marriage equality, cosponsoring state legislation targeting transgender youth, and smearing LGBTQ+ people in public statements,” Stacy said. “Just over two decades after Matthew Shepard was brutally murdered in that same state, Wyoming deserves better than tired anti-LGBTQ+ hate at the helm of federal law enforcement. The Senate should reject Darin Smith and demand a nominee who will put the people — and justice — first.”
Vermont
Vt. lawmaker equates transgender identity with bestiality
Vermont Democrats condemned comments, demanded apology
State Sen. Steven Heffernan (R-Addison) equated transgender people to bestiality on the Vermont Senate floor on May 15 while debating an animal cruelty bill.
Heffernan, who was elected in 2024 to the state Senate, constructed a scenario in which a trans person is indistinguishable from someone committing bestiality.
“In these crazy times, what happens if the individual identifies as an animal having intercourse with an animal? How is the courts going to handle that?” the former member of the Vermont Air National Guard said while debating House Bill 578. “Being that we voted through Prop Four, and if it does make it through this state, and I have a gender identity that I identify as a dog and had sex with my dog, is this law going to affect me?”
State Sen. Tanya Vyhovsky (D-Chittenden Central), who presented H. 578 responded professionally.
“The bill that we are putting forward in the current law is quite clear that any act between a person and an animal that involves contact with the mouth, sex organ, or anus of the person, and the mouth, sex organ, or anus of the animal, without a bona fide veterinary purpose, will be a crime.”
In the video, Heffernan continued to ask inappropriate questions — questions that Vyhovsky answered.
“If I identify as that animal, will this be able to … It says a person. I’m not a person. I’m identifying as this animal I’m having intercourse with,” he said. “We are identifying genders, of whatever gender we decide we want to be, and I think I like this bill. I’m going to vote for this bill, but I want to make this chamber aware of what’s coming.”
Vyhovsky made a statement saying this was a planned move in an attempt to “other” trans Vermonters instead of protecting them.
“Senator Heffernan knew exactly what he was doing,” said Vyhovsky. “Sen. Heffernan is using the same dehumanizing playbook that has been used against LGBTQ+ people for generations — the false, ugly suggestion that queer and trans identity is synonymous with deviance and harm. It was wrong then and it is wrong now.”
This derogatory action at the expense of trans people appears to be part of a pattern of behavior from Heffernan in his official capacity.
In March, Heffernan left the floor right before lawmakers voted on Proposal 4, conveniently missing the bill vote. PR 4, if passed by the state’s voters in the fall, would amend the state constitution to enshrine protections against unjust treatment, including discrimination based on a “person’s race, ethnicity, sex, religion, disability, sexual orientation, gender identity, gender expression, or national origin.”
Heffernan told VTDigger at the time that he left because his stomach was feeling “agitated” and he needed to use the restroom. He said he had not made up his mind on how to vote on the amendment, largely because he’d heard from constituents urging him both to vote for and against it.
“My pizza hit at the right time, I guess,” he said, calling the timing “convenient.”
Despite his leaving — and being the only lawmaker to do so — the state Senate voted to pass it 29-0, with Heffernan marked “absent.” This came after the state House of Representatives voted to pass it 128-14 last week.
Vermont Senate Democrats condemned the statement and used the opportunity to emphasize the need for the state to pass PR 4 on Nov. 4.
“In the wake of Sen. Heffernan’s comments, the stakes of this election couldn’t be more clear,” the statement provided to the Washington Blade read. “Transgender and nonbinary Vermonters are our neighbors, our friends, and our family members. On Friday, Sen. Heffernan used his platform as an elected official representing the people of Vermont to dehumanize them. Senate Democrats will never stop fighting for dignity for all Vermonters. We demand Senator Heffernan apologize to those he has harmed with his words and actions.”
State Sen. Kesha Ram Hinsdale (D-Chittenden Southeast), speaking in her capacity as chair of the Senate Ethics Panel, responded to similar transphobic comments made by President Donald Trump in a White House counterterrorism strategy document last week, in which he said those with “extreme transgender ideologies” should know “we will find you and we will kill you,” stating:
“A lot of people are living in fear in this country because of what somebody with the power of the pen and the power of the military is saying every day,” Hinsdale said. “Just because [speech] is protected does not mean it is worthy of this institution, and does not mean it is worthy of the office we hold and the power that we wield in the lives of Vermonters.”
The Blade reached out to Heffernan for comment but has not heard back.
Former U.S. Rep. Barney Frank (D-Mass.) died on Tuesday. He was 86.
The Massachusetts Democrat served in the U.S. House of Representatives from 1981-2013. Frank in 1987 became the first member of Congress to voluntarily come out as gay.
The Washington Blade earlier this month interviewed Frank after he entered hospice care at his Ogunquit, Maine, home where he lived with his husband, Jim Ready, since 2013. The former congressman, among other things, talked about his new book, “The Hard Path to Unity: Why We Must Reform the Left to Rescue Democracy.”
The book is scheduled for release on Sept. 15.
NBC Boston reported Frank’s sister, Ann Lewis, and a close family friend confirmed his death.
The Blade will update this article.
U.S. attorney nominee confirmed despite anti-LGBTQ history, no trial experience
Vt. lawmaker equates transgender identity with bestiality
Gay Men’s Chorus celebrates 45 years at annual gala
BREAKING NEWS: Barney Frank dies at 86
Intersex lives, constitutional freedom, and the dangerous future of Ghana’s Human Sexual Rights and Family Values Bill
Disillusioned about democracy? Think of it as a community garden
Honey, have we been priced out of gay paradise?
IDAHOBiT a reminder we all must stand up against transphobia
PHOTOS: Blade Summer Kickoff Party
