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Cato legal analyst: DOMA is dead

Former GOP head, same-sex marriage advocate assess high court arguments in ‘Windsor’ case

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The Cato Institute (Photo by Matt Bisanz via Wikimedia)

The Cato Institute (Photo by Matt Bisanz via Wikimedia)

A senior fellow with the Cato Institute, a libertarian think tank that supports LGBT equality, said comments by U.S. Supreme Court justices on Wednesday lead him to believe the high court will strike down the anti-gay Defense of Marriage Act known as DOMA.

Cato Institute senior fellow Ilya Shapiro, who attended Wednesday’s oral arguments at the high court, said the court’s four liberal justices would likely invoke the Constitution’s “equal protection” clause as grounds for overturning DOMA’s Section 3, which prohibits the federal government from recognizing same-sex marriages.

Shapiro said comments made by Justice Anthony Kennedy, who is considered the court’s swing vote on DOMA, indicate Kennedy would vote to strike down DOMA based on grounds that it violates “federalism” or states’ rights protections under the constitution.

Assuming Kennedy joins liberal leaning Justices Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan in voting to declare Section 3 of DOMA as unconstitutional, the five would become a majority on the nine-member court needed to strike down that provision of DOMA, according to Shapiro.

“Assuming they get past the jurisdictional arguments it seems like DOMA Section 3 is not long for this world,” he said.

Shapiro gave his assessment on the justices’ views on DOMA at a Cato Institute forum Wednesday afternoon called Law, Politics, and Same-Sex Marriage.

Others panelists speaking at the forum included Walter Olson, a Cato Institute fellow, who served as moderator; Evan Wolfson, executive director of the same-sex marriage advocacy group Freedom to Marry; and Ken Mehlman, a York City businessman and former chair of the Republican National Committee.

Wolfson attended Wednesday’s Supreme Court oral arguments on DOMA as well as the arguments before the court one day earlier on California’s Proposition 8 case, which legal experts say could potentially lead to the legalization of same-sex marriage in all fifty states.

He told the forum that making predictions about how the court will rule on a case based on the justices’ statements and questions during oral arguments is highly speculative.

“I think you really need to take every prediction you hear and read and see tweeted and re-tweeted very, very skeptically,” Wolfson said. “The justices are going to go back and delve through a mountain of briefs in both cases, a huge amount of evidence and argument.”

While the outcome of both the Prop 8 and DOMA cases is uncertain, there are things marriage equality advocates know “very, very clearly,” Wolfson said.

“One thing we know is that while the justices are doing their homework in going through the process, the best single way we can maximize winning the freedom to marry and even getting the justices encouraged to do the right thing as they deliberate now in the court is to do what we’ve been doing, which is to continue winning in more states and to continue winning over more hearts and minds,” he said.

“There are as many as four states that are going to be considering or have begun considering freedom to marry legislation and could pass those bills into law before the court hands down its decision likely at the end of June,” Wolfson said. “So the single biggest thing we can do to maximize the chances of winning are to pass those marriage bills and to continue growing the extraordinary ‘who’s who’ of Americans that have stepped up the last many weeks and months in supporting the freedom to marry.”

Ken Mehlman, gay news, Washington Blade

Ken Mehlman (Washington Blade photo by Michael Key)

Mehlman, who’s gay and who has emerged as an outspoken same-sex marriage advocate in recent years, said that aside from using sound legal arguments, marriage equality advocates have made important advances by putting a human face on the same-sex couples who want the right to marry.

“In my judgment, what has so galvanized the public is our stories,” he said. “These are real stories about real people and they make a gigantic difference.”

He said the numerous “friend-of-the-court” or amicus briefs filed in support of the marriage equality side by a wide range of organizations also shows how the breadth of support for same-sex marriage has greatly expanded.

The Cato Institute is among the groups that have filed an amicus brief in support of striking down DOMA.

“It’s not just that it is a large number,” he said of the groups and individuals filing amicus briefs. “It’s the cross section of society. It’s military leaders. It’s religious leaders. It’s business leaders. It’s Republicans and conservatives. It’s leaders of excellent think tanks — all making the case from their perspective and why it makes sense,” Mehlman said.

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National

Advocacy groups issue US travel advisory ahead of World Cup

Renee Good’s death in Minneapolis among incidents cited

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(Photo by fifg/Bigstock)

More than 100 organizations have issued a travel advisory for the U.S. ahead of the 2026 World Cup.

The World Cup will take place in the U.S., Canada, and Mexico from June 11-July 19.

“In light of the deteriorating human rights situation in the United States and in the absence of meaningful action and concrete guarantees from FIFA, host cities, or the U.S. government, the undersigned organizations are issuing this travel advisory for fans, players, journalists, and other visitors traveling to and within the United States for the June 2026 FIFA Men’s World Cup. World Cup games will be played in 11 different cities across the United States, which, like many localities, have already been the target of the Trump administration’s violent and abusive immigration crackdown,” reads the advisory that the Council for Global Equality and other groups that include the American Civil Liberties Union issued on April 23.  “The impacts of these policies vary by locality.”

“While the Trump administration’s rising authoritarianism and increasing violence pose serious risks to all, those from immigrant communities, racial and ethnic minority groups, and LGBTQ+ individuals have been and continue to be disproportionately targeted and affected by the administration’s policies and, as such, are most vulnerable to serious harm when traveling to and/or within the United States,” it adds. “This travel advisory calls on fans, players, journalists, and other visitors to exercise caution.”

The advisory specifically mentions Renee Good.

A U.S. Immigration and Customs Enforcement agent on Jan. 7 shot and killed her in Minneapolis. Good, 37, left behind her wife and three children.

The full advisory can be read here.

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State Department

Democracy Forward files FOIA request for State Department bathroom policy records

April 20 memo outlined anti-transgender rule

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(Photo courtesy of the Library of Congress)

Democracy Forward on Tuesday filed a Freedom of Information Act request for records on the State Department’s new bathroom policy.

A memo titled “Updates Regarding Biological Sex and Intimate Spaces, Including Restrooms” that the State Department issued on April 20 notes employees can no longer use bathrooms that correspond with their gender identity.

“The administration affirms that there are two sexes — male and female — and that federal facilities should operate on this objective and longstanding basis to ensure consistency, privacy, and safety in shared spaces,” State Department spokesperson Tommy Piggot told the Daily Signal, a conservative news website that first reported on the memo. “In line with President Trump’s executive order this provides clear, uniform guidance to the department by grounding policy in biological sex as determined at birth.”

President Donald Trump shortly after he took office in January 2025 issued an executive order that directed the federal government to only recognize two genders: male and female. The sweeping directive also ordered federal government agencies to “effectuate this policy by taking appropriate action to ensure that intimate spaces designated for women, girls, or females (or for men, boys, or males) are designated by sex and not identity.”

Democracy Forward’s FOIA request that the Washington Blade exclusively obtained on Tuesday is specifically seeking a copy of the memo that details the State Department’s new bathroom policy. Democracy Forward has also requested “all” memo-specific communications between the State Department’s Bureau of Global Public Affairs and the Daily Signal from April 1-21.

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Federal Government

House Republicans push nationwide ‘Don’t Say Gay’ bill

Measures would restrict federal funding for LGBTQ-affirming schools

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(Washington Blade photo by Michael Key)

Republicans have been gaining ground in reshaping education policy to be less inclusive toward LGBTQ students at the state level, and now they are turning their focus to Capitol Hill.

Some GOP lawmakers are pushing for a nationwide “Don’t Say Gay” bill, doubling down on their commitment to being the party of “traditional family values” by excluding anyone who does not identify with their sex at birth.

The largest anti-LGBTQ education legislation to reach the House chamber is House Bill 2616 — the Parental Rights Over the Education and Care of Their Kids Act, or the PROTECT Kids Act. The PROTECT Kids Act, proposed by U.S. Rep. Tim Walberg (R-Mich.), and co-sponsored by U.S. Reps. Burgess Owens (R-Utah), Mary Miller (R-Ill.), Robert Onder (R-Mo.), and Kevin Kiley (R-Calif.), would require any public elementary and middle schools that receive federal funding to require parental consent to change a child’s gender expression in school.

The bill, which was discussed during Tuesday’s House Rules Committee hearing, would specifically require any schools that get federal money from the Elementary and Secondary Education Act of 1965 — which was created to minimize financial discrepancies in education for low-income students — to get parental approval before identifying any child’s gender identity as anything other than what was provided to the school initially. This includes getting approval before allowing children to use their preferred locker room or bathroom.

It reads that any school receiving this funding “shall obtain parental consent before changing a covered student’s (1) gender markers, pronouns, or preferred name on any school form; or (2) sex-based accommodations, including locker rooms or bathrooms.”

LGBTQ rights advocates have criticized both national and state efforts to require parental permission to use a child’s preferred gender identity, as it raises issues of at-home safety — especially if the home is not LGBTQ-affirming — and could lead to the outing of transgender or gender-curious students.

A follow-up bill, HB 2617, proposed by Owens, one of the bill’s co-sponsors, prevents the use of federal funding to “advance concepts related to gender ideology,” using the definition from President Donald Trump’s 2025 Executive Order 14168, making that an enshrined definition in law of sex rather than just by executive order. There is also a bill making its way through the senate with the same text— Senate Bill 2251.

Advocates have also criticized this follow-up legislation, as it would restrict school staff — including teachers and counselors — from acknowledging trans students’ identities or providing any support. They have said that this kind of isolation can worsen mental health outcomes for LGBTQ youth and allows for education to be politicized rather than being based in reality.

David Stacy, the Human Rights Campaign’s vice president of government affairs, called this legislation out for using LGBTQ children as political pawns in an ideology fight — one that could greatly harm the safety of these children if passed.

“Trans kids are not a political agenda — they are students who deserve safety and affirmation at school like anyone else,” Stacy said in a statement. “Despite the many pressing issues facing our nation, House Republicans continue their bizarre obsession with trans people. H.R. 2616 does not protect children. It targets them. This bill is cruel, and we’re prepared to fight it.”

This is similar to Florida House Bills 1557 and 1069, referred to as the “Don’t Say Gay” bill and “Don’t Say They” bill, respectively, restricting classroom discussions on sexual orientation and gender identity, prohibiting the use of pronouns consistent with one’s gender identity, expanding book banning procedures, and censoring health curriculum.

The American Civil Liberties Union is tracking 233 bills related to restricting student and educator rights in the U.S.

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