National
How will Supreme Court rule on marriage?
Parsing statements, records for hints as to how justices will decide DOMA, Prop 8 cases
Justices on the U.S. Supreme Court are expected to issue rulings on the Prop 8 and DOMA cases in June. (Photo public domain)
The nine members of the U.S. Supreme Court are expected to reach a decision by the end of June in two high-profile LGBT rights cases on which they heard oral arguments last week challenging California’s Proposition 8 and the federal Defense of Marriage Act.
The justices could reach any number of decisions on either or both of the cases — upholding the anti-gay measures, dismissing the cases for lack of standing or jurisdiction, striking down Prop 8 and DOMA on grounds they violate the rights of same-sex couples under the U.S. Constitution — or even issuing a national ruling in favor of marriage equality.
Predicting how they might rule is tricky. But several of the justices made statements and asked questions during the oral arguments that offered some hints. Perhaps more significantly, many of them have a record of ruling in gay rights cases that might indicate their leanings on marriage. The Washington Blade has compiled profiles of the justices to assess how they might rule in the two marriage cases before them.
In addition to examining their comments during the arguments, the Blade has looked at how they ruled in other high-profile gay rights cases. One is the 1996 case of Romer v. Evans in which the Supreme Court struck down Colorado’s Amendment 2, which would have prohibited municipalities from passing non-discrimination ordinances protecting LGBT people. Another is the 2003 case of Lawrence v. Texas in which the Supreme Court struck down state sodomy laws.
The Blade also looked at the court ruling in the 2010 case of Christian Legal Society v. Martinez. In that case, the court upheld the Hastings College of Law’s non-discrimination policy against a challenge from Hastings Christian Fellowship, which sought to overturn the policy to maintain its status as an official school group while prohibiting LGBT people from holding positions as officers.
Chief Justice John Roberts (Photo public domain)
1. Chief Justice John Roberts
The chief justice of the Supreme Court seemed skeptical during oral arguments that Prop 8 and DOMA should be struck down as unconstitutional. He also seemed dismissive of the notion that LGBT people lack political power.
In an exchange with attorney Robbie Kaplan, Chief Justice John Roberts disputed that gay people lack political power — a characteristic that the court has considered in weighing whether a group should be considered a suspect class.
“As far as I can tell, political figures are falling over themselves to endorse your side of the case,” Roberts said.
The chief justice was likely referring to the trend of U.S. senators announcing their support for marriage equality, which just this week added Sens. Bob Casey (D-Pa.), Tom Carper (D-Del.) and Mark Kirk (R-Ill.). When Kaplan pointed out that no group has been subject to referenda in recent years like gay people, Roberts seemed unmoved.
“You just referred to a sea change in people’s understandings and values from 1996, when DOMA was enacted, and I’m just trying to see where that comes from, if not from the political effectiveness of groups on your side,” Roberts said.
Roberts, who was appointed by President George W. Bush, hasn’t ruled on many gay rights cases during his time on the bench. Still, Roberts ruled as part of the dissent that deemed exclusion of LGBT students was acceptable in the Christian Legal Society case.
On the other hand, Roberts in 1996 helped gay rights activists as part of his law firm’s pro bono work in preparation for the Romer case. He also has a lesbian cousin, Jean Podrasky, who attended arguments on Prop 8.
Suzanne Goldberg, a lesbian and co-director of Columbia University’s Center for Gender & Sexuality Law, pointed to another comment Roberts made indicating a parent forcing a child to make friends with another child changes the definition of friendship.
“It suggested that he might be less open to recognizing marriage rights for same-sex couples than the Olson-Boies team had anticipated,” Goldberg said.
Associate Justice Antonin Scalia (Photo public domain)
2. Associate Justice Antonin Scalia
Associate Justice Antonin Scalia, viewed by many as the most anti-gay of the justices, mused that being raised by gay parents may not be good for a child — an argument made by many anti-gay groups.
“If you redefine marriage to include same-sex couples, you must permit adoption by same-sex couples, and there’s considerable disagreement among sociologists as to what the consequences of raising a child in a single-sex family, whether that is harmful to the child or not,” Scalia said. “Some states do not permit adoption by same-sex couples for that reason.”
Those words are consistent with anti-gay views that Scalia has expressed in the past. Most notably, speaking at Princeton in December, Scalia compared bans on sodomy to laws against murder, saying, “If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?”
Since his confirmation to the court, Scalia has not only made anti-gay rulings, but has taken the lead on the opinions. The Reagan-appointed justice wrote the dissenting opinions in the Romer and Lawrence cases and joined with other dissenting justices in ruling for LGBT exclusion in the Christian Legal Society case.
Doug NeJaime, who’s gay and a professor at Loyola Law School, said Scalia is likely to rule to uphold Prop 8 and the Defense of Marriage Act.
“Justice Scalia has made clear in earlier opinions … that legislation can be justified merely by moral disapproval of homosexuality, even though a majority of the court has rejected that position,” NeJaime said. “Moreover, under his theory of constitutional interpretation, he does not believe that lesbians and gay men have a constitutional basis for their claims in these cases.”
Associate Justice Anthony Kennedy (Photo public domain)
3. Associate Justice Anthony Kennedy
The justice who’s being most closely watched because of his reputation for being a swing vote — and his previous rulings in favor of gay rights — conveyed mixed sentiments during the arguments.
Associate Justice Anthony Kennedy contemplated the effect that overturning or sustaining Prop 8 would have on children based on the newness of same-sex marriage.
“We have five years of information to weigh against 2,000 years of history or more,” Kennedy said. “On the other hand, there is … what could be a legal injury, and that’s the voice of these children. There are some 40,000 children in California … that live with same-sex parents, and they want their parents to have full recognition and full status.”
A Reagan appointee, Kennedy authored the majority opinions in the Romer and Lawrence cases that struck down anti-gay measures in those lawsuits. In the Christian Legal Society case, Kennedy also ruled in favor of requiring student groups to be open to all students regardless of LGBT status.
That’s what makes Kennedy’s comment questioning the Ninth Circuit ruling against Prop 8, which was largely based on his opinion in Romer, particularly noteworthy.
“The rationale of the Ninth Circuit was much more narrow,” Kennedy said. “It basically said that California, which has been more generous, more open to protecting same-sex couples than almost any state in the union, just didn’t go far enough, and it’s being penalized for not going far enough. That’s a very odd rationale on which to sustain this opinion.”
Nan Hunter, a lesbian law professor at Georgetown University, said the “single most powerful vibe” she received from Kennedy during arguments was his ambivalence.
“My best guess is that in the Perry case, he will rule in some way that avoids discussion of Prop 8’s constitutionality and that in the Windsor case, he will conclude that DOMA is unconstitutional, but his opinion may invoke federalism as much as it does the Equal Protection Clause,” Hunter said.
Associate Justice Clarence Thomas (Photo public domain)
4. Associate Justice Clarence Thomas
In accordance with his custom, Associate Justice Clarence Thomas remained silent for the duration of oral arguments in the marriage cases.
Thomas is known for not asking questions. In January, after seven years of silence, the George H.W. Bush-appointed justice made news when he broke his tradition and cracked a joke about the competency of an attorney during a case unrelated to marriage.
But Thomas has a history of taking the anti-gay side. He ruled in the dissent in the Romer and Lawrence cases and ruled for LGBT exclusion in the Christian Legal Society case.
Chris Stoll, a senior staff attorney for the National Center for Lesbian Rights, said oral arguments don’t offer any information on how Thomas might rule, but noted the justice’s history of anti-gay opinions.
“He is quite conservative and historically has voted with the other conservative justices in cases involving LGBT equality,” Stoll said.
5. Associate Justice Ruth Bader Ginsburg
Associate Justice Ruth Bader Ginsburg (Photo public domain)
One justice who has a history of ruling in favor of gay rights indicated a disdain for DOMA during oral arguments.
Associate Justice Ruth Bader Ginsburg said the 1996 law creates two different kinds of unions for same-sex and opposite-sex couples: “the full marriage, and then this sort of skim milk marriage.”
While questioning attorney Paul Clement, Ginsburg more distinctly articulated the problems for gay couples under DOMA by enumerating benefits denied to them under the law.
“The problem is if we are totally for the states’ decision that there is a marriage between two people, for the federal government then to come in to say no joint return, no marital deduction, no Social Security benefits; your spouse is very sick but you can’t get leave; people — if that set of attributes, one might well ask, what kind of marriage is this?” Ginsburg said.
Ginsburg also has a history suggesting she’d be willing to rule against Prop 8 and DOMA. The Clinton-appointed justice ruled in favor of LGBT advocates in the Romer, Lawrence and Christian Legal Society cases. Prior to her confirmation as a Supreme Court justice, Ginsburg was a women’s rights advocate and co-founder of the women’s rights project at the American Civil Liberties Union.
David Gans, civil rights director for the progressive Constitutional Accountability Center, said he considers Ginsburg a likely vote to strike down DOMA and Prop 8 based on her history of rulings and comments made in court.
“I think her comments tended to be across the board very skeptical of the justifications offered, and, of course, her record, both as an advocate and justice is to honor the constitutional guarantee of equal protection applies to all persons,” Gans said.
Associate Justice Stephen Breyer (Photo public domain)
6. Associate Justice Stephen Breyer
The other Clinton appointee on the bench also made comments during the Prop 8 arguments suggesting he might rule in favor of marriage rights for gay couples.
Associate Justice Stephen Breyer was dismissive of Cooper’s assertion that marriage is for procreation, observing California allows straight couples who cannot have children to marry.
“What precisely is the way in which allowing gay couples to marry would interfere with the vision of marriage as procreation of children that allowing sterile couples of different sexes to marry would not?” Breyer said. “I mean, there are lots of people who get married who can’t have children.”
And Breyer’s earlier rulings suggest he would be amenable to striking down Prop 8 and DOMA. Breyer joined Kennedy and other justices in the pro-gay rulings for Romer and Lawrence and sided with LGBT inclusion in the Christian Legal Society Case.
Gans said Breyer’s comments during the Prop 8 arguments indicate his rulings on the anti-gay measures will likely be consistent with his earlier decisions.
“Justice Breyer’s questions during oral argument suggested that he would find that discriminatory marriage laws violate the constitutional guarantee of equal protection for all persons,” Gans said.
Associate Justice Samuel Alito (Photo public domain)
7. Associate Justice Samuel Alito
Associate Justice Samuel Alito expressed concerns about same-sex marriage, quipping that it’s “newer than cell phones or the Internet.”
“Same-sex marriage is very new,” Alito said. “I think it was first adopted in the Netherlands in 2000. So there isn’t a lot of data about its effect. And it may turn out to be a good thing; it may turn out not to be a good thing, as the supporters of Proposition 8 apparently believe.”
An appointee of President George W. Bush, Alito hasn’t been on the court long enough to have ruled in the earlier landmark Lawrence and Romer cases. But he wrote the dissenting opinion in favor of LGBT exclusion in the Christian Legal Society case.
Lavi Soloway, a gay immigration attorney and co-founder of The DOMA Project, said he expects Alito to be consistent and issue an anti-gay decision in the cases before him — taking note of the exchange in the Prop 8 case.
“This line of thinking was disappointing; it not only belittled the fight for equality, but suggested that Justice Alito would first need to be convinced of the ‘effects’ of same-sex marriage before he could determine whether gay and lesbian Americans have a constitutionally protected right to marry,” Soloway said. “This exchange suggested to me that Alito will most likely vote to uphold Prop 8, preferring that legislatures continue to wrestle with this issue.”
Associate Justice Sonia Sotomayor (Photo public domain)
8. Associate Justice Sonia Sotomayor
Another justice — this one appointed by President Obama — asked some of the most pointed questions about whether there’s any reason anti-gay laws could survive the court’s lowest standard of review.
Associate Justice Sonia Sotomayor pressed attorney Charles Cooper on whether he could conceive of anti-gay laws on other issues other than marriage that could survive rational basis review. The answer from Cooper was that he could not.
“If that is true, then why aren’t they a class?” Sotomayor responded. “If they’re a class that makes any other discrimination improper, irrational, then why aren’t we treating them as a class for this one thing?”
Sotomayor’s response suggests she might agree with the Obama administration that laws related to sexual orientation should be subjected to heightened scrutiny, or a greater assumption they’re unconstitutional.
A newcomer to the court, Sotomayor hasn’t had the opportunity to rule on many of the earlier LGBT rights cases that have come before the bench. But in the Christian Legal Society case, she joined four other justices in ruling student groups had to accept all students regardless of LGBT status.
Notably, Sotomayor was the only one among nine justices who responded to a letter from a North Carolina 6th grader named Cameron urging justices to rule in favor of marriage equality. The justice said she had no comment on the marriage cases, but urged Cameron to keep “dreaming big.”
NCLR’s Stoll pointed to Sotomayor’s exchange with Cooper as evidence she’d rule against Prop 8 and had similar expectations for how she’d rule on DOMA.
“She seemed perplexed and unpersuaded by Cooper’s argument that excluding gay people from marriage somehow promotes ‘responsible procreation’ by different-sex couples,” Stoll said.
Associate Justice Elena Kagan (Washington Blade photo by Michael Key)
9. Associate Justice Elena Kagan
Yet another justice appointed by President Obama seemed skeptical about arguments presented by proponents of Prop 8 and DOMA.
Associate Justice Elena Kagan suggested to attorney Paul Clement that Congress may have had another motive other than uniformity when it determined to pass the anti-gay law.
“This was a real difference in the uniformity that the federal government was pursuing,” Kagan said. “And it suggests that maybe something — maybe Congress had something different in mind than uniformity.”
Clement offered a lengthy response in which he talked about federal bans on polygamy and laws after the Civil War allowing freed slaves to marry. But Kagan responded by reading from the House report on DOMA, which states the law was passed “to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality” — deemed a “gotcha” moment that elicited laughter from those in the courtroom.
During the Prop 8 arguments, Kagan was also skeptical of Cooper’s argument that the purpose of marriage is procreation and asked for a legitimate reason for excluding same-sex couples from marriage.
“Is there any reason that you have for excluding them?” Kagan said. “In other words, you’re saying, well, if we allow same-sex couples to marry, it doesn’t serve the state’s interest. But do you go further and say that it harms any state interest?”
Like Sotomayor, Kagan is a relative newcomer to the court and hasn’t had the opportunity to rule on gay cases. During her confirmation hearing, Kagan wouldn’t say whether the she thinks the U.S. Constitution guarantees same-sex couples the right to marry.
Still, Loyola’s NeJaime said Kagan seemed bothered during oral arguments by equal protections concerns presented by Prop 8 and DOMA.
“Given her lengthy questions about the relationship between age and procreative ability, she seems unconvinced by the ‘responsible procreation’ rationale for same-sex marriage bans,” NeJaime said. “And given her reading of the House report on DOMA regarding the ‘moral disapproval of homosexuality,’ she is suggesting that the law may not survive rational basis review.”
Federal Government
Two very different views of the State of the Union
As Trump delivered his SOTU address inside the Capitol, Democratic lawmakers gathered outside in protest, condemning the administration’s harmful policies.
As President Donald Trump delivered his State of the Union address inside the U.S. Capitol — touting his achievements and targeting political enemies — progressive members of Congress gathered just outside in protest.
Their message was blunt: For many Americans, particularly LGBTQ people, the country is not better off.
Each year, as required by Article II, Section 3 of the Constitution, the president must “give to the Congress Information of the State of the Union.” The annual address is meant to outline accomplishments and preview the year ahead. This year, Trump delivered the longest State of the Union in U.S. history, clocking in at one hour and 48 minutes. He spoke about immigration, his “law and order” domestic agenda, his “peace through strength” foreign policy doctrine, and what he framed as the left’s ‘culture wars’ — especially those involving transgender youth and Christian values.
But one year into what he has called the “Trump 2.0” era, the picture painted outside the Capitol stood in stark contrast to the one described inside.
Transgender youth
In one of the most pointed moments of his speech, Trump spotlighted Sage Blair, using her story to portray gender-affirming care as coercive and dangerous. Framing the issue as one of parental rights and government overreach, he told lawmakers and viewers:
“In the gallery tonight are Sage Blair and her mother, Michelle. In 2021, Sage was 14 when school officials in Virginia sought to socially transition her to a new gender, treating her as a boy and hiding it from her parents. Hard to believe, isn’t it? Before long, a confused Sage ran away from home.
“After she was found in a horrific situation in Maryland, a left-wing judge refused to return Sage to her parents because they did not immediately state that their daughter was their son. Sage was thrown into an all-boys state home and suffered terribly for a long time. But today, all of that is behind them because Sage is a proud and wonderful young woman with a full ride scholarship to Liberty University.
“Sage and Michelle, please stand up. And thank you for your great bravery and who can believe that we’re even speaking about things like this. Fifteen years ago, if somebody was up here and said that, they’d say, what’s wrong with him? But now we have to say it because it’s going on all over, numerous states, without even telling the parents.
“But surely, we can all agree no state can be allowed to rip children from their parents’ arms and transition them to a new gender against the parents’ will. Who would believe that we’ve been talking about that? We must ban it and we must ban it immediately. Look, nobody stands up. These people are crazy. I’m telling you, they’re crazy.”
The story, presented as encapsulation of a national crisis, became the foundation for Trump’s renewed call to ban gender-affirming care. LGBTQ advocates — and those familiar with Blair’s story — argue that the situation was far more complex than described and that using a single anecdote to justify sweeping federal restrictions places transgender people, particularly youth, at greater risk.
Equality Virginia said the president’s remarks were part of a broader effort to strip transgender Americans of access to care. In a statement to the Blade, the group said:
“Tonight, the president is choosing to double down on efforts to disrupt access to evidence-based, lifesaving care.
“Rather than allowing families and doctors to navigate deeply personal medical decisions free from federal interference — or allowing schools to respond with nuance and compassion without putting marginalized children at risk — the president is instead advocating for reckless, one-size-fits-all political control.
“At a time when Virginians are worried about rising costs, economic uncertainty, and aggressive immigration enforcement actions disrupting communities and families, attacking transgender young people is a blatant political distraction from the real challenges facing our nation. Virginia families and health care providers do not need Donald Trump telling them what care they do or do not need.”
For many in the LGBTQ community, the rhetoric inside the chamber echoed actions already taken by the administration.
Earlier this month, the Pride flag was removed from the Stonewall National Monument under a National Park Service directive that came from the top. Community members returned to the site, raised the flag again, and filed suit, arguing the removal violated federal law. To advocates, the move was symbolic — a signal that even the legacy of LGBTQ resistance was not immune.
Immigration and fear
Immigration dominated both events as well.
Inside the chamber, Trump boasted about the hundreds of thousands of immigrants detained in makeshift facilities. Outside, Democratic lawmakers described those same facilities as concentration camps and detailed what they characterized as the human toll of the administration’s enforcement policies.
Sen. Ed Markey (D-Mass.), speaking to the crowd, painted a grim picture of communities living in fear:
“People are vanishing into thin air. Quiet mornings are punctuated by jarring violence. Students are assaulted by ICE agents sitting outside the high school, hard working residents are torn from their vehicles in front of their children. Families, hopelessly search for signs of their loved ones who have stopped answering their phones, stop replying to text… This is un-American, it is illegal, it is unconstitutional, and the people are going to rise up and fight for Gladys Vega and all of those poor people who today need to know that the people’s State of the Union is the beginning of a long fight that is going to result in the end of Republican control of the House of Representatives and the Senate in the United States of America in 2026.”
Speakers emphasized that LGBTQ immigrants are often especially vulnerable — fleeing persecution abroad only to face detention and uncertainty in the United States. For them, the immigration crackdown and the attacks on transgender health care are not separate battles but intertwined fronts in a broader cultural and political war.
Queer leadership
After delivering remarks alongside Robert Garcia, Kelley Robinson, president of the Human Rights Campaign, took the stage and transformed the freezing crowd’s anger into resolve.
Garcia later told the Blade that visibility matters in moments like this — especially when LGBTQ rights are under direct attack.
“We should be crystal clear about right now what is happening in our country,” Garcia said. “We have a president who is leading the single largest government cover up in modern history, we have the single largest sex trafficking ring in modern history right now being covered up by Donald Trump and Pam Bondi In the Department of Justice. Why are we protecting powerful, wealthy men who have abused and raped women and children in this country? Why is our government protecting these men at this very moment? In my place at the Capitol is a woman named Annie farmer. Annie and her sister Maria, both endured horrific abuse by Jeffrey Epstein and Ghislaine Maxwell. As we move forward in this investigation, always center the survivors; we are going to get justice for the survivors. And Donald Trump may call this investigation a hoax. He may try to deflect our work, but our message to him is very clear that our investigation is just getting started, and we will we will get justice for these survivors.”
He told the Blade afterwards that having queer leaders front and center is itself an act of resistance.
“I obviously was very honored to speak with Kelley,” the California representative said. Kelley is doing a great job…it’s important that there are queer voices, trans voices, gay voices, in protest, and I think she’s a great example of that. It’s important to remind the country that the rights of our community continue to be attacked, and then we’ve got to stand up. Got to stand up for this as well.”
Robinson echoed that call, urging LGBTQ Americans — especially young people — not to lose hope despite the administration’s escalating rhetoric.
“There are hundreds of thousands of people that are standing up for you every single day that will not relent and will not give an inch until every member of our community is protected, especially our kids, especially our trans and queer kids. I just hope that the power of millions of voices drowns out that one loud one, because that’s really what I want folks to see at HRC. We’ve got 3.6 million members that are mobilizing to support our community every single day, 75 million equality voters, people that decide who they’re going to vote for based on issues related to our community. Our job is to make sure that all those people stand up so that those kids can see us and hear our voices, because we’re going to be what stands in the way.”
A boycott — and a warning
The list of Democratic lawmakers who boycotted the State of the Union included Sens. Ruben Gallego, Ed Markey, Jeff Merkley, Chris Murphy, Adam Schiff, Tina Smith, and Chris Van Hollen, along with dozens of House members.
For those gathered outside — and for viewers watching the livestream hosted by MoveOn — the counter-programming was not merely symbolic. It was a warning.
While the president spoke of strength and success inside the chamber, LGBTQ Americans — particularly transgender youth — were once again cast as political targets. And outside the Capitol, lawmakers and advocates made clear that the fight over their rights is far from over.
U.S. Military/Pentagon
4th Circuit rules against discharged service members with HIV
Judges overturned lower court ruling
A federal appeals court on Wednesday reversed a lower court ruling that struck down the Pentagon’s ban on people with HIV enlisting in the military.
The conservative three-judge panel on the 4th U.S. Circuit Court of Appeals overturned a 2024 ruling that had declared the Defense Department and Army policies barring all people living with HIV from military service unconstitutional.
The 4th Circuit, which covers Maryland, North Carolina, South Carolina, Virginia, and West Virginia, held that the military has a “rational basis” for maintaining medical standards that categorically exclude people living with HIV from enlisting, even those with undetectable viral loads — meaning their viral levels are so low that they cannot transmit the virus and can perform all duties without health limitations.
This decision could have implications for other federal circuits dealing with HIV discrimination cases, as well as for nationwide military policy.
The case, Wilkins v. Hegseth, was filed in November 2022 by Lambda Legal and other HIV advocacy groups on behalf of three individual plaintiffs who could not enlist or re-enlist based on their HIV status, as well as the organizational plaintiff Minority Veterans of America.
The plaintiffs include a transgender woman who was honorably discharged from the Army for being HIV-positive, a gay man who was in the Georgia National Guard but cannot join the Army, and a cisgender woman who cannot enlist in the Army because she has HIV, along with the advocacy organization Minority Veterans of America.
Isaiah Wilkins, the gay man, was separated from the Army Reserves and disenrolled from the U.S. Military Academy Preparatory School after testing positive for HIV. His legal counsel argued that the military’s policy violates his equal protection rights under the Fifth Amendment’s Due Process Clause.
In August 2024, a U.S. District Court sided with Wilkins, forcing the military to remove the policy barring all people living with HIV from joining the U.S. Armed Services. The court cited that this policy — and ones like it that discriminate based on HIV status — are “irrational, arbitrary, and capricious” and “contribute to the ongoing stigma surrounding HIV-positive individuals while actively hampering the military’s own recruitment goals.”
The Pentagon appealed the decision, seeking to reinstate the ban, and succeeded with Wednesday’s court ruling.
Judge Paul V. Niemeyer, one of the three-judge panel nominated to the 4th Circuit by President George H. W. Bush, wrote in his judicial opinion that the military is “a specialized society separate from civilian society,” and that the military’s “professional judgments in this case [are] reasonably related to its military mission,” and thus “we conclude that the plaintiffs’ claims fail as a matter of law.”
“We are deeply disappointed that the 4th Circuit has chosen to uphold discrimination over medical reality,” said Gregory Nevins, senior counsel and employment fairness project director for Lambda Legal. “Modern science has unequivocally shown that HIV is a chronic, treatable condition. People with undetectable viral loads can deploy anywhere, perform all duties without limitation, and pose no transmission risk to others. This ruling ignores decades of medical advancement and the proven ability of people living with HIV to serve with distinction.”
“As both the 4th Circuit and the district court previously held, deference to the military does not extend to irrational decision-making,” said Scott Schoettes, who argued the case on appeal. “Today, servicemembers living with HIV are performing all kinds of roles in the military and are fully deployable into combat. Denying others the opportunity to join their ranks is just as irrational as the military’s former policy.”
New York
Lawsuit to restore Stonewall Pride flag filed
Lambda Legal, Washington Litigation Group brought case in federal court
Lambda Legal and Washington Litigation Group filed a lawsuit on Tuesday, challenging the Trump-Vance administration’s removal of the Pride flag from the Stonewall National Monument in New York earlier this month.
The suit, filed in the U.S. District Court for the Southern District of New York, asks the court to rule the removal of the Pride flag at the Stonewall National Monument is unconstitutional under the Administrative Procedures Act — and demands it be restored.
The National Park Service issued a memorandum on Jan. 21 restricting the flags that are allowed to fly at National Parks. The directive was signed by Trump-appointed National Park Service Acting Director Jessica Bowron.
“Current Department of the Interior policy provides that the National Park Service may only fly the U.S. flag, Department of the Interior flags, and the Prisoner of War/Missing in Action flag on flagpoles and public display points,” the letter from the National Park Service reads. “The policy allows limited exceptions, permitting non-agency flags when they serve an official purpose.”
That “official purpose” is the grounds on which Lambda Legal and the Washington Litigation Group are hoping a judge will agree with them — that the Pride flag at the Stonewall National Monument, the birthplace of LGBTQ rights movement in the U.S., is justified to fly there.
The plaintiffs include the Gilbert Baker Foundation, Charles Beal, Village Preservation, and Equality New York.
The defendants include Interior Secretary Doug Burgum; Bowron; and Amy Sebring, the Superintendent of Manhattan Sites for the National Park Service.
“The government’s decision is deeply disturbing and is just the latest example of the Trump administration targeting the LGBTQ+ community. The Park Service’s policies permit flying flags that provide historical context at monuments,” said Alexander Kristofcak, a lawyer with the Washington Litigation Group, which is lead counsel for plaintiffs. “That is precisely what the Pride flag does. It provides important context for a monument that honors a watershed moment in LGBTQ+ history. At best, the government misread its regulations. At worst, the government singled out the LGBTQ+ community. Either way, its actions are unlawful.”
“Stonewall is the birthplace of the modern LGBTQ+ rights movement,” said Beal, the president of the Gilbert Baker Foundation. The foundation’s mission is to protect and extend the legacy of Gilbert Baker, the creator of the Pride flag.
“The Pride flag is recognized globally as a symbol of hope and liberation for the LGBTQ+ community, whose efforts and resistance define this monument. Removing it would, in fact, erase its history and the voices Stonewall honors,” Beal added.
The APA was first enacted in 1946 following President Franklin D. Roosevelt’s creation of multiple new government agencies under the New Deal. As these agencies began to find their footing, Congress grew increasingly worried that the expanding powers these autonomous federal agencies possessed might grow too large without regulation.
The 79th Congress passed legislation to minimize the scope of these new agencies — and to give them guardrails for their work. In the APA, there are four outlined goals: 1) to require agencies to keep the public informed of their organization, procedures, and rules; 2) to provide for public participation in the rule-making process, for instance through public commenting; 3) to establish uniform standards for the conduct of formal rule-making and adjudication; and 4) to define the scope of judicial review.
In layman’s terms, the APA was designed “to avoid dictatorship and central planning,” as George Shepherd wrote in the Northwestern Law Review in 1996, explaining its function.
Lambda Legal and the Washington Litigation Group are arguing that not only is the flag justified to fly at the Stonewall National Monument, making the directive obsolete, but also that the National Park Service violated the APA by bypassing the second element outlined in the law.
“The Pride flag at the Stonewall National Monument honors the history of the fight for LGBTQ+ liberation. It is an integral part of the story this site was created to tell,” said Lambda Legal Chief Legal Advocacy Officer Douglas F. Curtis in a statement. “Its removal continues the Trump administration’s disregard for what the law actually requires in their endless campaign to target our community for erasure and we will not let it stand.”
The Washington Blade reached out to the NPS for comment, and received no response.
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