National
End of DOMA raises concerns about lingering inequities
Social Security, military benefits could remain problematic after court decision
Issues for married same-sex couples may remain even if the Supreme Court strikes down DOMA. (Washington Blade photo by Michael Key)
While many same-sex couples throughout the country have high hopes that a U.S. Supreme Court ruling striking down the Defense of Marriage Act would mean their marriages would finally have legal status in the eyes of the federal government, certain problems may persist even if the court kills the law.
Depending on the scope of a Supreme Court ruling against Section 3 of DOMA, areas of the law in which couples may continue to face challenges include Social Security benefits — especially if a couple moves to a state that doesn’t recognize their marriages — as well as spousal benefits when one party of the couple is a member of the military, although the immigration issue preventing bi-national couples from staying together in the United States is expected to cease immediately.
Mary Bonauto, civil rights director for Gay & Lesbian Advocates & Defenders, said prior to oral arguments one issue in a post-DOMA world is Social Security benefits if a same-sex couple marries in one state and moves to another where their union isn’t recognized. The survivor benefits given to spouses upon the death of their loved ones is among the more than 1,000 federal benefits withheld from married gay couples under DOMA.
“Say you are married in Massachusetts … and you apply for Social Security in Massachusetts, there would be no doubt with DOMA gone, that your spouse is a spouse for Social Security purposes,” Bonauto said. “However, should you relocate to Florida and apply for Social Security benefits there, it’s more of a problem because Social Security law is going to look at the validity of the marriage at the time you apply for benefits, so your state of residence at the time you apply really matters.”
Bonauto added the aftermath of a ruling striking down DOMA may create “a patchwork” that in some situations would make same-sex marriage dependent on their state validity. Ironing out this patchwork, she said, would take either more litigation, legislation or advocacy within the administration to make changes.
“The overwhelming majority of federal programs don’t specify what state law applies, so it may just be for some situations, a matter of some guidance coming for the agencies that say whether you’re married for a particular benefit,” Bonauto added. “That’s a very practical nuts-and-bolts thing that, you know, we don’t have the luxury of worrying about right now because DOMA is still on the books.”
Susan Silber, a lesbian Takoma Park-based lawyer who specializes in family law for gay couples, said a ruling could affect gay couples differently if the court strikes down DOMA but leaves the constitutional right to marry in the case against California’s Proposition 8 an open question.
“Let’s say a couple was married for 30 years, but because they couldn’t get married until two years ago, it would look technically like they’ve only been married for two years,” Silber said. “But when they’re now dividing up their property, will courts say, ‘Oh you’ve only been married two years, there’s not a lot of marital property to buy?’ or will the court recognize that longer-term relationships deserve some recognition and do some kind of equity based on the non-technical part.”
The Human Rights Campaign didn’t respond to requests for comment on lingering issues for married gay couples.
But the general agreement is that the Respect for Marriage Act, legislation designed to repeal DOMA, would address lingering problems regarding state validity because of the “certainty clause” in the bill. Under that provision, gay couples that legally marry in one jurisdiction would be assured federal benefits even if they move to another state that doesn’t recognize same-sex marriage. The Respect for Marriage Act has yet to be introduced in the 113th Congress.
Sen. Tammy Baldwin (D-Wis.) said during a Blade interview on Monday that she thinks the Respect for Marriage Act could see additional co-sponsors in the wake of so many legislators coming out for marriage equality, but certain bills may have to be rewritten in the aftermath of a court ruling striking DOMA before going forward.
“I think that trend is a very positive one, and, yet, once the Supreme Court in June announces its decision in these two cases, we’re going to have to read those decisions very carefully, understand their reach, impact and then go about the task of looking at their impact on pending legislation,” Baldwin said. “So it may mean that certain things need to be re-written. And that will be a joyous task if we made progress, but we still have a little bit more to go.”
Jon Davidson, legal director or Lambda Legal, was optimistic adjustments could be made, saying the federal government has had to determine previously whether to recognize certain marriages and disputed any notion advanced by DOMA proponents that overturning the law would create a legal mess.
“It’s very important that it be understood that that argument is baseless, as this issue has always existed without creating undue burdens for the federal government,” Davidson said. “For example, some states allow first cousins, or uncles and nieces and aunts and nephews, to marry, and some other states will not allow couples that closely related to marry and will not recognize marriages like those entered in other states as valid for purposes of their own state law.”
Another piece of legislation may be necessary to address the benefits issue for gay service members with same-sex spouses. Sections of U.S. code governing benefits for U.S. service members define marriage as one man, one woman independent of DOMA. Titles 10, 32 and 37 are controlled by DOMA in terms of their definition of marriage, but Title 38, which addresses veterans benefits, defines “spouse” and “surviving spouse” in similar terms and restricts the definitions of persons to the “opposite sex.”
Sen. Jeanne Shaheen (D-N.H.), who sponsors legislation known as Charlie Morgan Act that would afford benefits to gay troops, said in a statement to the Blade that she’s prepared to push forward with the bill in the event that the Supreme Court ruling doesn’t address this issue.
“The Charlie Morgan Act would amend the definition of ‘spouse’ in the federal code in four areas and in turn grant same-sex military couples many benefits that they’ve rightfully earned,” Shaheen said. “Depending on how the Supreme Court rules on DOMA, legislation like this could still be necessary to ensure fairness and equality for all our men and women serving in uniform. Regardless of how the Supreme Court rules, I will continue to work with my colleagues on behalf of our LGBT servicemen and women, and their families, because no one should be denied benefits due to their sexual orientation.”
There may be other difficulties as well. A blog posting Monday from National Public Radio’s Michelle Andrews speculates that married gay couples may have trouble covering their families with company insurance, although many businesses are pre-emptively addressing the issue.
“If a same-sex couple both lives and works in the District there may not be insurance difficulties,” Andrews writes. “But what if one of them works in Virginia, where same-sex marriage isn’t recognized? If a Virginia-based employer doesn’t voluntarily provide benefits to same-sex spouses, the employee might not be able to insure a spouse even though they’re legally married in the state where they live.”
But one issue that’s expected to immediately go away in the inability of gay Americans to sponsor their spouses for residency in the United States via a marriage-based green card application. Each time when asked to address the issue, the Obama administration has cited Section 3 of DOMA — and only Section 3 of DOMA — as the reason why sponsorship of a foreign spouse is unavailable for gay couples.
Lavi Soloway, a gay immigration attorney and founder of The DOMA Project, explained during a conference call last week that gay Americans should be able to sponsor their same-sex couples for residency in the United States immediately after the law is struck down.
“The moment the Defense of Marriage is struck down, green card petitions filed by same-sex married couples can be approved,” Soloway said. “There’s no other barrier; we’ve established that by filing 70 green card petitions over the last three years, we’ve established that with 40 appeals to the Board of Immigration Appeals, we’ve established that with 10 remanded cases from the Board of Immigration Appeals. The government’s position is that the law prevents same-sex couples from access only because of Section 3 of the Defense of Marriage Act. I’ve no expectation that the Obama administration will have any different opinion the day after DOMA is struck down — if that happens.”
New York
Court orders Pride flag to return to Stonewall
Lambda Legal, Washington Litigation Group filed federal lawsuit
The Pride flag will once again fly over the Stonewall National Monument in New York following a court order requiring the National Park Service to raise it over the site.
The decision follows a lawsuit filed by Lambda Legal and the Washington Litigation Group in the U.S. District Court for the Southern District of New York, which challenged the removal as unconstitutional under the Administrative Procedure Act and argued that the government unlawfully targeted the LGBTQ community.
In February, the NPS removed the Pride flag from the Stonewall National Monument, the first national monument dedicated to LGBTQ rights and history in the U.S. The move followed a Jan. 21 memorandum issued by President Donald Trump-appointed NPS Director Jessica Bowron restricting which flags may be flown at national parks. The directive limited displays to official government flags, with narrow exceptions for those deemed to serve an “official purpose.”
Plaintiffs successfully argued that the Pride flag meets that standard, given Stonewall’s status as the birthplace of the modern LGBTQ rights movement. They also contended that the policy violated the APA by bypassing required public input and improperly applying agency rules.
The lawsuit named Interior Secretary Doug Burgum, Bowron, and Amy Sebring, superintendent of Manhattan sites for the NPS, as defendants. Plaintiffs included the Gilbert Baker Foundation, Village Preservation, Equality New York, and several individuals.
The court found that the memorandum — while allowing limited exceptions for historical context purposes — was applied unlawfully in this case. As part of the settlement, the NPS is required to rehang the Pride flag on the monument’s official flagpole within seven days, where it will remain permanently.
“The sudden, arbitrary, and capricious removal of the Pride flag from the Stonewall National Monument was yet another act by this administration to erase the LGBTQ+ community,” said Karen Loewy, co-counsel for plaintiffs and Lambda Legal’s Senior Counsel and Director of Constitutional Law Practice. “Today, the government has pledged to restore this important symbol back to where it belongs.”
“This is a complete victory for our clients and for the LGBTQ+ community,” said Alexander Kristofcak, lead counsel for plaintiffs and a lawyer with Washington Litigation Group. “The government has acknowledged what we argued from day one: the Pride flag belongs at Stonewall. The flag will be restored and it will fly officially and permanently. And we will remain vigilant to ensure that the government sticks to the deal.”
“Gilbert Baker created the Rainbow Pride flag as a symbol of hope and liberation,” said Charles Beal, president of the Gilbert Baker Foundation. “Today, that symbol is restored to the place where it belongs, standing watch over the birthplace of the modern LGBTQ+ rights movement.”
“The government tried to erase an important symbol of the LGBTQ+ community, and the community said no,” said Amanda Babine, executive director of Equality New York. “Today’s accomplishment proves that when we stand together and fight back, we win.”
“The removal of the Pride flag from Stonewall was an attempt to erase LGBTQ+ history and undermine the rule of law,” said Andrew Berman, executive director of Village Preservation. “This settlement restores both.”
With Loewy on the complaint are Douglas F. Curtis, Camilla B. Taylor, Omar Gonzalez-Pagan, Kenneth D. Upton Jr., Jennifer C. Pizer, and Nephetari Smith from Lambda Legal. With Kristofcak on the complaint are Mary L. Dohrmann, Sydney Foster, Kyle Freeny, James I. Pearce, and Nathaniel Zelinsky from Washington Litigation Group.
Federal Government
Trump budget targets ‘gender extremism’
Proposed spending package would target ‘leftist’ political ideologies
The White House submitted its 2027 budget request to Congress last month, outlining a push for the Federal Bureau of Investigation to “proactively” target what it describes as “extremism” related to gender — raising concerns about the potential for law enforcement to target LGBTQ people.
The Trump-Vance administration’s 2027 budget request, submitted to Congress on April 4, proposes a dramatic increase in national security and law enforcement spending, while reducing foreign aid and restructuring multiple domestic security programs. In total, the administration is requesting $2.16 trillion in discretionary budget authority (including mandatory resources), a 15.3 percent increase over the 2026 proposal.
Central to the proposal is the creation of a new “NSPM-7 Joint Mission Center,” a direct follow-up to the September 2025 National Security Presidential Memorandum 7 (NSPM-7). The directive instructs the Justice Department, the FBI, and other national security agencies to combat what the administration defines as “political violence in America,” effectively reshaping the Joint Terrorism Task Force network to focus on “leftist” political ideologies, according to reporting by independent journalist Ken Klippenstein.
The American Civil Liberties Union has characterized NSPM-7 as a way for President Donald Trump to intimidate his political enemies.
In a press release following the memorandum, Hina Shamsi, director of the ACLU’s National Security Project, said, “President Trump has launched yet another effort to investigate and intimidate his critics,” and had described the move as an “intimidation tactic against those standing up for human rights and civil liberties.”
The proposed mission center would include personnel from 10 federal agencies tasked with targeting “domestic terrorists” associated with a wide range of ideologies. Among them is what the administration labels “extremism” related to gender, alongside categories such as “anti-Americanism,” “anti-capitalism,” “anti-Christianity,” and “support for the overthrow of the U.S. government.” The document also cites “hostility toward those who hold traditional American views” on family, religion, and morality — language LGBTQ advocates have increasingly warned could be used to frame queer and transgender rights movements as ideological threats.
The mission center is one component of a proposed $166 million increase in the FBI’s counterterrorism budget.
In total, the FBI would receive $12.5 billion for salaries and expenses under the proposal, a $1.9 billion increase. Planned investments include unmanned aerial systems operations and counter-drone capabilities, counterterrorism efforts, and security preparations for the 2028 Summer Olympics in Los Angeles. The budget also cites 67,000 FBI arrests since Jan. 20, 2026, which it describes as a 197 percent increase from the prior year.
When Congress passed the USA PATRIOT Act in 2001, it also enacted 18 U.S.C. § 2331(5), which defines domestic terrorism as activities involving acts dangerous to human life that violate criminal laws and are intended to intimidate or coerce civilians or influence government policy through violence. That statutory definition has not changed.
However, federal agencies have historically categorized domestic terrorism threats into groups such as racially or ethnically motivated violent extremism, anti-government or anti-authority violent extremism, and other threats, including those tied to bias based on religion, gender, or sexual orientation.
The language in the budget suggests a shift in how those categories are interpreted and applied — particularly by explicitly linking “extremism” to gender and to perceived opposition to “traditional” views — without any corresponding change to federal law. Only Congress has the power to change the definition of domestic terrorism by passing legislation.
The budget document states:
“DT lone offenders will continue to pose significant detection and disruption challenges because of their capacity for independent radicalization to violence, ability to mobilize discretely, and access to firearms. Additionally, in recent years, heinous assassinations and other acts of political violence in the United States have dramatically increased. Commonly, this violent conduct relates to views associated with anti-Americanism, anti-capitalism, and anti-Christianity; support for the overthrow of the U.S. government; extremism on migration, race, and gender; and hostility toward those who hold traditional American views on family, religion, and morality.”
This language echoes earlier actions by the Trump-Vance administration targeting trans people.
On the first day of his second term, President Trump signed Executive Order 14168, titled “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.”
The order establishes a strict binary definition of sex and withdraws federal recognition of trans people.
“It is the policy of the United States to recognize two sexes, male and female,” the order states. “‘Sex’ shall refer to an individual’s immutable biological classification as either male or female. ‘Sex’ is not a synonym for and does not include the concept of ‘gender identity.’”
Appropriations committees in both chambers are expected to begin hearings in the coming weeks.
Puerto Rico
The ‘X’ returns to court
1st Circuit hears case over legal recognition of nonbinary Puerto Ricans
Eight months ago, I wrote about this issue at a time when it had not yet reached the judicial level it faces today. Back then, the conversation moved through administrative decisions, public debate, and political resistance. It was unresolved, but it had not yet reached this point.
That has now changed.
Lambda Legal appeared before the 1st U.S. Court of Appeals in Boston, urging the court to uphold a lower court ruling that requires the government of Puerto Rico to issue birth certificates that accurately reflect the identities of nonbinary individuals. The appeal follows a district court decision that found the denial of such recognition to be a violation of the U.S. Constitution.
This marks a turning point. The issue is no longer theoretical. A court has already determined that unequal treatment exists.
The argument presented by the plaintiffs is grounded in Puerto Rico’s own legal framework. Identity birth certificates are not static historical records. They are functional documents used in everyday life. They are required to access employment, education, and essential services. Their purpose is practical, not symbolic.
Within that framework, the exclusion of nonbinary individuals does not stem from a legal limitation. Puerto Rico already allows gender marker corrections on birth certificates for transgender individuals under the precedent established in Arroyo Gonzalez v. Rosselló Nevares. In addition, the current Civil Code recognizes the existence of identity documents that reflect a person’s lived identity beyond the original birth record.
The issue lies in how the law is applied.
Recognition is granted within specific categories, while those who do not identify within that binary structure remain excluded. That exclusion is now at the center of this case.
Lambda Legal’s position is straightforward. Requiring individuals to carry documents that do not reflect who they are forces them into misrepresentation in essential aspects of daily life. This creates practical barriers, exposes them to scrutiny, and places them in a constant state of vulnerability.
The plaintiffs, who were born in Puerto Rico, have made clear that access to accurate identification is not symbolic. It is a basic condition for moving through the world without contradiction imposed by the state.
The fact that this case is now being addressed in the federal court system adds another layer of significance. This is not a pending policy discussion or a legislative proposal. It is a constitutional question. The analysis is not about political preference, but about rights and equal protection under the law.
This case does not exist in isolation.
It unfolds within a broader context in which debates over identity and rights have increasingly been shaped by the growing influence of conservative perspectives in public policy, both in the United States and in Puerto Rico. At the local level, this influence has been reflected in legislative discussions where religious arguments have begun to intersect with decisions that should be grounded in constitutional principles. That intersection creates tension around the separation of church and state and has direct consequences for access to rights.
Recognizing this context is not an attack on faith or religious practice. It is an acknowledgment that when certain perspectives move into the realm of public authority, they can shape outcomes that affect specific communities.
From within Puerto Rico, this is not a distant debate. It is a lived reality. It is present in the difficulty of presenting identification that does not match one’s identity, and in the consequences that follow in workplaces, schools, and government spaces.
The progression of this case introduces the possibility of change within the applicable legal framework. Not because it resolves every tension surrounding the issue, but because it establishes a legal examination of a practice that has long operated under exclusion.
Eight months ago, the conversation centered on ongoing developments. Today, there is already a judicial finding that identifies a violation of rights. What remains is whether that finding will be upheld on appeal.
That process does not guarantee an immediate outcome, but it shifts the ground.
The debate is no longer theoretical.
It is now before the courts.
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