National
Court strikes down DOMA in historic ruling
Anti-gay activist accuses Obama of ‘sabotaging’ case
Melba Abreu & Beatrice Hernandez are plaintiffs in the case Gill et al. v. Office of Personnel Management et al. (Photo courtesy GLAD)
A federal court in Massachusetts has issued two decisions finding that part of the Defense of Marriage Act is unconstitutional in response to legal challenges against the statute.
Judge Joseph Tauro of the U.S. District Court of Massachusetts ruled July 8 in the case of Gill v. U.S. Office of Personnel Management that DOMA violates the Equal Protection Clause of the U.S. Constitution.
In his decision, Tauro writes that “only sexual orientation” differentiates married couples that can receive federal benefits and those who cannot.
“As irrational prejudice plainly never constitutes a legitimate government interest, this court must hold that Section 3 of DOMA as applied to Plaintiffs violates the equal protection principles embodied in the Fifth Amendment to the United States Constitution,” he writes.
In a separate decision in the case of Commonwealth of Massachusetts v. Department of Health & Human Services, Tauro concludes that regulating marriage is a state’s right under the U.S. Constitution’s 10th Amendment. He says that DOMA violates this right for Massachusetts.
“The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state, and, in doing so, offends the Tenth Amendment,” Tauro writes. “For that reason, the statute is invalid.”
In a statement, Freedom to Marry Executive Director Evan Wolfson praised the court for its decision in the Gill case.
“Today’s ruling affirms what we have long known: federal discrimination enacted under DOMA is unconstitutional,” he said. “The decision will be appealed and litigation will continue. But what we witnessed in the courtroom cannot be erased: federal marriage discrimination harms committed same-sex couples and their families for no good reason.”
Brian Brown, president of the National Organization for Marriage, which opposes marriage rights for LGBT couples, criticized the decisions and Tauro’s willingness to overturn DOMA.
“With only Obama to defend DOMA, this federal judge has taken the extraordinary step of overturning a law passed by huge bipartisan majorities and signed into law by President Clinton in 1996,” Brown said. “A single federal judge in Boston has no moral right to decide the definition of marriage for the people of the United States.”
Brown attributed the rulings to the failure of U.S. Solicitor General Elena Kagan to defend DOMA adequately. Her nomination to become an associate justice for the U.S. Supreme Court is pending before the U.S. Senate.
“Under the guidance of Elena Kagan’s brief that she filed when she was solicitor general, Obama’s Justice Department deliberately sabotaged this case,” Brown said.
The rulings came in response to separate legal challenges filed last year by Massachusetts Attorney General Martha Coakley and Gay & Lesbian Advocates & Defenders.
During a conference call Thursday, Coakley said the court rulings were “a landmark decision” and a “very important step toward achieving equality for all married couples, particularly here in Massachusetts.”
“We believe that today is a victory for civil rights in Massachusetts and I hope progress toward the understanding of all as to why marriage equality is a civil rights issue,” she said.
Janson Wu, staff attorney for GLAD, said, “it’s almost certain” that both decisions will be stayed upon appeal to a higher court and that access to federal benefits for married same-sex couples right now is “almost somewhat an irrelevant point.”
“I think it’s safe to say that it’s likely that the judgment for both cases will not go into effect while the case is being appealed,” Wu said.
Both lawsuits in which the court reached decisions were aimed at Section 3 of DOMA, which prohibits the federal government from recognizing same-sex marriages.
But Doug NeJaime, a gay law professor at Loyola Law School, said the result of the Gill case doesn’t necessarily mean an end to Section 3 of DOMA, but only the programs to which the plaintiff couples in the case were denied access.
“This decision itself, while it puts pressure on Congress to repeal DOMA and provide case law in which to have broader challenges, it’s just sort of an initial chipping away at Section 3,” he said.
Nan Hunter, a lesbian law professor at Georgetown University, said her understanding of the Gill lawsuit is that it “only deals with the particular programs that these plaintiffs were challenging.”
“However, if they sustain this victory on appeal, there won’t be anything left of Section 3 of DOMA,” she said. “It won’t make sense for a court to uphold it as to any other provisions of federal law.”
NeJaime said the Gill opinion could set precedent that would influence marriage lawsuits elsewhere. In particular, NeJaime noted a passage in which Tauro discusses the relationship between procreation and marriage.
“This court can readily dispose of the notion that denying federal recognition to same-sex marriages might encourage responsible procreation, because the government concedes that this objective bears no rational relationship to the operation of DOMA,” Tauro writes.
The judge adds “a consensus” has emerged among the medical and psychological communities that children raised by LGBT people “are just as likely to be well-adjusted as those raised by heterosexual parents.”
NeJaime said Tauro’s decision to make this point as part of his ruling is “very relevant to broader analysis of the right to marry for same-sex couples.”
“I think he’s going down that path in a way that other courts might look to it,” he said.
NeJaime said this reasoning could be applied in the case of Perry v. Schwarzenegger, a legal challenge against the ban on same-sex marriage in California that is pending before Judge Vaughn Walker in district court.
Although social conservative groups defending the ban in this case have used the argument that marriage is for procreation, NeJaime said the Gill decision can provide a reference to counter that rationale.
“I think Judge Walker can look to not only the federal government’s rejection of those rationales in the DOMA cases, but this judge’s reasoning about why that’s not a good interest anyway,” NeJaime said.
Appeals likely for lawsuits
According to GLAD, the next step in the Gill case is for the federal government to decide whether it will appeal to the U.S. First Circuit Court of Appeals. That decision is expected within the next 60 days.
Tracy Schamler, a spokesperson for the U.S. Justice Department, said last week the Obama administration was still “reviewing the decision.” Many observers expect the rulings to be appealed.
Gary Buseck, legal director for GLAD, said he believed the Justice Department would have to appeal the decisions.
“Everyone tells us — and it seems to be true — that the executive branch has a responsibility to defend acts of Congress and it would be very difficult for them not to take an appeal of this,” he said. “I suppose anything is technically possible, but I think it would be unusual for them — highly unusual — for them not to appeal this decision from the judge.”
NeJaime said he also believed the Justice Department would appeal the decisions, although he didn’t believe the administration is required to do so.
“It’s certainly conventional to see a case like this [go] up the appeals chain, but there’s instances in which the government loses at the district court level and then there’s a policy change, so there’s nothing that forecloses that,” he said.
Still, Buseck said having a win at a lower court is helpful going into appeal and that Tauro wrote a “strong opinion” that will be helpful if the case goes to a higher court.
“We’ve got a platform, which is about the best possible platform we can have going to the First Circuit,” Buseck said.
NeJaime said the plaintiffs would have an added edge upon appeal with the Gill case because Tauro didn’t apply heightened scrutiny or consider LGBT people a suspect class in his opinion.
“If you went down the path of there’s a fundamental right because of the family relationship or sexual orientation as a suspect class, it would provide a sort of threshold question for both the Court of Appeals and the Supreme Court to really say, ‘Oh, he got it wrong,’ and then the rest of the analysis then sort of goes out the window,” NeJaime said.
Hunter said she believed having the case be appealed and succeed at a higher court would be beneficial in the effort to overturn DOMA.
“To have DOMA struck down by just one judge’s opinion — it’s not a very strong basis for getting rid of the statute,” she said. “So personally — and this is probably a reflection that I’m pretty optimistic about the overcome of repeal — I think we may better off, frankly, if they do appeal it and it goes to the U.S. Court of Appeals and wins in the Court of Appeals.”
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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