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.”
Wyoming
U.S. attorney nominee confirmed despite anti-LGBTQ history, no trial experience
Nine felony grand jury indictments tied to Darin Smith dismissed last week
Republicans confirmed Darin Smith as U.S. Attorney for the District of Wyoming on Monday, regardless of his history as interim U.S. Attorney for Wyoming and a state senator.
While serving as interim U.S. Attorney for Wyoming — after being appointed by President Donald Trump last July despite never trying a case outside of his time as a law student intern — former state Sen. Darin Smith likely prejudiced jurors during grand jury proceedings.
Nine felony grand jury indictments tied to Smith’s tenure were dismissed last week.
Judges dismissed felony indictments against Cheyenne Swett, Richard Allen, Michael Scott Hopper, Brian Joseph Johnson, Dennison Jay Antelope, Matthew Christopher Jacoby, Matthew Miller Jr., Wolf Elkins Duran, and Jose Benito Ocon. The now-dismissed charges included felony firearm possession, drug distribution, and possession of child pornography, among other allegations.
Smith allegedly told the grand jury that the defendants were “bad guys,” described them as “murderers,” and said deliberations “won’t take long.”
Even the U.S. Attorney’s Office for the District of Wyoming acknowledged that Smith’s comments were “ill-advised.”
Smith has a history of aligning with Trump over the Constitution and supporting anti-LGBTQ legislation.
In 2025, Smith co-sponsored House Bill 0194, titled “Obscenity amendments,” which, among other provisions, would have criminalized drag shows. The bill also would have repealed exemptions for public and school librarians from the crime of “promoting obscenity” to minors. The wording of the bill was so vague that Republican state Rep. Lee Filer said, “We will end up having to arrest somebody for allowing a child to read the Holy Bible.”
Smith also co-sponsored SF0062, a bill requiring public school students to use restrooms, sex-designated changing facilities, and sleeping quarters that align with their sex assigned at birth. In March 2025, the Wyoming governor signed the bill into law, along with its House companion.
He also attended the Jan. 6 Capitol riot alongside thousands of other Trump supporters.
“Smith was on the Capitol grounds on Jan. 6 … and made the reprehensible claim … that the hundreds of Capitol Police officers who risked their lives that day were guilty of ‘massive incompetence.’ Smith blames the police for what happened on Jan. 6. Without evidence, he claimed that rioters who breached the Capitol were victims of entrapment,” U.S. Sen. Dick Durbin (D-Ill.) said. “Moreover, Smith is not remotely qualified to be a U.S. Attorney. He’s going to be in the package — take it or leave it. Prior to becoming the interim U.S. Attorney, he had no courtroom or litigation experience whatsoever. None. And Smith’s lack of experience has had real-world consequences.”
Prior to his work in the Wyoming state legislature, Smith worked as Director of Planned Giving for the Family Research Council, an organization that describes homosexuality as “harmful” to society with “negative physical and psychological health effects.”
The organization also believes that sexual orientation “should [not] be included as a protected category in nondiscrimination laws or policies, as it is not comparable to inborn, immutable characteristics such as race or sex.”
During questioning before the U.S. Senate, he denied that his work with the organization shows he has loss of impartiality when it comes to matters of LGBTQ rights.
Also questioning, Smith was asked about a now-deleted Facebook post in which he appeared to express support for Kim Davis, the Kentucky county clerk who was found to be unconstitutional in her refusal to issue same-sex marriage licenses, despite Obergefell v. Hodges.
“Perhaps Hillary and Obama can share the cell with Kim Davis for refusing to uphold the Defense of Marriage Act,” the post said.
When asked why he posted it, Smith told Durbin: “I do not recall.”
Josh Sorbe, spokesperson for the Senate Judiciary Committee Democrats and Durbin, said:
“Anti-LGBTQ+ extremist Darin Smith has no business serving as a top law enforcement officer in any state — let alone a state with as much history of queer importance as Wyoming. He’s an unqualified insurrectionist with no experience litigating criminal or federal matters, and his bigotry puts into serious question his commitment to upholding the law for all Americans.”
Human Rights Campaign Vice President of Government Affairs David Stacy also condemned Smith’s confirmation to the U.S. Attorney’s office.
“The justice system in America is supposed to be about ensuring the law is applied fairly and equally. But Darin Smith has spent his career obsessed with making life worse for LGBTQ+ people, opposing marriage equality, cosponsoring state legislation targeting transgender youth, and smearing LGBTQ+ people in public statements,” Stacy said. “Just over two decades after Matthew Shepard was brutally murdered in that same state, Wyoming deserves better than tired anti-LGBTQ+ hate at the helm of federal law enforcement. The Senate should reject Darin Smith and demand a nominee who will put the people — and justice — first.”
Vermont
Vt. lawmaker equates transgender identity with bestiality
Vermont Democrats condemned comments, demanded apology
State Sen. Steven Heffernan (R-Addison) equated transgender people to bestiality on the Vermont Senate floor on May 15 while debating an animal cruelty bill.
Heffernan, who was elected in 2024 to the state Senate, constructed a scenario in which a trans person is indistinguishable from someone committing bestiality.
“In these crazy times, what happens if the individual identifies as an animal having intercourse with an animal? How is the courts going to handle that?” the former member of the Vermont Air National Guard said while debating House Bill 578. “Being that we voted through Prop Four, and if it does make it through this state, and I have a gender identity that I identify as a dog and had sex with my dog, is this law going to affect me?”
State Sen. Tanya Vyhovsky (D-Chittenden Central), who presented H. 578 responded professionally.
“The bill that we are putting forward in the current law is quite clear that any act between a person and an animal that involves contact with the mouth, sex organ, or anus of the person, and the mouth, sex organ, or anus of the animal, without a bona fide veterinary purpose, will be a crime.”
In the video, Heffernan continued to ask inappropriate questions — questions that Vyhovsky answered.
“If I identify as that animal, will this be able to … It says a person. I’m not a person. I’m identifying as this animal I’m having intercourse with,” he said. “We are identifying genders, of whatever gender we decide we want to be, and I think I like this bill. I’m going to vote for this bill, but I want to make this chamber aware of what’s coming.”
Vyhovsky made a statement saying this was a planned move in an attempt to “other” trans Vermonters instead of protecting them.
“Senator Heffernan knew exactly what he was doing,” said Vyhovsky. “Sen. Heffernan is using the same dehumanizing playbook that has been used against LGBTQ+ people for generations — the false, ugly suggestion that queer and trans identity is synonymous with deviance and harm. It was wrong then and it is wrong now.”
This derogatory action at the expense of trans people appears to be part of a pattern of behavior from Heffernan in his official capacity.
In March, Heffernan left the floor right before lawmakers voted on Proposal 4, conveniently missing the bill vote. PR 4, if passed by the state’s voters in the fall, would amend the state constitution to enshrine protections against unjust treatment, including discrimination based on a “person’s race, ethnicity, sex, religion, disability, sexual orientation, gender identity, gender expression, or national origin.”
Heffernan told VTDigger at the time that he left because his stomach was feeling “agitated” and he needed to use the restroom. He said he had not made up his mind on how to vote on the amendment, largely because he’d heard from constituents urging him both to vote for and against it.
“My pizza hit at the right time, I guess,” he said, calling the timing “convenient.”
Despite his leaving — and being the only lawmaker to do so — the state Senate voted to pass it 29-0, with Heffernan marked “absent.” This came after the state House of Representatives voted to pass it 128-14 last week.
Vermont Senate Democrats condemned the statement and used the opportunity to emphasize the need for the state to pass PR 4 on Nov. 4.
“In the wake of Sen. Heffernan’s comments, the stakes of this election couldn’t be more clear,” the statement provided to the Washington Blade read. “Transgender and nonbinary Vermonters are our neighbors, our friends, and our family members. On Friday, Sen. Heffernan used his platform as an elected official representing the people of Vermont to dehumanize them. Senate Democrats will never stop fighting for dignity for all Vermonters. We demand Senator Heffernan apologize to those he has harmed with his words and actions.”
State Sen. Kesha Ram Hinsdale (D-Chittenden Southeast), speaking in her capacity as chair of the Senate Ethics Panel, responded to similar transphobic comments made by President Donald Trump in a White House counterterrorism strategy document last week, in which he said those with “extreme transgender ideologies” should know “we will find you and we will kill you,” stating:
“A lot of people are living in fear in this country because of what somebody with the power of the pen and the power of the military is saying every day,” Hinsdale said. “Just because [speech] is protected does not mean it is worthy of this institution, and does not mean it is worthy of the office we hold and the power that we wield in the lives of Vermonters.”
The Blade reached out to Heffernan for comment but has not heard back.
Former U.S. Rep. Barney Frank (D-Mass.) died on Tuesday. He was 86.
The Massachusetts Democrat served in the U.S. House of Representatives from 1981-2013. Frank in 1987 became the first member of Congress to voluntarily come out as gay.
The Washington Blade earlier this month interviewed Frank after he entered hospice care at his Ogunquit, Maine, home where he lived with his husband, Jim Ready, since 2013. The former congressman, among other things, talked about his new book, “The Hard Path to Unity: Why We Must Reform the Left to Rescue Democracy.”
The book is scheduled for release on Sept. 15.
NBC Boston reported Frank’s sister, Ann Lewis, and a close family friend confirmed his death.
The Blade will update this article.
U.S. attorney nominee confirmed despite anti-LGBTQ history, no trial experience
Vt. lawmaker equates transgender identity with bestiality
Gay Men’s Chorus celebrates 45 years at annual gala
BREAKING NEWS: Barney Frank dies at 86
Intersex lives, constitutional freedom, and the dangerous future of Ghana’s Human Sexual Rights and Family Values Bill
Disillusioned about democracy? Think of it as a community garden
Honey, have we been priced out of gay paradise?
IDAHOBiT a reminder we all must stand up against transphobia
PHOTOS: Blade Summer Kickoff Party
