National

Court strikes down DOMA in historic ruling

Anti-gay activist accuses Obama of ‘sabotaging’ case

Published

15 years ago

July 15, 2010

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.”

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Federal Government

RFK Jr.’s HHS report pushes therapy, not medical interventions, for trans youth

‘Discredited junk science’ — GLAAD

Published

3 days ago

May 1, 2025

Christopher Kane

HHS Secretary Robert F. Kennedy Jr. (Washington Blade photo by Michael Key)

A 409-page report released Thursday by the U.S. Department of Health and Human Services challenges the ethics of medical interventions for youth experiencing gender dysphoria, the treatments that are often collectively called gender-affirming care, instead advocating for psychotherapy alone.

The document comes in response to President Donald Trump’s executive order barring the federal government from supporting gender transitions for anyone younger than 19.

“Our duty is to protect our nation’s children — not expose them to unproven and irreversible medical interventions,” National Institutes of Health Director Dr. Jay Bhattacharya said in a statement. “We must follow the gold standard of science, not activist agendas.”

While the report does not constitute clinical guidance, its findings nevertheless conflict with not just the recommendations of LGBTQ advocacy groups but also those issued by organizations with relevant expertise in science and medicine.

The American Medical Association, for instance, notes that “empirical evidence has demonstrated that trans and non-binary gender identities are normal variations of human identity and expression.”

Gender-affirming care for transgender youth under standards widely used in the U.S. includes supportive talk therapy along with — in some but not all cases — puberty blockers or hormone treatment.

“The suggestion that someone’s authentic self and who they are can be ‘changed’ is discredited junk science,” GLAAD President and CEO Sarah Kate Ellis said in a statement. “This so-called guidance is grossly misleading and in direct contrast to the recommendation of every leading health authority in the world. This report amounts to nothing more than forcing the same discredited idea of conversion therapy that ripped families apart and harmed gay, lesbian, and bisexual young people for decades.”

GLAAD further notes that the “government has not released the names of those involved in consulting or authoring this report.”

Janelle Perez, executive director of LPAC, said, “For decades, every major medical association–including the American Medical Association and the American Academy of Pediatrics–have affirmed that medical care is the only safe and effective treatment for transgender youth experiencing gender dysphoria.

“This report is simply promoting conversion therapy by a different name – and the American people know better. We know that conversion therapy isn’t actually therapy – it isolates and harms kids, scapegoats parents, and divides families through blame and rejection. These tactics have been used against gay kids for decades, and now the same people want to use them against transgender youth and their families.

“The end result here will be a devastating denial of essential health care for transgender youth, replaced by a dangerous practice that every major U.S. medical and mental health association agree promotes anxiety, depression, and increased risk of suicidal thoughts and attempts.

“Like being gay or lesbian, being transgender is not a choice, and no amount of pressure can force someone to change who they are. We also know that 98% of people who receive transition-related health care continue to receive that health care throughout their lifetime. Trans health care is health care.”

“Today’s report seeks to erase decades of research and learning, replacing it with propaganda. The claims in today’s report would rip health care away from kids and take decision-making out of the hands of parents,” said Shannon Minter, legal director of NCLR. “It promotes the same kind of conversion therapy long used to shame LGBTQ+ people into hating themselves for being unable to change something they can’t change.”

“Like being gay or lesbian, being transgender is not a choice—it’s rooted in biology and genetics,” Minter said. “No amount or talk or pressure will change that.”

Human Rights Campaign Chief of Staff Jay Brown released a statement: “Trans people are who we are. We’re born this way. And we deserve to live our best lives and have a fair shot and equal opportunity at living a good life.

“This report misrepresents the science that has led all mainstream American medical and mental health professionals to declare healthcare for transgender youth to be best practice and instead follows a script predetermined not by experts but by Sec. Kennedy and anti-equality politicians.”

The White House

Trump nominates Mike Waltz to become next UN ambassador

Former Fla. congressman had been national security advisor

Published

3 days ago

May 1, 2025

Michael K. Lavers

U.N. headquarters in New York (Washington Blade photo by Michael K. Lavers)

President Donald Trump on Thursday announced he will nominate Mike Waltz to become the next U.S. ambassador to the U.N.

Waltz, a former Florida congressman, had been the national security advisor.

Trump announced the nomination amid reports that Waltz and his deputy, Alex Wong, were going to leave the administration after Waltz in March added a journalist to a Signal chat in which he, Defense Secretary Pete Hegseth, and other officials discussed plans to attack Houthi rebels in Yemen.

“I am pleased to announce that I will be nominating Mike Waltz to be the next United States ambassador to the United Nations,” said Trump in a Truth Social post that announced Waltz’s nomination. “From his time in uniform on the battlefield, in Congress and, as my National Security Advisor, Mike Waltz has worked hard to put our nation’s Interests first. I know he will do the same in his new role.”

Trump said Secretary of State Marco Rubio will serve as interim national security advisor, “while continuing his strong leadership at the State Department.”

“Together, we will continue to fight tirelessly to make America, and the world, safe again,” said Trump.

Trump shortly after his election nominated U.S. Rep. Elise Stefanik (R-N.Y.) to become the next U.S. ambassador to the U.N. Trump in March withdrew her nomination in order to ensure Republicans maintained their narrow majority in the U.S. House of Representatives.

U.S. Federal Courts

Second federal lawsuit filed against White House passport policy

Two of seven plaintiffs live in Md.

Published

7 days ago

April 28, 2025

Michael K. Lavers

Lambda Legal on April 25 filed a federal lawsuit on behalf of seven transgender and nonbinary people who are challenging the Trump-Vance administration’s passport policy.

The lawsuit, which Lambda Legal filed in U.S. District Court for the District of Maryland in Baltimore, alleges the policy that bans the State Department from issuing passports with “X” gender markers “has caused and is causing grave and immediate harm to transgender people like plaintiffs, in violation of their constitutional rights to equal protection.”

Two of the seven plaintiffs — Jill Tran and Peter Poe — live in Maryland. The State Department, Secretary of State Marco Rubio, and the federal government are defendants.

“The discriminatory passport policy exposes transgender U.S. citizens to harassment, abuse, and discrimination, in some cases endangering them abroad or preventing them from traveling, by forcing them to use identification documents that share private information against their wishes,” said Lambda Legal in a press release.

Zander Schlacter, a New York-based textile artist and designer, is the lead plaintiff.

The lawsuit notes he legally changed his name and gender in New York.

Schlacter less than a week before President Donald Trump’s inauguration “sent an expedited application to update his legal name on his passport, using form DS-5504.”

Trump once he took office signed an executive order that banned the State Department from issuing passports with “X” gender markers. The lawsuit notes Schlacter received his new passport in February.

“The passport has his correct legal name, but now has an incorrect sex marker of ‘F’ or ‘female,'” notes the lawsuit. “Mr. Schlacter also received a letter from the State Department notifying him that ‘the date of birth, place of birth, name, or sex was corrected on your passport application,’ with ‘sex’ circled in red. The stated reason was ‘to correct your information to show your biological sex at birth.'”

“I, like many transgender people, experience fear of harassment or violence when moving through public spaces, especially where a photo ID is required,” said Schlacter in the press release that announced the lawsuit. “My safety is further at risk because of my inaccurate passport. I am unwilling to subject myself and my family to the threat of harassment and discrimination at the hands of border officials or anyone who views my passport.”

Former Secretary of State Antony Blinken in June 2021 announced the State Department would begin to issue gender-neutral passports and documents for American citizens who were born overseas.

Dana Zzyym, an intersex U.S. Navy veteran who identifies as nonbinary, in 2015 filed a federal lawsuit against the State Department after it denied their application for a passport with an “X” gender marker. Zzyym in October 2021 received the first gender-neutral American passport.

Lambda Legal represented Zzyym.

The State Department policy took effect on April 11, 2022.

Trump signed his executive order shortly after he took office in January. Germany, Denmark, Finland, and the Netherlands are among the countries that have issued travel advisories for trans and nonbinary people who plan to visit the U.S.

A federal judge in Boston earlier this month issued a preliminary injunction against the executive order. The American Civil Liberties Union filed the lawsuit on behalf of seven trans and nonbinary people.