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Legal experts disagree over Obama action on ‘Don’t Ask’

Does Oath of Office force presidents to defend all laws?

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Nan Hunter, a Georgetown University law professor and prominent gay rights attorney, says President Obama has done the right thing in appealing a decision by a federal judge that overturned the ‘Don’t Ask, Don’t Tell’ law.

Hunter’s view contradicts the position of nearly all national LGBT rights groups, which have urged Obama not to appeal the decision. But she is joined by a number of other legal and constitutional experts who oppose ‘Don’t Ask, Don’t Tell’ but believe U.S. presidents are obligated to defend laws passed by Congress under most circumstances.

“I think the president, through the Justice Department, should defend federal laws, including this one,” Hunter said. “Otherwise you just get way too much. You get the president being able to ignore laws that are passed by Congress, and that’s not a good situation.”

Hunter cautioned LGBT activists that dismantling the longstanding tradition that presidents should defend duly enacted laws — even unpopular ones — could result in the refusal by a different president to enforce laws beneficial to LGBT people.

Other legal experts, including constitutional specialists with the American Civil Liberties Union and the LGBT litigation group Lambda Legal, agree that presidents generally should defend federal laws. But they say the obligation to defend a law should not apply to cases where strong evidence exists that the law is unconstitutional and a court issues a ruling overturning the law on constitutional grounds.

“The ACLU recognizes the Executive’s duty to ‘take care that the laws be faithfully executed,’” said ACLU Executive Director Anthony Romero in an Oct. 14 open letter to Attorney General Eric Holder.

“This duty includes the responsibility to defend Acts of Congress in court, provided there is at least a reasonable argument in favor of the Act’s constitutionality,” Romero said. “At the same time, the Executive is duty bound to ‘preserve, protect and defend the Constitution of the United States,’ which guarantees that no person is ‘deprived of life, liberty or property without due process of law.’”

Romero noted that U.S. District Court Judge Virginia Phillips in California ruled in September that the ‘Don’t Ask, Don’t Tell’ law is unconstitutional on those same grounds.

“The question is no longer whether the Executive will defend an Act of Congress, but whether the Executive will appeal from a well-reasoned, obviously correct federal court ruling based on findings of fact that are exceedingly unlikely to be reversed,” he said in his letter.

“Given these findings and the proper legal standard of review to be applied, there is no reasonable argument for the constitutionality of the policy, and no reason for the government to appeal,” he said.

Hunter, who personally opposes ‘Don’t Ask, Don’t Tell,’ said following that course could become a “political disaster” that prompts a possible Republican Congress next year to take action to reinstate the law or attempt to force the president to continue to enforce it.

A far better course of action, according to Hunter, would be for the administration to appeal the decision and use a careful, strategic approach to presenting its arguments before the appeals court.

“There are many, many possibilities for how the administration could respond,” she said. “It could respond by filing the appeal so that the case goes to the appeals court and then making arguments that represent the president’s view that it’s a bad law…And then the court of appeals will decide, and that will have much more authority than one District Court judge.”

Susan Sommer, director of constitutional litigation for Lambda Legal, says Obama should not have appealed Judge Phillip’s decision to overturn ‘Don’t Ask, Don’t Tell.’

“It’s really a shame that the Obama administration is appealing this decision,” Sommer said. “The president is in no position to appeal a decision on a policy that the courts say is unconstitutional. He has an obligation to uphold the Constitution.”

Sommer said she agrees that Obama has an obligation to uphold laws as well as the Constitution.

“But he does not have an obligation to defend a statute whose constitutionality is being challenged in court,” she said. “There have been precedents of a president not defending a law under court challenge. The Justice Department exercises discretion all the time on whether to take cases or not, both civil and criminal.”

David Rittgers, legal policy analyst for the Cato Institute, a libertarian think tank, and an attorney with the Army Reserves, called the ‘Don’t Ask, Don’t Tell’ case a “unique situation” that involves all three branches of the federal government.

Saying he’s speaking for himself and not the Army, Rittgers said he sides with those who believe the president should defend laws, including this one.

“Congress ultimately has to answer this question,” he said. “This will not be a settled issue until Congress acts. This is constitutionally within the realm of Congress.”

Susan Low Bloch, a Georgetown University law professor who specializes in constitutional law, said presidents have refused to enforce laws or chosen not to appeal court decisions overturning them mostly in cases where the law interferes with the president’s or the executive branch’s ability to carry out its duties.

“That’s not the situation with ‘Don’t Ask, Don’t Tell,’” she said. “And that’s why it’s not at all surprising to me that the administration has chosen to defend the law, even though they don’t like it. The way to get rid of it is to undo it the proper way—to get Congress to undo it.”

“Now if the court strikes it down, I’m sure behind the scenes the president will be very happy. But he’s not supposed to go into court and undermine it,” she said.

Asked whether she believes a president should wait for the Supreme Court to strike down a law before he or she can stop enforcing it, Bloch said, “Yes, that’s right.”

“People really shouldn’t be surprised at this course because … clearly this is the way the system has worked and I think should work,” she said.

(Obama photo by Michael Key)

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Peter Thiel’s expanding power — and his overlap with Jeffrey Epstein

Gay billionaire’s name appears 2,200 times in files, but no criminality alleged

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Peter Thiel (Washington Blade photo by Michael Key)

There are few figures in modern politics whose reach extends across Silicon Valley, Wall Street, and Washington, D.C., as Peter Thiel’s.

A billionaire venture capitalist, Thiel built his fortune at the dawn of the internet age and has since positioned himself at the highest levels of U.S. technology, finance, and national defense infrastructure. He is best known as a co-founder of PayPal, an early investor in Facebook, and the co-founder of Palantir Technologies — a data analytics firm that maintains significant contracts with U.S., U.K., and Israeli defense and intelligence agencies.

Over the last two decades, Thiel has also built an interconnected network of investment vehicles — Clarium Capital, Founders Fund, Thiel Capital, Valar Ventures, and Mithril Capital — giving him influence over emerging technologies, political candidates, and ideological movements aligned with his worldview. Through these firms, Thiel has backed companies in artificial intelligence, defense technology, biotech, cryptocurrency, and financial services, often positioning himself early in sectors that later became central to public policy debates.

Born in Frankfurt, West Germany, in 1967, Thiel immigrated to the United States as an infant. He later attended Stanford University, earning a degree in philosophy before graduating from Stanford Law School in 1992. As an undergraduate, he founded The Stanford Review, a conservative student publication that opposed what it described as campus “political correctness.” The paper became a platform for combative and contrarian arguments that previewed themes Thiel would revisit in later essays and speeches about elite institutions, democracy, and technological stagnation.

Thiel’s professional ascent coincided with the explosive growth of the dot-com era. In 1998, he co-founded PayPal, helping pioneer digital payment systems that would become foundational to online commerce. When the company was sold to eBay in 2002 for $1.5 billion, Thiel emerged a multimillionaire and part of what would later be known as the “PayPal Mafia” — a loose but influential network of founders and early employees who went on to launch or invest in some of Silicon Valley’s most dominant firms.

In 2004, Thiel made one of the most consequential investments of his career, providing $500,000 in seed funding to Facebook, then a fledgling social network founded by Mark Zuckerberg. He became the company’s first outside investor and later served on its board. That early bet proved extraordinarily lucrative and cemented Thiel’s status as a major venture capitalist with a reputation for identifying transformative platforms before they reached scale.

The same year, he co-founded Palantir Technologies. Initially backed in part by In-Q-Tel, the CIA’s venture capital arm, Palantir developed software — including its Gotham platform — designed to help defense, intelligence, and law enforcement agencies integrate and analyze massive datasets. The company’s tools allow users to map relationships, identify patterns, and visualize complex networks across financial records, communications data, and other digital trails.

Over time, Palantir secured billions of dollars in public-sector contracts. It has worked with the U.S. Department of Defense, Immigration and Customs Enforcement, the Centers for Disease Control and Prevention, and allied governments abroad. Public reporting has documented that its global government contracts exceed $1.9 billion, including agreements with Israeli defense entities — relationships that reportedly expanded following the Oct. 7 attacks in Israel. Critics have raised concerns about civil liberties and surveillance, while supporters argue the company provides essential national security tools.

By the mid-2000s, Thiel was no longer simply a wealthy entrepreneur. He was a financier operating at the intersection of capital, advanced technology, and government — with investments embedded in some of the country’s most sensitive security systems. His political giving would later extend that influence further, including support for candidates aligned with his populist and nationalist leanings– notably Donald Trump in 2016.

As his wealth and influence expanded, so too did his proximity to other powerful — and, in some cases, controversial — figures in global finance.

Among them was Jeffrey Epstein.

Thiel’s name appears more than 2,200 times in documents released so far by the U.S. Department of Justice related to Epstein. A name appearing in legal filings does not, by itself, indicate wrongdoing. However, the extensive references illustrate that Epstein’s social and financial network intersected with elite figures in technology, academia, politics, and finance — including individuals connected to Thiel’s business and philanthropic circles.

Epstein’s legal troubles became public in 2005, when police in Palm Beach, Fla., investigated allegations that he had sexually abused a minor. In 2008, he pleaded guilty in state court to soliciting prostitution from a minor under a plea agreement that was widely criticized as unusually lenient. He served 13 months in county jail with work-release privileges and was required to register as a sex offender. Comparable federal charges can carry significantly longer sentences.

Despite that conviction, Epstein continued to maintain relationships with prominent business and political figures for years. The extent to which members of elite networks remained in contact with him after his guilty plea has been the subject of extensive scrutiny.

Documents released by the Justice Department indicate that individuals connected to Thiel’s philanthropic and investment circles communicated with Epstein after his conviction. One document shows an invitation, sent on behalf of the Thiel Foundation, for Epstein to attend a technology event in San Francisco. Additional financial records and reporting indicate that between 2015 and 2016, Epstein invested approximately $40 million in funds managed by Valar Ventures, one of Thiel’s firms. Other records reflect meetings and correspondence, at times arranged through intermediaries. Epstein also extended invitations to his Caribbean residence.

There is no evidence that Thiel was involved in Epstein’s criminal conduct. The documented interactions do, however, show numerous planned meetings between the two both in the Caribbean (where Epstein’s infamous island is located) and across the world, while also raising questions about why business relationships continued after Epstein had pleaded guilty to a sex offense involving a minor and was a registered sex offender. For critics, that continued engagement speaks to the insular nature of elite finance, where access to capital and networks can override reputational risk.

Palantir represents another overlap. In emails made public through Justice Department releases, Epstein referenced Palantir in correspondence with Ehud Barak, the former Israeli prime minister who also maintained ties to Epstein. The emails do not indicate that Epstein had operational involvement in Palantir or access to its systems, however, they show that he discussed one of Thiel’s most strategically significant companies — a firm deeply integrated into Western defense and intelligence systems — with senior political figures abroad.

Separately, Thiel’s long-running dispute with Gawker Media offers additional insight into how he has exercised power outside traditional political channels.

After Gawker published an article in 2007 that publicly identified Thiel as gay, he later secretly funded litigation brought by professional wrestler Hulk Hogan over the outlet’s publication of a sex tape. The lawsuit resulted in a $140 million judgment against Gawker, which ultimately filed for bankruptcy. Thiel later confirmed his financial backing of the case, framing it as a defense of privacy and a response to what he considered reckless media behavior.

The episode demonstrated Thiel’s willingness to deploy substantial financial resources strategically and, at times, discreetly. It also illustrated how wealth can be used to influence institutions — whether through venture capital, political donations, or litigation.

Taken together, the record does not establish criminal liability for Thiel in connection with Epstein. It does, however, situate him within a dense web of elite finance, national security contracting, political influence, and reputation management. As additional documents related to Epstein continue to emerge, that web — and the decisions made within it — remains a subject of public interest and ongoing scrutiny.

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Supreme Court deals blow to trans student privacy protections

Under this ruling, parents are entitled to be informed about their children’s gender identity at school, regardless of state protections for student privacy.

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Transgender rights activists protest outside the Supreme Court in early 2026. (Washington Blade Photo by Michael Key)

The Supreme Court on Monday blocked a California policy that allowed teachers to withhold information about a student’s gender identity from their parents.

The policy had permitted California students to explore their gender identity at school without that information automatically being disclosed to their parents. Now, educators in the state will be required to inform parents about developments related to a student’s gender identity, depending on how the case proceeds in lower courts.

The case involves two sets of parents — identified in court filings as John and Jane Poe and John and Jane Doe — both of which say their daughters began identifying as boys at school without their knowledge, citing religious objections to gender transitioning.

The Poes say they only learned about their daughter’s gender dysphoria after she attempted suicide in eighth grade and was hospitalized. After treatment for the attempt and after being returned to school the following year, teachers continued using a male name and pronouns despite the parents’ objections, citing California law. The Poes have since placed their daughter in therapy and psychiatric care.

Similarly, the Does say their daughter has intermittently identified as a boy since fifth grade, but while their daughter was in seventh grade, they confronted school administrators over concerns that staff were using a male name and pronouns without informing them. The principal told them state law barred disclosure without the child’s consent.

Both sets of parents filed lawsuits in the U.S. District Court for the Southern District of California challenging the state policy that protects students’ gender identity and limits when schools can disclose that information to parents.

The justices voted along ideological lines, with the court’s six conservative members in the majority and the three liberal justices dissenting.

“We conclude that the parents who seek religious exemptions are likely to succeed on the merits of their Free Exercise Clause claim,” the court said in an unsigned order. “The parents who assert a free exercise claim have sincere religious beliefs about sex and gender, and they feel a religious obligation to raise their children in accordance with those beliefs. California’s policies violate those beliefs.”

In dissent, the three liberal justices argued that the case is still working its way through the lower courts and that there was no need for the high court to intervene at this stage. Justice Elena Kagan wrote, “If nothing else, this Court owes it to a sovereign State to avoid throwing over its policies in a slapdash way, if the Court can provide normal procedures. And throwing over a State’s policy is what the Court does today.”

Conservative Justices Samuel Alito and Clarence Thomas indicated they would have gone further and granted broader relief to the parents and teachers challenging the policy.

The emergency appeal from a group of teachers and parents in California followed a decision from the United States Court of Appeals for the Ninth Circuit that allowed the state’s policy to remain in effect. The appeals court had paused an order from U.S. District Judge Roger Benitez — who was nominated by George W. Bush — that sided with the parents and teachers and put the policy on hold.

The legal challenge was backed by the Thomas More Society, which relied heavily on a decision last year in which the court’s conservative majority sided with a group of religious parents seeking to opt their elementary school children out of engaging with LGBTQ-themed books in the classroom.

California Attorney General Rob Bonta expressed disappointment with the ruling. “We remain committed to ensuring a safe, welcoming school environment for all students while respecting the crucial role parents play in students’ lives,” his office said in a statement.

The decision comes as the Trump administration has taken a hardline approach to transgender rights. During his State of the Union address last week, President Donald Trump referenced Sage Blair, who previously identified as transgender and later detransitioned, describing Blair’s experience transitioning in a public school. According to the president, school employees supported Blair’s chosen gender identity and did not initially inform Blair’s parents.

President Donald Trump acknowledges Sage Blair, pictured second from left, during his speech at the State of the Union on Feb. 24. (Washington Blade photo by Michael Key)

Last year, the court upheld Tennessee’s ban on gender-affirming medical care for transgender minors and has allowed enforcement of a policy barring transgender people from serving in the military to continue during Trump’s second term.

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Comings & Goings

Gil Pontes III named to Financial Advisory Board in Wilton Manors

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Gil Pontes III

The Comings & Goings column is about sharing the professional successes of our community. We want to recognize those landing new jobs, new clients for their business, joining boards of organizations and other achievements. Please share your successes with us at [email protected]

Congratulations to Gil Pontes III on his recent appointment to the Financial Advisory Board for the City of Wilton Manors, Fla. Upon being appointed he said, “I’m honored to join the Financial Advisory Board for the City of Wilton Manors at such an important moment for our community. In my role as Executive Director of the NextGen Chamber of Commerce, I spend much of my time focused on economic growth, fiscal sustainability, and the long-term competitiveness of emerging business leaders. I look forward to bringing that perspective to Wilton Manors — helping ensure responsible stewardship of public resources while supporting a vibrant, inclusive local economy.”

Pontes is a nonprofit executive with years of development, operations, budget, management, and strategic planning experience in 501(c)(3), 501(c)(4), and political organizations. Pontes is currently executive director of NextGen, Chamber of Commerce. NextGen Chamber’s mission is to “empower emerging business leaders by generating insights, encouraging engagement, and nurturing leadership development to shape the future economy.” Prior to that he served as managing director of The Nora Project, and director of development also at The Nora Project. He has held a number of other positions including Major Gifts Officer, Thundermist Health Center, and has worked in both real estate and banking including as Business Solutions Adviser, Ironwood Financial. For three years he was a Selectman, Town of Berkley, Mass. In that role, he managed HR and general governance for town government. There were 200+ staff and 6,500 constituents. He balanced a $20,000,000 budget annually, established an Economic Development Committee, and hired the first town administrator.

Pontes earned his bachelor’s degree in political science from the University of Massachusetts, Dartmouth.

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