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BREAKING: Boehner appeals DOMA cases to Supreme Court

Appeals court found anti-gay law unconstitutional

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House Speaker John Boehner’s (R-Ohio) attorneys on Friday formally appealed to the U.S. Supreme Court an appeals court decision determining the Defense of Marriage Act was unconstitutional.

Drew Hammill, spokesperson for House Minority Leader Nancy Pelosi (D-Calif.), told the Washington Blade on Friday afternoon Republicans had notified Democratic leadership that House counsel filed an appeal to the Supreme Court.

The court ruling that was appealed was the First Circuit Court of Appeals decision in the cases of Gill v. Office of Personnel Management, which was filed by Gay & Lesbian Advocates & Defenders, and Commonwealth of Massachusetts v. Department of Health & Human Services. On May 31, the appellate court issued a decision that Section 3 of DOMA, which prohibits federal recognition of same-sex marriage, was unconstitutional as a result of both cases.

In a statement, Pelosi slammed Boehner for continuing to assert the constitutionality of DOMA, saying the appeal is a decision that will “waste more taxpayer funds to advance a position rejected by four different courts and to defend discrimination and inequality before the highest court in the land.”

“Democrats have rejected the Republican assault on equal rights, in the courts and in Congress,” Pelosi said. “We believe there is no federal interest in denying LGBT couples the same rights and responsibilities afforded to all couples married under state law. And we are confident that the Supreme Court, if it considers the case, will declare DOMA unconstitutional and relegate it to the dustbin of history once and for all.”

Boehner’s office didn’t immediately respond to a request to comment on the appeal.

In the filing, Boehner’s attorneys present two questions to the Supreme Court: (1) Whether Section 3 of the Defense of Marriage Act violates the equal protection component of the Due Process Clause of the Fifth Amendment; and (2) Whether the court below erred by inventing and applying to Section 3 of the Defense of Marriage Act a previously unknown standard of equal protection review.

“As the First Circuit recognized, this case calls out for this Court’s review,” the filing states. “The court of appeals has invalidated a duly-enacted Act of Congress and done so even though it acknowledged both that DOMA satisfies ordinary rational basis review and does not implicate heightened scrutiny. In the established world of equal protection law that result should have been impossible.”

The filing also cites a separation of powers issue as the result of the Obama administration no longer defending DOMA in court as it continues to enforce it and leaves the House to defend the law.

“Only this Court can settle this matter definitively,” the filing states. “Unless and until this Court decides the question, the executive branch will continue to attack DOMA in the courts, while continuing to enforce it, thus creating more potential litigation for the House to defend. This Court and this Court alone has the power to settle this question and redirect controversy over this important national question to the democratic process.”

Additionally, the filing argues the First Circuit ruling conflicts with Baker v. Nelson, a case related to same-sex marriage that the Supreme Court declined to hear in 1972.

Now that Boehner’s attorneys have filed an appeal, there will be 30 days for plaintiffs to file an opposition to the motion. It would then be left to the court to decide whether to grant cert, or hear the case. There isn’t a timeline for that, but it won’t happen while the court is in summer recess.

LGBT advocates also had harsh words for Boehner over his continued defense of DOMA.

Evan Wolfson, president of Freedom to Marry, called Boehner’s appeal “shameful” and said it’s time for him to “respect basic American values of equal protection under the law.”

“Same-sex couples have waited long enough for the federal government to treat their lawful marriages with the respect and fairness every American wants and deserves, especially in tough economic times,” Wolfson said. “Judges appointed by Presidents Nixon, Reagan, Clinton, ‘Bush 1,’ and ‘Bush 2,’ among others, have all agreed that there should be no ‘gay exception’ to the normal practice of the federal government honoring the marriages celebrated in the states, and providing the 1138-plus federal protections and responsibilities accorded all other married couples.”

In February 2011, the Obama administration announced it would no longer defend DOMA in court. After the decision, Boehner convened the House Bipartisan Legal Advisory Group, which voted 3-2 on a party-line basis to take up defense of DOMA in the administration’s stead.

To assist House general counsel Kerry Kircher in defending DOMA, Boehner hired Paul Clement, a former U.S. solicitor general under President George W. Bush. The cost cap to pay for House expenses in defending the law was set at $1.5 million.

Meanwhile, the Justice Department has filed legal briefs in favor of lawsuits against DOMA and sent Stuart Delery, who’s gay and the Justice Department’s acting assistant attorney general for the civil division, to make the case against the law in oral arguments.

Six federal courts have found that DOMA is unconstitutional as a result of cases filed by LGBT advocates. The ruling against DOMA in the First Circuit was the highest court to date to weigh in against the anti-gay law.

A White House spokesperson deferred comment to the Justice Department, which declined to comment.

NOTE: This article has been updated

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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

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Darin Smith (Photo public domain)

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.”

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Vermont

Vt. lawmaker equates transgender identity with bestiality

Vermont Democrats condemned comments, demanded apology

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Vermont state Sen. Steven Heffernan (R-Addison) (Photo public domain; courtesy Vermont General Assembly)

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.

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National

BREAKING NEWS: Barney Frank dies at 86

Former Mass. congressman came out as gay in 1987

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Former U.S. Rep. Barney Frank (D-Mass.) when he was in Congress. (Washington Blade photo by Michael Key)

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.

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