National
DOJ asks Supreme Court to prioritize Windsor’s DOMA challenge
Brief says Second Circuit ‘most appropriate vehicle’ for justices
The Justice Department is asking DOJ to prioritize Edith Windsor‘s challenge against DOMA (Washington Blade file photo by Michael Key)
The Obama administration is asking the U.S. Supreme Court to make the case of an 83-year-old New York lesbian who had to pay $363,000 in estate taxes its highest priority among the pending lawsuits challenging the Defense of Marriage Act.
In an 11-page supplemental brief filed on Friday, U.S. Solicitor General Donald Verrilli writes that the case of Windsor v. United States — which recently led the U.S. Second Circuit Court of Appeals to conclude DOMA is unconstitutional — should take precedence among other pending lawsuits challenging the anti-gay law.
Previously, the Justice Department has said the consolidated case of Gill v. Office of Personnel Management and Commonwealth of Massachusetts v. Department of Health & Human Services — which was filed respectively by Gay & Lesbian Advocates & Defenders and Massachusetts Attorney General Martha Coakley — should be the priority because the case once was the only one in which an appeals court ruled against DOMA.
However, that changed after the ruling by the Second Circuit, which became the first appeals court to apply heightened scrutiny — or a greater assumption the law is unconstitutional — in its ruling against DOMA. The application of heightened scrutiny is suggested in the Justice Department as the reason why the Windsor case should take precedence, although it’s not explicitly stated.
“Although Department of Health and Human Services v. Massachusetts… is also a case in which a court of appeals has rendered a decision, this case now provides the most appropriate vehicle for this Court’s resolution of the constitutionality of Section 3 of DOMA,” the brief states. “In particular, the court of appeals in Massachusetts was constrained by binding circuit precedent as to the applicable level of scrutiny … whereas the court of appeals here was not so constrained, and its analysis may be beneficial to this Court’s consideration of that issue.”
The plaintiff in the case, which was filed by groups including the American Civil Liberties Union, is Edith Windsor, who was forced to pay $363,000 in estate taxes in 2009 upon the death of her spouse, Thea Spyer. The two had lived as a couple for 44 years and married in Canada in 2007.
In a statement, Windsor said she’s “pleased” the Justice Department underscoring the importance of her lawsuit against DOMA.
“I am so pleased that the U.S. Solicitor General has recommended that the Supreme Court grant certiorari in my case,” Windsor said. “It has been a long journey up to this point, and I remain hopeful that I will be alive to see the day soon when justice is done for me and for all other married gay and lesbian couples.”
The Justice Department brief explains that the administration previously had concerns about the Windsor case, but each of these concerns was addressed in the Second Circuit ruling. Chief among them was that no appellate court had weighed on the lawsuit, which was obviously addressed when the Second Circuit made its decision.
Additionally, Paul Clement, a private attorney who’s defending the lawsuit on behalf of House Republicans, contended the lawsuit should be brought to certification before the New York’s highest court, the New York Court of Appeals, to allow before the case could move forward because New York had yet to legalize same-sex marriage in 2009. The Justice Department points the Second Circuit dismissed this argument in its decision.
“[A]fter finding New York law sufficiently clear to resolve the issue directly rather than requiring certification to the New York Court of Appeals, the court of appeals unanimously held — consistent with the ‘useful and unanimous’ rulings of New York’s intermediate appellate courts — that New York law recognized plaintiff ’s foreign marriage at the relevant time,” the brief states.
Finally, based on previous case law, the Justice Department disputes a notion that the previous brief asking the Supreme Court to take up the lawsuit should be abrogated in the wake of the Second Circuit.
“Although the government’s petition in this case was filed as one for certiorari before judgment, the issuance of the court of appeals’ intervening decision does not deprive the Court of the authority to grant it,” the brief states. “If granted, the writ of certiorari would still be directed tothe court of appeals, and this Court could still exercise jurisdiction…”
If the Supreme Court grants review in the Windsor case, the Justice Department says justices should hold the petitions in the Massachusetts case “pending final resolution on the merits.” But if the court determines neither case is appropriate for review, the Justice Department says other cases — Golinski v. Office of Personnel Management or Pedersen v. Office of Personnel Management — should be considered for review. Federal district courts have ruled against DOMA in those lawsuits and they’re also pending before the Supreme Court, but an appeals court has yet to weigh in on either lawsuits.
Carisa Cunningham, a GLAD spokesperson, was dismissive of the Justice Department’s call to make the Windsor case a higher priority among the challenges against DOMA as opposed to the initial lawsuit her organization filed against the statute.
“DOJ has pretty consistently pointed the court away from Gill for reasons only they can tell you, so this is not surprising to us,” Cunningham said.
Coakley’s office declined to comment on the brief.
[H/T] Prop 8 Trial Tracker
State Department
HIV/AIDS activists protest at State Department, demand full PEPFAR funding restoration
Black coffins placed in front of Harry S. Truman Building
Dozens of HIV/AIDS activists on Thursday gathered in front of the State Department and demanded the Trump-Vance administration fully restore President’s Emergency Plan for AIDS Relief funding.
Housing Works CEO Charles King, Health GAP Executive Director Asia Russell, Human Rights Campaign Senior Public Policy Advocate Matthew Rose, and others placed 206 black Styrofoam coffins in front of the State Department before the protest began.
King said more than an estimated 100,000 people with HIV/AIDS will die this year if PEPFAR funding is not fully restored.
“If we continue to not provide the PEPFAR funding to people living in low-income countries who are living with HIV or at risk, we are going to see millions and millions of deaths as well as millions of new infections,” added King.
Then-President George W. Bush in 2003 signed legislation that created PEPFAR.
The Trump-Vance administration in January froze nearly all U.S. foreign aid spending for at least 90 days. Secretary of State Marco Rubio later issued a waiver that allows the President’s Emergency Plan for AIDS relief and other “life-saving humanitarian assistance” programs to continue to operate during the freeze.
The Washington Blade has previously reported PEPFAR-funded programs in Kenya and other African countries have been forced to suspend services and even shut down because of a lack of U.S. funding. Two South African organizations — OUT LGBT Well-being and Access Chapter 2 — that received PEPFAR funding through the U.S. Agency for International Development and the Centers for Disease Control and Prevention in recent weeks closed down HIV-prevention programs and other services to men who have sex with men.
Rubio last month said 83 percent of USAID contracts have been cancelled. He noted the State Department will administer those that remain in place “more effectively.”
“PEPFAR represents the best of us, the dignity of our country, of our people, of our shared humanity,” said Rose.
Russell described Rubio as “ignorant and incompetent” and said “he should be fired.”
“What secretary of state in 90 days could dismantle what the brilliance of AIDS activism created side-by-side with George W. Bush? What kind of fool could do that? I’ll tell you who, the boss who sits in the Harry S. Truman Building, Marco Rubio,” said Russell.
U.S. Military/Pentagon
Pentagon urged to reverse Naval Academy book ban
Hundreds of titles discussing race, gender, and sexuality pulled from library shelves
Lambda Legal and the Legal Defense Fund issued a letter on Tuesday urging U.S. Defense Secretary Pete Hegseth to reverse course on a policy that led to the removal of 381 books from the Nimitz Library of the U.S. Naval Academy in Annapolis, Md.
Pursuant to President Donald Trump’s executive order 14190, “Ending Radical Indoctrination in K-12 Schooling,” the institution screened 900 titles to identify works promoting “diversity, equity, and inclusion,” removing those that concerned or touched upon “topics pertaining to the experiences of people of color, especially Black people, and/or LGBTQ people,” according to a press release from the civil rights organizations.
These included “I Know Why the Caged Bird Sings” by Maya Angelou, “Stone Fruit” by Lee Lai, “The Hate U Give” by Angie Thomas, “Lies My Teacher Told Me: Everything Your American History Textbook Got Wrong” by James W. Loewen, “Gender Queer: A Memoir” by Maia Kobabe, and “Democracy in Black: How Race Still Enslaves the American Soul” by Eddie S. Glaude, Jr.
The groups further noted that “the collection retained other books with messages and themes that privilege certain races and religions over others, including ‘The Clansman: A Historical Romance of the Ku Klux Klan’ by Thomas Dixon, Jr., ‘Mein Kampf’ by Adolf Hitler, and ‘Heart of Darkness’ by Joseph Conrad.
In their letter, Lambda Legal and LDF argued the books must be returned to circulation to preserve the “constitutional rights” of cadets at the institution, warning of the “danger” that comes with “censoring materials based on viewpoints disfavored by the current administration.”
“Such censorship is especially dangerous in an educational setting, where critical inquiry, intellectual diversity, and exposure to a wide array of perspectives are necessary to educate future citizen-leaders,” Lambda Legal Chief Legal Officer Jennifer C. Pizer and LDF Director of Strategic Initiatives Jin Hee Lee said in the press release.
Federal Government
White House sues Maine for refusing to comply with trans athlete ban
Lawsuit follows months-long conflict over school sports in state
The Justice Department is suing the state of Maine for refusing to comply with President Donald Trump’s executive order banning transgender athletes from participating in school sports, U.S. Attorney General Pam Bondi announced on Wednesday.
DOJ’s lawsuit accuses the state of violating Title IX rules barring sex discrimination, arguing that girls and women are disadvantaged in sports and deprived of opportunities like scholarships when they must compete against natal males, an interpretation of the statute that reverses course from how the law was enforced under the Biden-Harris administration.
“We tried to get Maine to comply” before filing the complaint, Bondi said during a news conference. She added the department is asking the court to “have the titles return to the young women who rightfully won these sports” and may also retroactively pull federal funding to the state for refusing to comply with the ban in the past.
Earlier this year, the attorney general sent letters to Maine, California, and Minnesota warning the blue states that the department “does not tolerate state officials who ignore federal law.”
According to the Maine Principals’ Association, only two trans high school-aged girls are competing statewide this year. Conclusions from research on the athletic performance of trans athletes vis-a-vis their cisgender counterparts have been mixed.
Trump critics and LGBTQ advocates maintain that efforts to enforce the ban can facilitate invasive gender policing to settle questions about an individual athlete’s birth sex, which puts all girls and women at risk. Others believe determinations about eligibility should be made not by the federal government but by school districts, states, and athletics associations.
Bondi’s announcement marked the latest escalation of a months-long feud between Trump and Maine, which began in February when the state’s Democratic governor, Janet Mills, declined to say she would enforce the ban.
Also on Wednesday, U.S. Education Secretary Linda McMahon said the findings from her department’s Title IX investigation into Maine schools — which, likewise, concerned their inclusion of trans student-athletes in competitive sports — was referred to DOJ.
Earlier this month, the Justice Department pulled $1.5 million in grants for Maine’s Department of Corrections because a trans woman was placed in a women’s correctional facility in violation of a different anti-trans executive order, while the U.S. Department of Agriculture paused the disbursement of funds supporting education programs in the state over its failure to comply with Title IX rules.
A federal court last week ordered USDA to unfreeze the money in a ruling that prohibits the agency from “terminating, freezing, or otherwise interfering with the state’s access to federal funds based on alleged Title IX violations without following the process required by federal statute.”
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