We're Going to The Supreme Court! The Supreme Court Takes Review of DOMA and Prop 8!
Update: Today the Prop 8 case (Perry) is being argued before the Supreme Court and tomorrow the 吃瓜直播 will be there challenging the constitutionality of the Defense of Marriage Act on behalf of Edie Windsor.
This is it 鈥� the Supreme Court marriage moment that the 吃瓜直播 has been working towards for years. The Court announced today that it has granted review of the constitutionality of the Defense of Marriage Act in Edie Windsor鈥檚 case. The Court also took review of California鈥檚 Prop 8, so the full range of marriage issues will now be before the high court. These cases are poised not just to take down DOMA and Prop 8, but to be the next building blocks for LGBT equality more broadly.
The Windsor and Perry rulings, expected in June 2013, will be a watershed moment if our side wins either one.
Here鈥檚 why these cases are so important:
- Ending explicit federal discrimination. DOMA requires the federal government to discriminate against married same-sex couples by treating them as legal strangers for purposes of all federal statutes and programs. There are approximately 120,000 married same-sex couples in the U.S. today, and DOMA treats all of them as single in each of the 1,100+ places in the federal code where being married makes a difference 鈥� from eligibility for family medical leave, to social security survivor鈥檚 benefits, to access to health care for a spouse. It鈥檚 the last explicit federal declaration that gay people are inferior, which is reason enough to get rid of it.
- Heightened scrutiny in the balance. The Windsor ruling from the federal appeals court announced an important new protection for LGB people 鈥� 鈥渉eightened scrutiny鈥� by the courts. Under this standard, courts will presume that anti-gay discrimination by the government is unconstitutional and will require the government to have a good explanation for why it needs to treat us badly. Courts have usually applied a much less rigorous standard that often allows the government to discriminate against lesbians and gay men. While DOMA and Prop 8 should fail under any standard, if the Supreme Court adopts the heightened scrutiny standard, it would help eliminate anti-gay discrimination in many different contexts, from the workplace, to state parenting laws, to public schools across the country.
- Showing the country that discrimination in marriage is wrong. Both Windsor and Perry make profound contributions to the public鈥檚 understanding of the freedom to marry. Edie鈥檚 story resonates because her relationship with Thea exemplifies what many people think marriage is all about 鈥� making a commitment to another person and sticking with it through difficult times. When two people make the commitment that鈥檚 at the heart of marriage, it鈥檚 profoundly unfair for the government to treat them as though they鈥檙e not a family. The evidence presented at the Prop 8 trial helped the country see how baseless are the many anti-gay stereotypes that are at the core of our opponents鈥� arguments. And having prominent conservatives like Ted Olson champion this cause gets a big chunk of America to take another look. Once they do, many realize they don鈥檛 really have a problem with same-sex couples tying the knot.
The two cases both involve marriage for gay couples, but they actually present quite distinct issues. Edie Windsor is already married 鈥� she just wants to stop the federal government from treating her marriage different from everyone else鈥檚 marriages. The plaintiffs in the Prop 8 case, on the other hand, want to get married. Their case presents the marriage issue to the Court full-on 鈥� Does California鈥檚 ban on marriage for same-sex couples violate the federal constitution? Our side could get a big win 鈥� marriage in all 50 states 鈥� or we could get a smaller win 鈥� marriage in California. Either win would be spectacular progress for our movement. I鈥檓 betting that the smaller win is more likely, but public opinion on this issue is changing so quickly that it鈥檚 becoming hard to predict what the Court will do in the end. The 吃瓜直播 has filed supportive briefs in Perry all along, and we鈥檝e been working for decades 鈥� in courts, in legislatures, in ballot campaigns, and with the public 鈥� to help get the country, and the court, ready for this moment.
As the Court moves forward, let鈥檚 take a look back at Edie鈥檚 story.
Edie Windsor and Thea Spyer鈥檚 relationship is destined to be a classic among love affairs: The two New Yorkers became a couple in 1965 and had the courage to get engaged in 1967, when marriage for same-sex couples was just a fantasy. In 1977, Thea was diagnosed with progressive multiple sclerosis, which gradually paralyzed her and ultimately left her unable to walk. Edie and Thea dealt together with the challenges of M.S. for the next 30-plus years.
The couple waited for years to be able to marry, and finally did so in 2007. In 2009, after 44 years together, Thea died.
Naturally Thea left her possessions, including the apartment they had shared for decades, to Edie. But while New York considered Edie and Thea married, DOMA required the federal government to treat them as legal strangers. So Edie was socked with a $363,000 federal estate tax bill that would have been $0 if she had been a straight widow. If you haven鈥檛 seen the video about Edie, take a look, it鈥檚 quite moving.
Heartbroken at the injustice, Edie challenged the constitutionality of DOMA. Two lower federal courts have struck down DOMA in her case, and now the Supreme Court will have the final word.
We鈥檙e headed for another marriage moment in just six months. Edie鈥檚 case will be a central part of that moment, and hers has all the right stuff 鈥� a compelling story, a perfect plaintiff, a top-notch legal team, and support from people across the country and around the globe. Importantly, Edie鈥檚 bravery and the strength of her love could change the reality for tens of thousands of same-sex couples.
We could not do this work alone, many thanks to our wonderful co-counsel in Edie鈥檚 case at Paul, Weiss, Rifkind, Wharton & Garrison LLP and the Stanford Law School Supreme Court Litigation Clinic.
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Learn More 吃瓜直播 the Issues on This Page
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PodcastMay 2025
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Press ReleaseMay 2025
Free Speech
LGBTQ Rights
Military Families Seek Preliminary Injunction Against Censorship In Department Of Defense Schools. Explore Press Release.Military Families Seek Preliminary Injunction Against Censorship in Department of Defense Schools
ALEXANDRIA, Va. 鈥� On behalf of six military families with students enrolled in Department of Defense Education Activity (DoDEA) schools, the 吃瓜直播 today filed a motion for preliminary injunction seeking to declare DoDEA鈥檚 enforcement of executive orders resulting in classroom censorship unconstitutional. DoDEA, whose students lead the United States in math and reading proficiency scores, operates 161 schools across 11 countries, seven states, Guam, and Puerto Rico. The demand for an injunction was filed on behalf of 12 students and their families, ranging from pre-K to 11th grade, who attend DoDEA schools as children of active duty servicemembers stationed in Virginia, Kentucky, Italy, and Japan. Since January, the plaintiffs鈥� schools have removed books, altered curricula, and canceled events that the current administration has accused of promoting 鈥済ender ideology鈥� or 鈥渄ivisive equity ideology.鈥� Censored items include materials about slavery, Native American history, women鈥檚 history, LGBTQ identities and history, and preventing sexual harassment and abuse, as well as portions of the Advanced Placement (AP) Psychology curriculum. 鈥淲e make sacrifices as a military family so that my husband can defend the Constitution and the rights and freedoms of all Americans,鈥� said Jessica Henninger, a plaintiff on behalf of her children in DoDEA schools. 鈥淚f our own rights and the rights of our children are at risk, we have a responsibility to speak out. Despite the anxiety and uncertainty among DoDEA parents and students right now, we know that our children have a right to an education free from censorship, and we won't stand by silently and watch that right be taken away.鈥� The new motion includes a list of 233 books alleged to have been quarantined or removed from shelves, including: 鈥淭o Kill a Mockingbird鈥� by Harper Lee; 鈥�#MeToo: Women Speak Out Against Sexual Assault,鈥� edited by the New York Times; 鈥淟ooking for Alaska鈥� by John Green; 鈥淐an't Stop Won't Stop: A Hip-Hop History鈥� by Jeff Chang; 鈥淕eneration Brave: The Gen Z Kids Who Are Changing the World鈥� by Kate Alexander; and 鈥淛uli谩n is a Mermaid鈥� by Jessica Love. It includes further titles by acclaimed authors including Margaret Atwood, Toni Morrison, Kurt Vonnegut, and Ta-Nehisi Coates. The vast majority of titles appear to be by or about women, people of color, or LGBTQ people. 鈥淭hese are American students in American schools, and they have the same First Amendment rights as their peers,鈥� said Emerson Sykes, senior staff attorney with the 吃瓜直播鈥檚 Speech, Privacy, and Technology Project. 鈥淔amilies in DoDEA schools have the right to access books about race and gender and the right to learn about the vibrantly diverse world around them. We owe it to these students to help them learn and grow, not stifle their age-appropriate exposure to ideas this administration happens to deem politically incorrect.鈥� One DoDEA school canceled events honoring Juneteenth and Holocaust Remembrance Day, and another removed posters featuring Malala Yousafzai and Frida Kahlo. Families allege in the filings that their requests for information from DoDEA about what information has been removed or why have gone unanswered. 鈥淐lassroom censorship has impacted our clients鈥� ability to prepare for AP exams, to learn about their neighbors and peers, and to see themselves in their curriculum,鈥� said Corey Shapiro, legal director for the 吃瓜直播 of Kentucky. 鈥淎nd in DoDEA schools, which are some of the most diverse and high performing schools in the nation, the impact is magnified. This kind of political meddling is antithetical to the First Amendment.鈥� 鈥淭he Trump administration cannot violate the First Amendment by removing books and curricula it doesn鈥檛 like,鈥� said Matt Callahan, senior supervising attorney at the 吃瓜直播 of Virginia. 鈥淪tudents have a right to see themselves reflected in their libraries and classrooms, and they also have a right to learn from the perspectives of people who aren鈥檛 like them. That鈥檚 no less true for military families than for anyone else.鈥� The 吃瓜直播, the 吃瓜直播 of Kentucky, and the 吃瓜直播 of Virginia filed suit last month, arguing that DoDEA enforcement of three executive orders signed by President Donald Trump in January 2025 led to widespread violations of students鈥� First Amendment rights. The suit, and the motion for preliminary injunction, were filed in the U.S. District Court for the Eastern District of Virginia. The motion can be viewed online here. -
Press ReleaseMay 2025
LGBTQ Rights
Transgender Federal Worker Challenges Trump鈥檚 Federal Bathroom Ban. Explore Press Release.Transgender Federal Worker Challenges Trump鈥檚 Federal Bathroom Ban
WASHINGTON - A civilian employee of the Illinois National Guard has filed a class action complaint to the Army National Guard Bureau Equal Opportunity Office (NGB-EO) challenging a Trump administration policy prohibiting transgender federal employees from using restrooms and other accommodations aligned with their gender. LeAnne Withrow of Springfield, Illinois, is a lead military and family readiness specialist and civilian employee for the Illinois National Guard. Previously, she served as a staff sergeant for the National Guard and is the recipient of multiple commendations and awards, including the Illinois National Guard Abraham Lincoln Medal of Freedom. Following a January 20 executive order signed by President Trump, officials with the Office of Personnel Management, the Department of Defense, and the federal National Guard Bureau issued notices to all employees requiring use of designated restrooms strictly based upon their sex assigned at birth. Soon after, Withrow was instructed by supervisors within her chain of command that she may not use restrooms and other facilities designated for women. That order violated Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination in employment. In a 2020 ruling, the Supreme Court of the United States held 6-3 that Title VII prohibits discrimination against transgender workers on the basis of their sex. Today鈥檚 class action filing challenges the executive order and ensuing implementation actions with violating Title VII as well as the Fifth Amendment of the U.S. Constitution and the federal Administrative Procedures Act. The complaint was filed on behalf of Ms. Withrow by the 吃瓜直播, the 吃瓜直播 of DC, the Roger Baldwin Foundation of the 吃瓜直播, and Democracy Forward. 鈥淪ince coming out nearly a decade ago, the fact that I鈥檓 transgender has had no negative impact on my abilities as a worker and has caused no disruption or disturbance among my colleagues or supervisors,鈥� said LeAnne Withrow, a civilian federal employee for the Illinois National Guard. 鈥淭his policy would put a needless barrier between my work on behalf of military families, forcing me to choose between my service to this country and my own dignity. I love my work and want nothing to come between me and the people I serve. I鈥檓 hopeful the courts will see through this blatant effort to push people like me out of the federal workforce.鈥� 鈥淟et鈥檚 be clear鈥搃f you cannot use the bathroom at work, you cannot go to work,鈥� said Shana Knizhnik, Senior Staff Attorney for the 吃瓜直播鈥檚 LGBTQ & HIV Project. 鈥淭ransgender federal workers across the federal government are facing an intentional effort to drive them out of the workforce and out of public life by an administration with no shortage of hostility towards them and their identities. We look forward to making this case to the agency and will do everything we can to ensure all federal workers are treated equally and fairly regardless of who they love or who they are.鈥� 鈥淭his case is about people. Targeting transgender people is both unlawful and a dangerous example by our federal government. Democracy Forward is honored to work with LeAnne and our partners in this case to defend transgender people from hateful and harmful bigotry,鈥� said Democracy Forward Legal Director Audrey Wiggins. 鈥淭his policy is part of a national campaign to push transgender people out of public life,鈥� said Michael Perloff, Senior Staff Attorney at the 吃瓜直播-D.C. 鈥淚t鈥檚 discrimination pure and simple and it has no place in our law or our society.鈥� 鈥淚llinois has rejected the senseless, reckless discrimination against transgender people that is the hallmark of the Trump Administration,鈥� said Michelle Garcia, Deputy Legal Director at the 吃瓜直播 of Illinois. 鈥淎s a proud, vital member of the Illinois National Guard, who has served our state and this country honorably and proudly, neither LeAnne nor any other federal employee should be forced to use a restroom that is inconsistent with their gender identity.鈥� Today鈥檚 complaint filed to the National Guard Bureau Equal Opportunity Office can be found here. -
Press ReleaseApr 2025
LGBTQ Rights
Aclu Asks Court To Expand Temporary Relief To All Trans, Intersex, And Nonbinary People Seeking Passports. Explore Press Release.吃瓜直播 Asks Court to Expand Temporary Relief to All Trans, Intersex, and Nonbinary People Seeking Passports
BOSTON 鈥� The 吃瓜直播, the 吃瓜直播 of Massachusetts, and Covington & Burling LLC filed motions for class certification and preliminary classwide relief today in their lawsuit challenging the State Department鈥檚 refusal to issue passports with accurate sex designations for trans, intersex, and nonbinary American citizens. The new filing follows a federal court ruling finding that an executive order by President Trump and the passport policy implementing that order are likely unconstitutional and unlawful. The court鈥檚 preliminary injunction requires the State Department to issue updated passports to six transgender and nonbinary people who are named plaintiffs in the lawsuit. The new filings ask the court to certify a class of people adversely affected by the State Department policy and to extend this relief nationwide to the entire class so that other transgender, intersex, and nonbinary people can receive accurate passports. 鈥淭he court鈥檚 finding that this policy is likely unconstitutional and unlawful holds just as true for our class members as it does for our plaintiffs, and we are asking the court to expand its preliminary injunction to protect the rights of all transgender, intersex, and nonbinary people,鈥� said Li Nowlin-Sohl, Senior Staff Attorney at the 吃瓜直播 LGBTQ & HIV Project. 鈥淏y forcing people to carry documents that directly contradict their identities, the Trump administration is attacking the very foundations of the right to privacy and the freedom to be ourselves,鈥� said Jessie Rossman, Legal Director at 吃瓜直播 of Massachusetts. 鈥淚t is important that every person has the ability to live and travel safely, and we will continue to fight to rescind this unlawful policy to make sure that this relief extends to everyone.鈥� On his first day in office in January 2025, Trump signed an executive order attempting to mandate discrimination against transgender people across the federal government and government programs. This included a directive to the Departments of State and Homeland Security 鈥渢o require that government-issued identification documents, including passports, visas, and Global Entry cards鈥� reflect their sex 鈥渁t conception.鈥� Under the ensuing passport policy, the State Department began refusing to issue new, renewed, or changed passports with a sex designation other than what the State Department believed to be their sex assigned at birth regardless of the sex designation applied for. Over 214,000 public comments in opposition to the State Department鈥檚 new policy were collected by the 吃瓜直播 and Advocates for Transgender Equality. In February 2025, the 吃瓜直播, the 吃瓜直播 of Massachusetts, and Covington and Burling LLP filed the Orr v. Trump class action complaint on behalf of seven people who have not been able to obtain passports that match who they are because of the State Department鈥檚 new passport policy or who are likely to be impacted by the new policy upon their next renewal. The complaint was filed in the federal District Court for the District of Massachusetts. An amended complaint was filed on April 25, adding five named plaintiffs seeking to represent the class along with the seven plaintiffs named in the original complaint.