New York Law School

Art Leonard Observations

The Oklahoma Marriage Argument in the 10th Circuit

Today a panel of three judges from the 10th Circuit heard arguments in the Oklahoma marriage case. The trial judge had ruled (1) that he didn’t have jurisdiction to decide whether Oklahoma’s ban on recognizing same-sex marriages contracted in other states was constitutional, because the only defendant in the case, a county clerk, had no role in the recognition of out-of-state marriages, and (2) that the state’s constitutional amendment banning same-sex couples marrying in the state was unconstitutional. Both sides appealed. The clerk appealed the ruling against her on the marriage ban, and the plaintiffs appealed the jurisdictional ruling on the recognition ban.

As a result of this procedural posture, the attorney for the plaintiffs, Don Holladay, got dragged into questioning on the jurisdictional issue, and then on the question whether same-sex couples would be able to marry if the court struck down the constitutional amendment, in light of Holladay’s decision in framing his complaint not to attack the constitutional of Oklahoma’s statutory ban on same-sex marriage. Holladay never really got to argue on the merits of anything. His argument on the jurisdictional issue seemed to boil down to a law-of-the-case issue. When this case was previously before the 10th Circuit, a different panel said that the plaintiffs had sued the wrong defendants — the governor and attorney general, whose jobs did not involve administering the marriage laws — and that the correct defendant to sue was the county clerk who had denied marriage licenses to same-sex couples. Thus, this could be said to be the “law of the case,” and the current panel should stick to it and find that the district court had jurisdiction to decide the recognition issue. But, Holladay argued, that’s almost just academic, because if the court strikes down the ban on same-sex marriage, the ban on recognition should collapse as well. He used a front door-back door analogy, arguing that if same-sex couples can marry, it would not make sense for the state to be able to turn around and say those who married out of state would be deemed not to have valid marriages within the state. He also argued that when Oklahoma adopted the marriage amendment, it basically replaced the statutes with the amendment, so if the amendment falls, the statutes are gone, too. He said he had cited Oklahoma cases in his brief on that point.

The defense of the ban fell to James Campbell, an attorney for Alliance Defending Freedom, a “public interest” law firm dedicated to opposing same-sex marriage, which stepped in to represent the clerk on appeal. Campbell started off arguing that this is not a sex discrimination case so there should be no heightened scrutiny. He argued that Baker v. Nelson still binds the court, an argument that has been rejected by every district court judge who has decided a marriage equality case since last June’s Supreme Court decision in Windsor. Basically, it was a repeat of arguments made by Utah’s attorney in last week’s argument. A judge pointed out that the Supreme Court seems to have ignored Baker v. Nelson in its Windsor decision, but Campbell replied that Windsor presented a completely different issue, and respected the right of states to decide who could marry. He also distinguished Loving v. Virginia as being a race discrimination case, but Judge Lucero (the Democratic appointee on the panel) pointed out that the Supreme Court in Loving rejected the same kind of argument that Campbell was making on sex discrimination – the equal treatment argument. In Loving, the state of Virginia argued there was no discrimination because blacks and whites were equally prohibited from marrying each other; here, Oklahoma is equally prohibiting men and women from entering into same-sex marriages. The Court rejected the argument in Loving on the ground that the miscegenation ban was adopted to enforce white supremacy. I would say that the marriage ban is enacted to enforce heterosexual supremacy, which means this is a sexual orientation discrimination case. That leads us back to rational basis review, however, under 10th Circuit precedents.

As to that, the general attitude of the judges last week was that the state is in a strong position if it is a rational basis case. This is a bit odd, since many of the district judges in the unbroken string of marriage equality decisions have found that the state lacked a rational basis for maintaining a ban on same-sex marriages. Campbell pushed aggressively further, however. Generally, in a rational basis case the burden falls on the challengers to show that the state lacks a rational basis for the statute. In a heightened scrutiny case, the burden shifts to the state to justify its discriminatory statute by showing that it substantially advances an important state interest. Campbell claims that even in a heightened scrutiny case, the burden remains on the plaintiffs to prove that striking the challenged law would not produce harm in the long run, and he argued that there is no definite proof that changing the definition of marriage would not be harmful in the long run. I think he is off the rails there. One can embrace hypothetical justifications in a rational basis case, as that concept has been developed by the Supreme Court, but not in a heightened scrutiny case. The state cannot exclude an entire class of people from participating in a central social and legal institution based on an unproven hypothesis that there might be long-term ill effects from allowing them to participate. Especially when expert opinion on the main justification posited for the exclusion is firmly arrayed in favor of the view that there would be no harm.

At any rate, the oral argument did not cast much new light on the inclinations of the judges. The impression remains that Judge Lucero is likely to vote to uphold the trial court’s ruling, that Judge Kelly, who again didn’t say much, is likely to vote to reverse, and that the balance falls to Judge Holmes. It was also unclear from the questioning whether one or more of the judges thinks there are jurisdictional issues in the case that would require reversing, because many of the questions seemed odd until one recalled that there was a cross-appeal raising jurisdictional questions. As it is, the cross-appeal effectively deprived Holladay of the opportunity to argue against Campbell’s substantive points, and the court even extended Campbell’s rebuttal time, giving him substantially more time than Holladay to argue on the merits.

The court can take as long as it likes to reach a decision in the Utah and Oklahoma cases, but if it dawdles it is likely to be superseded by opinions from other circuits. The 4th Circuit hears oral argument in the Virginia cases on May 13, and arguments will probably occur in June on the 6th Circuit cases from Michigan, Ohio, Tennessee and Kentucky. In an interesting 6th Circuit development, Roberta Kaplan, who argued for Edith Windsor in U.S. v. Windsor, is again trying to intervene. She was rebuffed by the 10th Circuit when she tried to intervene on behalf of a new set of Utah plaintiffs, but now she is attempting to intervene in the 6th Circuit on behalf of Equality Ohio, the state’s gay rights organization, contending, contrary to the plaintiffs in the Michigan and Ohio cases, that the court should go directly to en banc review as urged by Michigan Attorney General Bill Schuette. Kaplan argues that a three-judge panel would be constrained on the level of judicial review by past 6th Circuit panel decisions, but an en banc panel would not be so bound and could consider the level of scrutiny issue de novo, which would expedite consideration of the case on the circuit court level. Since everybody understands that at least one marriage case is going to the Supreme Court, it would also be more likely to get there first from the circuit that has en banc consideration first. Since the 9th Circuit is hanging back for now, and the 10th might get tied up in jurisdictional knots, to judge by the oral arguments last week and this, the 6th Circuit might be on the one to go up — unless the 4th Circuit beats them to the punch. The 4th Circuit has already scheduled argument before a three-judge panel and nobody is asking to go directly to en banc there. It’s getting difficult to keep up with all these developments! Somebody will be first to the Supreme Court, but it’s too early to tell who.

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Art Leonard’s Cultural Diary – March 22 through April 16, 2014

I’ve had a busy few weeks, both in terms of attending things and in terms of work having to get done, as a result of which there is a big pile-up of programs for me to write about, so herewith a diary of brief comments about the events I’ve attended from March 22 through April 16. I have omitted comment about the Jeremy Denk piano recital at Peoples’ Symphony Concerts, which I wrote about separately right after the event.

On March 22, I attended a concert by Jeffrey Kahane (pianist and conductor) and the New York Philharmonic at Avery Fisher Hall. Mr. Kahane, music director of the Los Angeles Chamber Orchestra, has been a frequent guest at the Philharmonic in recent years, and I have always enjoyed his concerts. For this program, he selected George Gershwin’s Concerto in F, Maurice Ravels Concerto in G, and Kurt Weill’s Symphony No. 2. Both concerti had been recently performed by the Philharmonic with other pianists and conductors, but Kahane brought the distinction of conducting from the keyboard. Leonard Bernstein used to do this with the Ravel concerto (I have a DVD of his performance with a French orchestra that is fascinating to watch), to great effect, and Kahane was right up there with him. This is an orchestra that can pretty well conduct itself in familiar repertory, but the musicians seemed very sensitive to Kahane’s direction. His technical proficiency was more than adequate to the occasion, and his sheer enthusiasm for the music was well communicated to the NYP members, who seemed very involved and excited. The Weill symphony was a novelty, as it had not been played by the NYP since its local premiere under Bruno Walter’s direction in 1934. Was the exhumation worthwhile? I thought so. It’s not a perfect piece, but it is interesting to hear the seeds of Weill’s later development as a successful composer of Broadway musicals. Certainly, the piece is worth hearing more than once every 80 years! It’s neglect may be due to symphonic snobbery more than to its actual merits. The orchestra played beautifully, certainly outclassing the recordings I’ve heard.

The next day, I attended a matinee performance of Kurt Weill’s Threepenny Opera, in the English-language adaptation by Marc Blitzstein, presented by Atlantic Theater Company. Pure coincidence that I would hear Kurt Weill’s music twice in a weekend! This production was directed and choreographed by Martha Clarke. F. Murray Abraham led the cast as Mr. Peachum, Michael Park sparkled as MacHeath (Mack the Knife), Laura Osnes was Polly and Mary Beth Peil (a favorite from the TV series “The Good Wife” – Peter’s mother!) played Mrs. Peachum. I can’t say it was the most invigorating production I’ve seen of this — the Broadway revival with Sting stands out in my memory, and as a child I was brought to see the original production at the then-Theatre-de-Lys on Christopher Street of which I remember no details, only a general sense of fierce brilliance). The performance I saw was a preview. It has since opened to less than rapturous reviews. I still think it is worth seeing any revival of this work by a professional company, because the piece has so much wonderful music.

On March 27, I attended the American Symphony Orchestra’s revival of Max Bruch’s oratorio, Moses, at Carnegie Hall. Sidney Outlaw sang the role of Moses, with Kirk Dougherty as his brother Aaron, Tamara Wilson as the “Angel of the Lord,” with Leon Botstein conducting the orchestra and the Collegiate Chorale (prepared by James Bagwell). This piece was premiered in Germany in 1895 and in the U.S. in 1896 (Baltimore), but after a brief vogue disappeared from view until some recent revivals. It is very long and not particularly memorable, but as usual Botstein and his performing forces provided something worth hearing. Bruch’s music is richly romantic in harmony and orchestration, but his melodic gift is not particularly distinguished. The tunes don’t stay in your head — unlike the Violin Concerto No. 1, which is his main contribution to the standard orchestral repertory and which I think gets more play than it deserves in light of the many other violin concertos that are, in the end, more interesting. It would be interesting to hear what the richer string section of the NY Philharmonic could do with this piece, as the ASO strings tend to sound a bit undernourished in the big moments. I also thought the choir was actually larger than it needed to be for an orchestra of this size. (The ASO is a bit larger than a chamber orchestra in terms of its string body, but substantially smaller than a major symphony orchestra.) They did well with what they had. I’m glad I heard it. I won’t be going out of my way to hear it again.

It was back to the NY Philharmonic for me on Friday, March 28. I had purchased a single ticket for this concert, eagerly anticipating hearing Gustavo Dudamel conducting Bruckner’s 9th. Unfortunately, Mr. Dudamel took ill with flu and cancelled his NYP engagement, but they were lucky enough to land Manfred Honeck, musical director of the Pittsburgh Symphony, as a replacement for the weekend. Honeck had appeared as a guest with the Philharmonic at least once before (his appearance was not billed as a debut) but I couldn’t recall having seen him conduct before. I was very impressed. The Bruckner was superbly done, the orchestra at the peak of its virtuosity, and the third movement Adagio, which concludes this unfinished symphony, was actually devastating in its impact. The program began with Claude Vivier’s Orion, a 1979 symphonic poem that reportedly did much to put its composer on the map when it was first performed by Charles Dutoit and the Montreal Symphony in 1980. Unfortunately, Vivier, a gay man, was murdered by a “trick” in Paris in 1983, so his composing career did not get much beyond this piece. The piece itself defies description in words – a mélange of orchestral effects that is intense and colorful but that does not yield up much understanding on a first hearing.

The next evening, March 29, I was back at Carnegie Hall for the last concert of this season’s series by Orpheus Chamber Orchestra. The orchestra put together a “theme” concert of music inspired by Hungary – most particularly, the Hungarian folk music exponents in the first half — Kodaly and Bartok — and a 19th century Jewish violinist-composer writing in what purported to be the Hungarian style – Joseph Joachim. The Kodaly Hungarian Rondo is a charming trifle, the Bartok Divertimento and substantial dramatic statement that belies its name, and Orpheus rendered them well, although I really missed the effect of massed strings in the Bartok that I recall from a thrilling reading years ago by Kurt Masur with the NY Philharmonic. The Joachim Concerto is a bloated, romantic piece with lots of striking moments but not enough originality to make one regret its failure to become a standard repertory piece. Christian Tetzlaff labored hard to bring it off, and it was certainly an honorable effort. I’m glad they thought to revive it, since it is all too easy to offer up yet another run through the Brahms concerto, which is a great work that is perhaps played too frequently for its own good these days. Vive Joachim! Now let’s honorably retire the piece for a while.

On April 5 I attended City Center Encores! performance of Frank Loesser’s musical, “The Most Happy Fella.” I have a great sentimental affection for this piece, as it was the first musical for which I was hired to perform in a full pit orchestra when I was a high school student in Oneonta, New York, in the late 1960s. And that was quite an initiation into playing in a pit, considering that this piece has more music — at times is almost through-composed — than the typical musical show. The Encores! production was predictably brilliant, with Shuler Hensley shining as Tony, Laura Benanti eager and brilliant as “Rosabella,” and Cheyene Jackson studly (but at times seeming a bit unengaged) as Joe. I did have my occasional complaint with this series about the over-amplification of the orchestra. While it is true that placing the orchestra backstage behind the action would justify some amplification, I think they really overdo it, especially for the brass and percussion, to the point of verging on painfulness during the overture. That aside, the musical performance led by Rob Berman was excellently done, and the cast and crew did a great job on the choreography (by director Casey Nicholaw). In the early days of Encores!, one was accustomed to seeing semi-staged readings with performers carrying black loose-leaf books with the music and lyrics. They have now gotten to the point where cast-members seem to feel it a point-of-honor to have their parts memorized and jettison the books. (During the talk-back after the show, it was revealed that there was a difficult period when they had to carry the books due to Equity rules for this kind of production, but that a renegotiation with Equity made the books optional with the performers.) These now verge on fully-staged productions, and the results – in light of the short rehearsal periods – are extraordinary! Can’t recommend Encores! highly enough to those with nostalgia for the great days of Broadway. Last up for this season will be Irma La Douce before and during the second weekend in May. Be there or be square!

After attending Encores! I had a quick turnaround for a snack and then off to the Church of St. Mary the Virgin in Times Square for the last Early Music concert in Miller Theatre’s 25th Anniversary Season. Fittingly, the performers were The Tallis Scholars, the English group that has regularly figured on this series since its beginning. The group is celebrating its 40th anniversary this year, and put together a program surveying the realm of Renaissance Polyphony in which it specializes, as well as its more recent practice of commissioning living composers to write new polyphonic works for chamber choir. On this occasion, we had a world premiere, with commission by Miller Theatre, of Two Sonnets for Sor Juana Ines de la Cruz by Michael Nyman. I would like to hear these again! The first half of the program was devoted to continental polyphony (Desprez and de Rore), the second half to English polyphony (Sheppard and Tallis), and as usual, Peter Phillips and his singers were beyond reproach. Some have occasionally criticized Phillips and The Tallis Scholars for a sort of chilly precision to their work, but I don’t hear that, finding a warmth and spontaneity that makes their work very involving emotionally for the listener. This was an excellent performance of an excellent program.

The next day I heard a concert by the Los Angeles Guitar Quartet at Town Hall, courtesy of Peoples’ Symphony Concerts. This was in two parts. The first half was devoted to transcriptions of classical music for guitar quartet. We had a suite of dances from Michael Praetorius’s Terpsichore, the grant compendium of royal court dance music of the late Renaissance and early Baroque, a suite from Stravinsky’s ballet Pulcinella, which drew its thematic material from Baroque sources, and finally Liszt’s Hungarian Rhapsody No. 2. None of this music was imagined by its composers as a vehicle for a quartet for modern guitar virtuosi, and I found the sound becoming a bit tiresome. Early music groups usually put together colorful instrumentations for Praetorius, Stravinsky’s orchestration of his ballet makes full use of the coloristic resources of an early 20th century orchestra, and Liszt’s rhapsody exists in numerous colorful orchestral arrangements of the piano original. While the LAGQ is of course virtuosic in its approach to these pieces, I would have preferred the originals. The second half, by contrast, struck me as ideal in every way – a series of shorter works all conceived with the guitar in mind, some actually written for this ensemble, and presenting all the variety of sound that seemed lacking in the first half. I’m happy to have heard the group. I recommend that they focus on modern works written or arranged for them, and forget the Baroque arrangements.

“If/Then” is a new Broadway musical by Tom Kitt (music) and Brian Yorkey (book & lyrics) that I visited on April 9. I had heard complaints that the plot was confusing. Yes, it was. The idea is to depict the alternative realities that could stem from an inflection point in the life of a person, when a seemingly trivial decision to do one thing rather than another is, in retrospect, momentous. The piece seems to have been conceived as a vehicle for Idina Menzel (and the main reason we were there was that my theater-going companion was eager to take in her performance), and I thought she was fine in a very challenging role, although I thought she was painfully over-amplified at times, resulting in a rather shrill sound on her high notes. I did find the plotting confusing and difficult to follow at times. I understand that en route to Broadway a decision was made to have Menzel’s character called Liz in one reality and Beth in the other, to wear glasses in one and not the other, but I failed to pick up on this and was continually confused as the switch between realities took place without transitions, leaving me to think “huh?” all too often during the first act. Things became a bit more understandable in the second act, although again there were moments when things just seemed out of joint. But perhaps that’s the point of the show — how far apart our alternative futures might be, all stemming from a trivial decision early on to do one thing and not another.

On April 13 I attended the American Symphony Orchestra’s final Classics Declassified program for the season, at Symphony Space. The subject was Johannes Brahms’ Symphony No. 2, an early favorite of mine. I played double-bass in performances of this symphony by the Oneonta Symphony Orchestra when I was in high school and the Cornell University Orchestra when I was in college, so I know the piece from the inside out through extended rehearsals. That said, I found Leon Bostein’s lecture to be disorganized, boring, and seemingly pointless at times. Sometimes he comes up with brilliant insights, but sometimes the lecture is just a dud, and this seemed to be such an occasion. Surprisingly, the performance of the symphony was anything but — it was warmly done by an orchestra that seemed fully engaged. The rather smaller string section than one would get from a major orchestra was only occasionally a deficiency, as much of this symphony has a pastoral character that can work with a compact string body. The woodwind soloists, who get a real workout in this piece, were stellar, and the trombones, whose special tonal qualities in playing choral-like passages are an important feature of the piece, were also superb. I think Botstein needs an editor to work with him on the lectures. . .

Finally, last night, April 16, I saw a performance of Terrence McNally’s new play, “Mothers and Sons,” at the Golden Theatre. This is an ensemble piece for four actors. Tyne Daly plays Katharine Gerard, an upstate NY native who married a Texas businessman, lived in Dallas, raised a son who grew up to be gay and ran off to New York City for a career in the theater and died from AIDS in the early 1990s. In an earlier play, “Andre’s Mother,” dating from decades ago, McNally created this character and showed her alienation from the world of her son and her inability to be emotionally present for his memorial service. Frederick Weller plays Cal Porter, Andre’s surviving partner. This play takes place twenty years later, and Cal is now happily married to Will Ogden, an aspiring novelist, played by Bobby Steggert. They have a son, six-year-old Bud, played by Grayson Taylor, conceived through donor insemination and gestational surrogacy. In other words, a very “modern” NYC gay family, and perhaps the first time such a family has been portrayed on Broadway. For some reason, not really explained, Katharine “drops in” on the Porter-Ogden household on Central Park West. There doesn’t seem to be much of a plot, really, just a picture of colliding worlds as the still disapproving and disgruntled mother interacts with her late son’s lover and his “new” family. There are many affecting moments. Anyone who lived through the early years of AIDS in New York will have memories recalled, aided by a pre- or post-show visit to the lower lobby where panels from the AIDS Quilt are mounted. Presenting this history is important, but I found the show itself, while frequently absorbing, to be rather uneven, and I’m wondering whether McNally might treat this production as a first take on a work in progress and figure out revisions before it gets mounted again. The material is definitely worth exploring, and perhaps the experience of seeing it play out will inspire him to make changes that will strengthen it dramatically. Certainly this cast does a great job with it, although I found Weller’s performance a bit odd — what kind of accent was he trying to present? — and the role of the child is rather challenging for a young actor to present naturalistically, although Master Taylor acquitted himself honorably. I’m a Steggert fan and was happy to get a slice of his work here — I wished the part were a bit longer. And Tyne Daly, who was McNally’s “muse” for this piece, was perfectly cast, effectively projecting the brittle quality of a woman who is totally a fish out of water in this environment, unsure why she is there and how to act and react to what she is experiencing. Certainly this is a show that the LGBT community should be supporting. The audience was rather small, even for what is a relatively small Broadway “straight-theater” house, and I hope word of mouth may pick it up a bit. A play doesn’t have to be perfect to be worth seeing, and I find that anything Terrence McNally does is worth seeing, so I hope people will go.

My cultural calendar coming up: tomorrow night a premiere of new songs by Glen Roven at Spectrum, “All the Way” on Broadway, Music from Marlboro and Alarm Will Sound during the last weekend in April, Irma La Douce with Encores’ in May. . .

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India’s Highest Court Declares Equal Rights for Members of India’s Transgender Community

In a historic decision, a two-judge bench of the Supreme Court of India, ruling on a petition brought by the National Legal Services Authority on behalf of members of the transgender community, has declared that among the human rights protected by the Indian Constitution are the rights of individuals to State recognition of their gender identity and sexual orientation, and to be free of official discrimination on these grounds. The original petitioner was joined by several others, resulting in a consolidated decision issued on April 15, 2014. Although the petition was brought specifically to gain redress from the outcast status of transgender people in India, the court’s expansive language appeared to take in as well, at least to some extent, the social inequities endured by gay people.

The court mentioned in passing the recent ruling in the Naz Foundation case, rejecting a constitutional challenge to Section 377 of the Indian Penal Code, which criminalizes gay sex, but said it was expressing no opinion on that issue “since we are in these cases concerned with an altogether different issue pertaining to the constitutional and other legal rights of the transgender community and their gender identity and sexual orientation.” A different panel of the court recently signaled willingness to examine a “curative petition” that had been filed by the government in the Naz Foundation case, so it is possible that a new opinion may issue on the sodomy law question. If it is consistent with the ruling in this case, it would be a reversal of the retrogressive opinion from the other panel.

Each of the judges sitting on this case – Justice K. S. Radhakrishnan and Justice A.K. Sikri – wrote an extended opinion, although Justice Raqdhakrishnan’s far longer opinion set forth historical background and a thorough review of the treatment of transgender and gender identity issues in the statutes and court rulings of other English-speaking countries. After reviewing the various forms of discrimination and exclusion that transgender people suffer in India, Justice Radhakrishnan wrote, “Discrimination faced by this group in our society is rather unimaginable and their rights have to protected, irrespective of chromosomal sex, genitals, assigned birth sex, or implied gender role. Rights of transgenders, pure and simple, like Hijras, eunuchs, etc., have also to be examined, so also their right to remain as a third gender as well as their physical and psychological integrity.”

Interestingly, the court came to this conclusion — that some individuals are entitled to be recognized under the law as other than male or female, or “third sex” — just shortly after Australia’s highest court came to the same conclusion, allowing an individual who identified as neither male nor female to have an official gender identity of “not specified.” Evidently the recent Australian high court ruling came too late to be included in this opinion, but the court did cite to an earlier ruling in that case by the New South Wales Court of Appeal from 2013, whose ruling the Australian high court had affirmed to this effect.

The court took particular note of legislation in the U.K., Australia and other places by which those governments had adopted a formal mechanism for dealing with issues of gender identity, and especially changes of status sought by individuals who did not identify with the gender they were assigned at birth based on their genitals. The court quotes at length from the 2013 amendment enacted by Australia to address discrimination on the ground of sexual orientation, gender identity, or intersex status, and in passing regretted the lack of such legislation in India, leaving it to the courts to ensure that transgender individuals can enjoy full legal and social equality.

Perhaps the most fascinating part of Justice Radhakrishnan’s opinion is a brief review of the history of transgender people in India, where it seems they had a rather exalted status prior to the British colonial period, with its introduction of the sex-negative baggage of 19th century British imperial jurisprudence, leaving behind the unfortunate legacy of Section 377 that has lingered throughout the former British colonies.

After finding that international conventions and norms of gender equality provide the appropriate reference for dealing with the petitions in this case, the court argued that the absence of suitable Indian legislation left it open to the court to “respect the rules of international law,” but the court also found several Indian constitutional provisions to be sources of authority upon which to draw. “Article 14 of the Constitution of India states the State shall not deny to ‘any person’ equality before the law or the equal protection of the laws within the territory of India,” wrote Radhakrishnan. “Article 14 does not restrict the word ‘person’ and its application only to male or female,” the judge continued. “Hijras/Transgender persons who are neither male/female fall within the expression ‘person’ and, hence, [are] entitled to legal protection of laws in all spheres of State activity, including employment, healthcare, education as well as equal civil and citizenship rights, as enjoyed by any other citizen of this country.” Furthermore, “Non-recognition of the identity of Hijras/Transgender persons denies them equal protection of law, thereby leaving them extremely vulnerable to harassment, violence and sexual assault in public spaces, at home and in jail, also by the police.” The court concluded, “Discrimination on the ground of sexual orientation or gender identity, therefore, impairs equality before law and equal protection of law and violates Article 14 of the Constitution of India.”

The court also found a violation of Articles 15 and 16, which enumerate forbidden grounds for discrimination, including “sex.” Without noting the source, the court then described a mode of analysis — sex stereotyping as sex discrimination — similar to that adopted by the U.S. Supreme Court in 1989 in the Hopkins case, which has since been embraced by the U.S. Equal Employment Opportunity Commission in its ruling that discrimination because of gender identity is a form of sex stereotyping contrary to the requirements of modern sex discrimination law. Indeed, going further beyond where the EEOC has gone, the court wrote, “State is bound to take some affirmative action for their advancement so that the injustice done to them for centuries could be remedied. TGs are also entitled to enjoy economic, social, cultural and political rights without discrimination, because forms of discrimination on the ground of gender are violative of fundamental freedoms and human rights.”

“Gender identity, therefore, lies at the core of one’s personal identity, gender expression and presentation, and, therefore, it will have to be protected under Article 19(a)(a) of the Constitution of India,” wrote the judge. “A transgender’s personality could be expressed by the transgender’s behavior and presentation. State cannot prohibit, restrict or interfere with a transgender’s expression of such personality, which reflects that inherent personality. Often the State and its authorities either due to ignorance or otherwise fail to digest the innate character and identity of such persons. We, there, hold that values of privacy, self-identity, autonomy and personal integrity are fundamental rights guaranteed to members of the Transgender community under Article 19(1)(a) of the Constitution of India and State is bound to protect and recognize those rights.” The court also found protection for transgender rights in Article 21, an analogue of the U.S. Due Process Clause, which has been held to protect the dignity of the individual, just as the U.S. Supreme Court held last year in U.S. v. Windsor that the Due Process Clause of the U.S. 5th Amendment protects the dignity of married same-sex partners.

Finally, Justice Radhakrishnan focused on the “third gender” individuals who do not identify as male or female, asserting that the government must respect their gender identity as well and adapt policies and official forms to acknowledge the existence of third gender individuals. “Article 14 has used the expression ‘person’ and Article 15 has used the expression ‘citizen’ and ‘sex’; so also Article 16. Article 19 has also used the expression ‘citizen.’ Article 21 has used the expression ‘person’. All these expressions, which are ‘gender neutral’, evidently refer to human-beings. Hence, they take within their sweep Hijras/Transgenders and are not as such limited to male or female gender. Gender identity as already indicated forms the core of one’s personal self, based on self identification, not on surgical or medical procedure. Gender identity, in our view, is an integral part of sex and no citizen can be discriminated on the ground of gender identity, including those who identify as third gender.”

“We therefore conclude,” wrote Radhakrishnan, in a point on which Justice Sikri stated full agreement, “that discrimination on the basis of sexual orientation or gender identity includes any discrimination, exclusion, restrict or preference, which has the effect of nullifying or transposing equality by the law or the equal protection of laws guaranteed under our Constitution, and hence we are inclined to give various directions to safeguard the constitutional rights of the members of the TG community.”

Justice Sikri’s opinion focused on the development of international human rights principles and their application to the question before the court, observing that “there is thus a universal recognition that human rights are rights that ‘belong’ to every person, and do not depend on the specifics of the individual or the relationships between the right-holder and the right-grantor.” Just as they are “not granted by the people, nor can they be taken away by them.” And, “If democracy is based on the recognition of the individuality and dignity of man, as a fortiori we have to recognize the right of a human being to choose his sex/gender identity which is integral to his/her personality and is one of the most basic aspects of self-determination, dignity and freedom.”

After the two separate opinions, the justices joined in a declaration binding the State to recognize transgender and third gender individuals, to protect them from discrimination and take affirmative steps to improve their conditions and opportunities. Among other things, they directed the government to “provide them separate public toilets and other facilities.” There is a practical solution to the question frequently raised in gender identity discrimination debates – the restroom question. The Indian Supreme Court says we should abandon the shackles of binarism when it comes to public facilities. The court noted that the government had already established an Expert Committee “to make an in-depth study of the problems faced by the Transgender community and suggest measures that can be taken by the Government to ameliorate their problems and to submit its report with recommendations within three months of its constitution.” The Court stated that those recommendations should “be examined based on the legal declaration made in this Judgment and implemented within six months.”

The court singled out for particular commendation in its decision the “learned senior counsel” who presented the case for the Petitioner National Legal Services Authority, Shri Raju Ramachandran, and lead counsel for the other intervening parties, Shri Anand Grover, Shri T. Srinivasa Murthy, and Shri Sanjeev Bhatnagar. The court noted appearances of counsel for the government, who informed the court about steps the government was already taking to address the issue, which led to the court’s concluding deadline for implementation of such a process.

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Federal Judge Strikes Down Ohio Marriage-Recognition Ban as “Facially Unconstitutional”

U.S. District Judge Timothy S. Black, who ruled in December that Ohio’s ban on recognizing same-sex marriages from other states was unconstitutional in connection with recording marital status and surviving spouses on death certificates, today expanded his ruling in the context of a second lawsuit brought by married same-sex couples seeking recognition for purposes of birth certificates. However, Judge Black didn’t restrict his ruling to that issue, instead finding that Ohio’s recognition ban was unconstitutional in all its applications. Judge Black temporarily stayed his ruling to give the plaintiffs time to file a written response to the state’s request that it be stayed pending appeal to the 6th Circuit Court of Appeals, and promised to rule expeditiously on this question, while stating his “inclination” to require his ruling to go into effect for the four plaintiff couples. [Additionally noted: On April 16, Judge Black issued an order, granting the state's motion for a stay, except for the four plaintiff couples, as to whom he directed that the state issue birth certificates for their children showing both spouses as parents.]

The plaintiffs, four same-sex couples represented by Alphonse Gerhardstein, Jacklyn Gonzales Martin and Jennifer Lynn Branch of Gerhardstein & Branch Co. LPA, were all married in other states. The three lesbian couples are Ohio residents, and each couple is expecting a child to be born in the next few months, conceived through donor insemination. For purposes of birth certificates, they want these births to be treated the same way Ohio treats other births to married couples where the wife becomes pregnant through donor insemination. In such cases, Ohio issues a birth certificate identifying the mother’s spouse as the child’s other legal parent, but the state’s Health Department, under the direction of named defendant Lance Himes, refuses such equal treatment, claiming that the state’s Marriage Amendment and marriage-recognition statutes prevent it. The fourth couple, two gay men in New York who adopted an Ohio-born child, want Ohio to follow its statutory procedure for issuing new birth certificates for children adopted in other states, which requires recording the names of both parents on the birth certificate. In this case, the men jointly adopted the child in a New York proceeding, and ask that Ohio recognize that adoption and their parental status.

Judge Black pointed out that Ohio used to follow the procedure requested by the male couple, Joseph Vitale and Robert Talmas. However, when the current Republican administration took office in January 2011, Governor Bill Kashich and Attorney General Mike DeWine ordered that the Health Department cease recognizing out-of-state same-sex marriages for this limited purposes, even though the same-sex couple and their child reside out of state and all that Ohio was being asked to do was to issue a substitute birth certificate for the child.

Unsurprisingly, Judge Black found that nothing has happened since his December decision to change his legal analysis. Indeed, he noted on the second page of his decision “ten out of ten federal rulings since the Supreme Court’s holding in United States v. Windsor — all declaring unconstitutional and enjoining similar bans in states across the country.” Furthermore, he wrote, “The pressing and clear nature of the ongoing constitutional violations embodied by these kinds of state laws is evidence by the fact that the Attorney General of the United States and eight state attorneys general have refused to defend provisions similar to Ohio’s marriage recognition bans.”

This led Judge Black to a sweeping conclusion: “This court’s analysis in [its December ruling] controls here, and compels not only the conclusion that the marriage recognition ban is unenforceable in the birth certificate context, but that it is facially unconstitutional and unenforceable in any context whatsoever.” Judge Black’s opinion is written in emphatic terms, and to drive home his key points, he issued a slip opinion where those points are in bold, underlined type.

He rooted his ruling in prior decisions by the United States Supreme Court, and seemed at times to be responding as much to arguments being raised by marriage equality opponents in lawsuits from other states as to the argument raised by Ohio’s attorneys. For example, quoting from a 1990 U.S. Supreme Court ruling, Hodgson v. Minnesota, “the regulation of constitutionally protected decisions, such as where a person shall reside or whom he or she shall marry, must be predicted on legitimate state concerns other than disagreement with the choice the individual has made,” or, referring to several Supreme Court decisions, he wrote that “the fundamental right to marry is available even to those who have not traditionally been eligible to exercise that right.” He concluded that “the right to marriage is a fundamental right that is denied to same-sex couples in Ohio by the marriage recognition bans.” He found that denial of this right also affected another fundamental right, the right to parental authority. “U. S. Supreme Court rulings, reflected in state laws, make clear that these parental rights are fundamental and may be curtailed only under exceptional circumstances,” he wrote.

While cases involving state abridgement of fundamental rights are usually analyzed using the “strict scrutiny” test, under which the challenged statute is presumed unconstitutional and the state has the burden of showing that the statute is necessary to achieve a legitimate and compelling state interest, Judge Black decided to treat this as a heightened scrutiny case, using a balancing approach between the interests of the plaintiffs and the state. He described the many burdens that denial of recognition places on married same-sex couples — and particularly those raising children, as in this case — and found that the Supreme Court’s decision last June in U.S. v. Windsor addresses the issue directly. In that case, Justice Anthony M. Kennedy described same-sex marriages being denied recognition under federal law as “second-tier” marriages, and wrote, “The differentiation demeans the couple, whose moral and sexual choices the Constitution protects,” and that “it humiliates tens of thousands of children now being raised by same-sex couples,” a point that Judge Black emphasized with underscored bold print.

By contrast, he found that the interests that counsel for Ohio had identified just did not measure up. He particularly dismissed the idea that Ohio’s marriage ban enjoyed some sort of special legitimacy because it was enacted as a constitutional amendment by the voters. “In particular,” he wrote, “the Court notes that given that all practicing attorneys, as well as the vast majority of all citizens in this country, are fully aware that unconstitutional laws cannot stand, even when passed by popular vote, Defendants’ repeated appeal to the purportedly sacred nature of the will of Ohio voters is particularly specious.” He also responded to the state’s argument that the Supreme Court in Windsor had recognized that regulation of domestic relations in the U.S. has traditionally been an exclusive function of the states by pointing out that such state regulation is “subject to constitutional guarantees.”

Thus, he found, the state’s refusal to recognize same-sex marriages performed elsewhere “violates the substantive due process rights of the parties to those marriages because it deprives them of their rights to marry, to remain married, and to effectively parent their children, absent a sufficient articulated state interest for doing so.”

Judge Black also found an equal protection violation. He pointed out that 6th Circuit equal protection precedents involving gay litigants pre-dated the Windsor decision, which required deciding anew whether sexual orientation discrimination should invoke heightened scrutiny. Referring back to his earlier decision, he found that heightened scrutiny was the correct approach, noting in passing the 9th Circuit’s conclusion on this point in its jury selection ruling in January. “Here,” he wrote, “Defendants’ discriminatory conduct most directly affects the children of same-sex couples, subjecting these children to harms spared the children of opposite-sex married parents. Ohio refuses to give legal recognition to both parents of these children, based on the State’s disapproval of their same-sex relationships.” But this clearly runs afoul of another well-established Supreme Court precedent, Plyler v. Doe, for the proposition that “disparate treatment of children based on disapproval of their parents’ status or conduct violates the Equal Protection Clause.” And, he found, the state had no rational basis for imposing such a discriminatory policy, much less an important policy reason that would be sufficient to withstand heightened scrutiny.

In a lengthy textual footnote, Judge Black also noted that Ohio’s refusal to issue an appropriate new birth certificate to the New York couple who had adopted an Ohio child could be held to violate the Constitution’s Full Faith and Credit Clause. An adoption order is a judicial order that is entitled to full faith and credit, and Judge Black identified as an outlier the 5th Circuit ruling in a Louisiana case suggesting that a federal court could not order a state to issue such a birth certificate.

Ohio has already appealed Black’s earlier ruling, Obergefell v. Wymyslo, to the 6th Circuit, and Governor Kasich and Attorney General DeWine have already announced that they will appeal this ruling as well, so the immediately pressing question is whether Black will stay his ruling. In a footnote at the end of his opinion, he wrote that he is “inclined” to stay the ruling on facial unconstitutionality, which would be consistent with what other federal trial judges have been doing since the Supreme Court stayed the order in the Utah marriage case. However, noting the “imminent births of their children and other time-sensitive concerns,” he was also inclined not to stay the order as it applied to the four plaintiff couples in the case. He promised to rule promptly after receiving final briefing from the parties on the stay issue. [On April 16, he followed his inclinations, as noted above, staying the ruling pending appeal except as to the four plaintiff couples, for whom the Order goes into effect. One hopes that the Ohio government defendants will have the good sense not to appeal this order.]

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Jeremy Denk Piano Recital at Peoples’ Symphony Concerts

Tonight Jeremy Denk presented an intriguing piano recital as part of the Arens Series of Peoples’ Symphony Concerts, presented at Washington Irving High School’s nicely-refurbished auditorium. Denk presented an eclectic program of Mozart, Ligeti, Byrd and Schumann.

As a long-time attender of Peoples’ Symphony programs, I feel like I’ve watched Denk grow up at the keyboard, since he has appeared several times over the years. Now a mature artist, he hasn’t lost that childlike wonder and excitement that make his performances of even the most mainstream repertory seem fresh and newly-conceived. Indeed, although he is clearly playing all the notes with great facility and has thought through exactly what he wants to do, there is an air of improvisation about his work that helps to bring the music to startling life.

He began with Mozart’s Sonata in F Major, K. 533/494, a piece patched together from two unrelated manuscripts. I thought the first movement was just too fast at many points, but maybe that’s just me. No matter how fast, everything was cleanly rendered, but I think things just don’t “sound” if they are played too fast. I had no such complaint about the remaining movements. This performance struck me as a bit old-fashioned, in the sense that it was a large-scale dramatic rendition using the full dynamic range and coloristic capabilities of the piano, far beyond what would have been available to Mozart. The “historically informed practice” people would undoubtedly not approve, but I find that I enjoy performances of old music that break from such strictures… and perhaps ask what Mozart would have done with the capacities of a 21st century concert grand?

Denk is a master of the Ligeti Etudes. Tonight he gave us a selection of six from Book Two, having decided after the program was printed to drop one of the seven that were listed. He plays them with great energy and enthusiasm for ultimate dynamic contrast and rhythmic excitement, although the final one he selected ended calmly, perhaps to create a symmetry with the second half of the program.

After intermission, we had a brief piece by William Byrd from “My Ladye Nevelles Booke” and, as with the Mozart, Denk made no concessions to the age of the music, giving a very pianistic rendition that was quite beautiful in its graceful lyricism.

Finally — and definitely the highlight of the evening for me — Robert Schumann’s Davidsbundlertanze, Op. 6, a collection of 18 highly contrasted character pieces, with some recurring motifs, that were constantly fascinating in Denk’s very personalized approach. As noted above, a particular feature of his playing is creating an air of spontaneity, even improvisation, but in performances that are technically impeccable and so clearly carefully thought out. I hope he will record this piece before long, understanding that any recording would be a mere snapshot of his constantly evolving conception, but it is at present a conception worth preserving.

Denk’s recently-released recording of Bach’s Goldberg Variations is a spectacular success, and he favored us with one of the variations as an encore.

This was undoubtedly one of the most satisfying programs of this year’s Peoples’ Symphony series. It was worth the price of the entire subscription and more.

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Court of Appeals Argument on Utah’s Appeal of Marriage Ruling Points to Variety of Potential Outcomes

A panel of three judges of the U.S. Court of Appeals for the 10th Circuit in Denver heard oral arguments on Thursday, April 10, in Utah’s appeal of a December ruling by U.S. District Judge Robert Shelby that the state’s constitutional and statutory ban on same-sex marriages is unconstitutional. Because both Judge Shelby and a 10th Circuit panel had refused to stay that ruling pending appeal, more than 1,000 same-sex couples married in Utah before the Supreme Court granted a stay on January 6. As usual at such hearings, the court did not indicate directly how it would rule, and an opinion is likely months away, not least because this panel will reconvene on April 17 to hear Oklahoma’s appeal of a similar district court ruling and might decide to combine the two cases in one opinion.

However, the questions and answesr and dialogue between the judges and the lawyers provided insights into the thinking of the judges about how the case might be decided. Perhaps most surprising to those in the courtroom or listening to the recording that the court quickly posted to its website, the court might not even decide the case on the merits, as judges raised questions about “standing” more than once, and one judge suggested that perhaps the case should not have been decided by Judge Shelby on a summary judgment motion because of disputed facts that might be relevant to a final decision.

The issue of standing occupied center stage last June when the Supreme Court ruled in Hollingsworth v. Perry that the federal appeals courts lacked jurisdiction to rule on California’s Proposition 8 same-sex marriage ban because the supporters of that ban, who had appealed the district court’s decision striking it down, lacked “standing” to do so. “Standing” is a principle of federal constitutional law that requires the party who files a lawsuit or who seeks to appeal a trial court decision to have a personal stake in the outcome of the case, not merely a theoretical or generalized interest in how the case would be decided. For example, in right-to-marry cases, the plaintiffs are couples whose right to marry is being denied by the state, so they clearly have standing to file suit against a public official, such as a county clerk, who refuses to issue them a marriage license. Courts are divided, however, over whether they can file suit against a state governor or attorney general, as neither of those officials plays a direct role in issuing marriage licenses or administering the state’s marriage laws. This turns into a “standing” issue on appeal of a trial decision in favor of plaintiffs, when the standing issue shifts to the defendants who are appealing. A county clerk clearly has standing to appeal, since issuing marriage licenses is a function of their job, and county clerks are the only appellants in the Virginia marriage equality case now pending in the 4th Circuit in Richmond. But in the Utah case, the appellants are the governor and attorney general. Although the Salt Lake County clerk, who denied licenses to the plaintiffs, was a defendant in the trial court, she did not join in the appeal, and the attorney who appeared for the state, Gene Schaerr, presented himself as representing Governor Gary Herbert and Attorney General Sean Reyes.

This led the court to pose the “standing” question to both sides. If neither Governor Herbert nor Attorney General Reyes has personal responsibility for the enforcement of the marriage laws, is the case properly before the court of appeals? The question here is different from that posed in Hollingsworth, because in that case the appellants were private parties, not government officials, who clearly had no personal stake in the outcome in the sense that their personal lives would not be affected by the result. Even then, the Supreme Court split 5-4 over the standing question, the dissenters arguing that the California Supreme Court’s advisory opinion stating that initiative proponents could represent the state in defending their initiative provided a sufficient basis for standing. In this Utah case, the question is “closer” since the governor and attorney general have taken oaths binding them to defend the state’s constitution and faithfully enforce its laws, and they would have a similar responsibility were Judge Shelby’s decision upheld. Neither party in this case had raised standing as an issue, and Peggy Tomsic, the plaintiff’s lawyer, agreed with Schaerr in arguing to the court that there was no problem with standing. Among other things, she appointed out that ultimately the governor and attorney general did have supervisory authority over the county clerks and could direct them regarding their role in issuing or denying licenses. Similarly, the governor and attorney general would likely play a role in supervising or directing agencies confronted with the question whether to recognize same-sex marriages from other jurisdictions, which is also an issue in this case. Indeed, it seems unlikely that the court would shy away from a ruling on the merits based solely on “standing.” Surely, the chief executive and chief law enforcement officer of a state have a direct interest in appealing a trial court’s ruling that state constitutional and statutory provisions violate the federal constitution.

The state itself is not a defendant in this case, because the federal constitution has been interpreted by the Supreme Court as barring citizens from suing their own state government in federal court. Thus we have the “legal fiction” of suing state officials in their “official capacity” in order to challenge the constitutionality of a state law. Due to standing concerns, the federal courts insist that particular officials can only be sued if there is a close connection between the law at issue and their official duties. Some federal courts have dismissed marriage lawsuits that were brought against governors and attorney generals when the plaintiffs did not also sue the state official with direct authority to administer the marriage laws or a county clerk who had actually denied the plaintiffs a marriage license, out of this concern for “standing.” For example, in Pennsylvania, Governor Tom Corbett was removed as a defendant in the pending marriage equality cases for this reason, and in Louisiana a federal court dismissed a marriage equality case where the only individual sued was the attorney general. The Supreme Court raised a “standing” concern in the DOMA case (U.S. v. Windsor) as well, asking whether the United States, as represented by the Solicitor General, had “standing” to appeal a lower court decision with which the government agreed, for lack of any actual “case or controversy.” Ultimately the Supreme Court found that the government has a real interest in having a binding ruling by the Supreme Court when a lower court declares a federal statute unconstitutional. The same logic should hold in this case. Even if Herbert and Reyes were not necessary defendants at the trial court level, they would surely have a direct interest in their official capacities to appeal a ruling striking down state laws.

The other suggestion floated by the court that could defer a ruling on the merits was that Judge Shelby should not have ruled on the motion for summary judgment because a trial was necessary in order to determine facts that were in dispute. Judges are supposed to grant summary judgment motions only when material facts are undisputed and there is no need for an evidentiary hearing to resolve factual disputes. At least one 10th Circuit judge questioned whether the plaintiffs and defendants actually agreed about all the facts necessary to decide this case. Interestingly, the recent marriage equality ruling from Michigan followed the first trial on the subject since last June. Michigan District Judge Bernard Friedman had denied summary judgment motions last fall, having concluded that there were facts in dispute about the state’s justifications for banning same-sex marriage that would have to be resolved if the case was being decided using the “rational basis” test, and the judge eventually ruled on the merits only after the trial had been concluded. The hearing was focused on expert testimony from both sides about the potential impact of allowing same-sex marriages on child-rearing results, and the judge concluded in his opinion that the state’s witnesses on the issue were “unbelievable.” If the 10th Circuit panel finds that there remain disputed issues of material fact, it could send the case back to Judge Shelby with directions to hold a trial on the disputed points.

However, it seems unlikely that the court will conclude that this is necessary, when all but one of the marriage equality rulings that have been issued since the Windsor decision last June have come from summary judgment motions, with only the Michigan case following a trial. Numerous federal judges have taken the position that this issue can be decided as a question of law based on undisputed facts or, perhaps more accurately, based on a finding that even if the state is correct about its factual assertions, they don’t justify denying the right to marry to same-sex couples. While Judge Friedman’s finding that expert testimony presented by Michigan was “unbelievable” is not binding on the 10th Circuit, it seems to have carried significant weight with Utah’s attorney, Gene Schaerr, who sent a letter to the court earlier in the week noting that his brief had cited the so-called Regnerus study but that he was not relying on it to prove that parenting by same-sex couples is inferior to parenting by different-sex couples.

As to the merits of the case, to the best one might conclude from hearing the argument, it seemed unlikely that there would be a unanimous decision one way or the other. Judge Carlos Lucero, a veteran of the court who was appointed by President Bill Clinton, clearly indicated by his questioning and comments that he most likely supported the plaintiffs’ position, while Judge Paul J. Kelly, Jr., who was appointed by President George W. Bush, seemed more disposed towards the state’s position, although he posed many fewer questions making it harder to discern his views. The tie-breaker may end up being another Bush appointee, Judge Jerome A. Holmes, who questioned both sides quite sharply, making it difficult to predict where he will come to rest.

Clearly, all the judges seemed to agree that the threshold question of the level of judicial scrutiny would likely determine the outcome of the case. In 2008, the 10th Circuit ruled in Price-Cornelison v. Brooks, 524 F.3d 1103 (2008), that a local law enforcement official had no rational basis for refusing to enforce an order of protection obtained by a lesbian and, in passing, observed that heightened scrutiny would not apply because the case did not involved a “protected class” under the Equal Protection Clause. Based on that, this 10th Circuit panel is bound to apply the rational basis test, the lowest level of judicial scrutiny, to sexual orientation discrimination cases, unless subsequent legal developments mandate a higher standard or this case is viewed as involving something other than just a sexual orientation discrimination claim. Thus, the question whether the Supreme Court’s decision last year in U.S. v. Windsor established a higher standard of review that would apply to this case was a central issue in the argument and may determine the outcome, since the judges might agree, as at least one suggested during the argument, that the Utah ban would survive the traditional rational basis test, which is very deferential to the state.

It was frustrating to listen to the questions and answers on this point, because they failed to come to grips with what Justice Anthony Kennedy wrote and did in his opinion for the Supreme Court in the Windsor case. Kennedy did not state that Windsor involved a fundamental right to marry or a suspect classification based on sexual orientation. Rather, he treated it as a case in which Congress discriminated against same-sex couples by excluding them from the recognition of their state-law marriages with the result that they were deprived of numerous federal rights and benefits. It was not just a sexual orientation discrimination case. Rather, it was a case of intentional unequal treatment of a defined portion of the population, having direct and wide-ranging adverse effects, and the Court concluded that none of the arguments mounted in favor of Congress’s policy decision were sufficient to justify the magnitude of the deprivation. As in his prior gay rights opinions, Romer v. Evans and Lawrence v. Texas, Kennedy avoided invoking the categories and classifications that the Court had used in prior cases involving race or sex discrimination, instead applying a mode of judicial review particularly tailored to the issues before the Court.

Lower federal courts have difficulty applying such precedents, because, being bound by Supreme Court opinions, they are looking for clear direction about the application of existing doctrinal categories, and they are not getting such clear direction because Kennedy did not speak in terms of these categories. However, this observer suggests that Windsor bears directly on the question before the 10th Circuit in this case, because the Court, in effect, applied something like heightened scrutiny in case where Congress was discriminating against same-sex couples regarding an important social status and set of rights and benefits. Kennedy referred disparagingly to “second tier marriages” that enjoyed state but not federal recognition, and wrote about the specific stigma and burdens imposed upon children whose parents’ marriages were not recognized. He emphasized the failure of the federal government to recognize the “dignity” that legal state marriages conferred on same-sex couples. In this sense, Windsor is very much like Romer, the Colorado Amendment 2 case from 1996. A state constitutional amendment or statute that discriminates on its face against a distinct group of people must have a legitimate policy justification, and that justification must have some logical connection to the discrimination at issue.

Thus, if a state’s concern is that the “best” setting for raising a child is a family headed by a husband and a wife, it would have to show not just that this is a legitimate policy concern, but also that banning same-sex couples from marrying is a way of effectuating that policy. Schaerr was reduced to arguing that letting same-sex couples marry would send subtle messages to boys that would somehow undermine their masculinity, leading them to become bachelor outlaws. (This is a paraphrase, but not off the mark.) The state offers no factual support for this argument, merely hypothesis, and admits that the phenomenon of same-sex marriage is too new for there to be any proof that it will have this effect, as the right to marry in the United States dates back only to May 2004 when the Massachusetts Goodrich decision went into effect, and same-sex marriages in Canada and the Netherlands only began a year or two earlier. If the right to marry is a recognized constitutional right, Tomsic argued, it could not be trumped by such unproven speculation. The state should have to show that allowing same-sex couples to marry would have some sort of deleterious social effect. This certainly hasn’t manifested itself in the near-decade since same-sex couples began marrying in Massachusetts, and so far every federal judge confronting this argument since the Windsor decision has rejected it. Tomsic pointed out that the same sort of justifications were voiced by members of Congress in 1996 when they voted for DOMA, and the Supreme Court found them insufficient to justify withholding federal recognition from same-sex marriages.

Justice Antonin Scalia, in his dissenting opinion in the DOMA case, saw Kennedy’s approach in Windsor as leading ineluctably to a constitutional right for same-sex couples to marry. Chief Justice John Roberts disagreed, insisting that the case was a “federalism” case that respected the right of states to decide who could marry. But Kennedy was clear in writing that the state’s right to determine who could marry was subject to constitutional requirements of equal protection and due process, and that, in line with the reasoning in Windsor, the state would need good justifications to exclude same-sex couples from this right. Furthermore, Kennedy made clear that he was basing his opinion entirely on the 5th Amendment’s Due Process Clause and its equal protection component, and not on the concept of federalism as such, although federalism concerns clearly entered into the equation.

So far, every federal trial judge who has ruled in a marriage equality case has agreed (with Scalia) that the reasoning of Kennedy’s opinion for the Court requires striking down state bans on same-sex marriage. If the 10th Circuit ends up being divided on this question, it will be the first time since last June that any federal judge has not reached that conclusion after more than half a dozen trial court rulings.

The one certain thing about the 10th Circuit’s opinion, however, is that it will not mark the end of the case. If there is no standing for an appeal, Judge Shelby’s decision would stand as unappealed, unless Governor Herbert could persuade the full 10th Circuit to take up and reverse the panel’s decision, or even take the issue directly to the Supreme Court. The Supreme Court’s stay of Judge Shelby’s order was issued pending a ruling by the 10th Circuit, so by its terms it would expire upon the 10th Circuit issuing a decision, and the state would have to go back to get it renewed. If the case is sent back to Judge Shelby for trial, this litigation may become moot when the Supreme Court eventually rules on a case from another circuit. If the 10th Circuit rules on the merits, the losing party will certainly either seek review from an expanded panel of judges (en banc review) or petition the Supreme Court for review. So the 10th Circuit judges know that their ruling, while momentous in the short term, will likely be about as significant in the long run as the 2nd Circuit’s ruling in U.S. v. Windsor — a footnote to history.

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NY Judge Rules That State Ban on Gestational Surrogacy is No Impediment for Second Parent Adoption

Ruling on a previously-undecided question under New York law, Queens County Family Court Judge Barbara Salinitro has decided that New York’s ban on surrogacy contracts does not present an impediment to her consideration of an adoption petition from the same-sex spouse of a man whose twins were conceived and born through a gestational surrogacy contract with a woman in India. The April 3 ruling in Matter of J.J., 2014 N.Y. Slip Op 24089, notes the failure of New York’s statutory law to keep up with social change.

The fathers in this case are J.H.-W. and M.H.-W, New York residents who are legally married to each other. M.H.-W. entered into a gestational surrogacy contract with Y.M.A.K. in India. M.H.-W. provided sperm, which were used to fertilize an anonymous donor’s egg in vitro, and M.H.-W. gestated the twins, to whom she is not biologically related. On May 12, 2013, upon birth of the twins, Y.M.A.K. immediately turned over the twins to M.H.-W., who came to India together with his husband, J.H.-W., for their birth. “On May 28, 2013, the Proposed Adoptive Children were granted United States Citizenship and were permitted to return to the United States with the Birth Parent and Proposed Adoptive Parent,” wrote Judge Salinitro. “The Proposed Adoptive Children have been living with the Birth Parent and the Proposed Adoptive Parent since placement. The home study provided to the Court reports that the Proposed Adoptive Children are thriving in their care. The Proposed Adoptive Parent seeks the Court’s approval for finalization of his adoption petition.”

New York law has developed in significant ways apart from the controversial statutory ban on surrogacy contracts, which the legislature adopted in the 1980s in response to the notorious Baby M Case. In that case, the New Jersey Supreme Court held unenforceable as a matter of a public policy a contract between a heterosexual married couple and a married woman under which she promised to bear them a child conceived with the husband’s sperm and to surrender the child for adoption upon its birth. The surrogate changed her mind and fled the jurisdiction with the baby, leading to a nationwide media sensation. While the court held that contract unenforceable on public policy grounds, despite the lack of any statutory ban at the time in New Jersey, it concluded that the father should have primary custody of the child and that the surrogate’s status as a parent should also be recognized. Looking at this situation next door, the New York legislature passed a statute making such contracts unenforceable and illegal.

Now Judge Salinitro faced the question whether twins conceived and borne through an unenforceable, illegal contract, could nonetheless be adopted by their biological father’s same-sex spouse. Although New York’s statutory ban has never been altered since it was first adopted, the law has changed in other ways, as the state’s highest court ruled in favor of second-parent adoptions in 1995 and the legislature enacted the Marriage Equality Act in 2011. So, although there is a public policy in New York against surrogacy contracts, there is also a public policy in favor of second-parent adoptions, and, in reality, J.H.-W. is the husband of these children’s father and thus, in effect, their step-father with whom they have been living since their birth. The adoption of children by a step-father with the approval of the biological father is a routine occurrence in family courts.

Judge Salinitro, after pointing out that individuals who make surrogacy contracts “become parties to what New York considers an ‘illegal contract,’” she observed, “Bearing that in mind, it is troublesome that when using a surrogate, a birth parent who provides his or her genetic material is a legal parent to the child, yet their partner may not be able to achieve legal parentage through adoption, even though both planned on raising that child together in a family setting. Worse yet, in cases where neither partner has furnished their genetic material for a baby carried by a surrogate, neither parent could be deemed the legal parent of a child through adoption. Although such scenarios are consistent with statutes dictating that no person may give or accept any type of compensation in exchange for placement of a child for the purpose of adoption, such results are inconsistent with the Legislature’s intent that ‘each adoption should be judged upon the best interests of the child based upon a totality of the circumstances.’”

Ultimately, Judge Salinitro found that the “best interest of the child,” the central doctrine of family law in the United States, should overcome any doubts created by the surrogacy statute. After reviewing a variety of cases on related issues and recent attempts to get surrogacy reform through the New York legislature, the judge concluded that the surrogacy statute should not bar this adoption. “In light of the foregoing,” she wrote, “the Court finds where a surrogacy contract exists and an adoption has been filed to establish legal parentage, such surrogacy contract does not foreclose an adoption from proceeding.” She pointed out that there was no conflict concerning the fathers’ “care and custody” of the twins in this case, who will reside with the two men as their fathers in any event. Furthermore, the court was not being asked to enforce the surrogacy contract, since the surrogate had willingly complied with it, and the adoption petition did not depend upon the legality of the surrogacy contract in any way.

“Rather,” she wrote, “the Proposed Adoptive Parent, although not a biological parent, wants desperately to have equivalent legal status as the Birth Parent, which is what the couple had always envisioned as they proceeded on their bumpy road towards starting a family together, and is prepared to assume the rights and responsibilities that accompany legal parentage. In keeping with the Legislature’s intent to encourage loving, happy families for children with parents who wish to accept that role, the best interests of the Proposed Adoptive Children under the totality of the circumstances. . . the Court finds that the surrogacy contract’s legality is of no consequence to the matter.”

This is not the end of the proceeding, but Judge Salinitro felt that she had to determine whether the contract was a bar to adoption in these circumstances before proceeding with the remaining formalities. She also cautiously noted that her decision “should in no way be read to condone any violation of any New York State law,” but the clear tone of her opinion sounds a call to the legislature to get moving on revising the surrogacy statute to accommodate the needs of couples who are unable to have children biologically related to at least one of them without the assistance of a surrogate.

The adoption petition was filed on behalf of J.H.-W. by Clifford Greenberg.

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Marriage Equality Case Developments Come Hot and Heavy

As anticipation builds for the first federal appellate arguments on marriage equality since the Supreme Court’s decision last June striking down the Defense of Marriage Act’s anti-gay federal marriage definition, new developments in marriage equality litigation continue to pile up in various parts of the country.

On Thursday, April 10, a panel of three judges of the Denver-based U.S. Court of Appeals for the 10th Circuit will hear the state of Utah’s appeal of last December’s federal district court order, Kitchen v. Herbert, 961 F.Supp.2d 1181 (D. Utah 2013), requiring that the state allow same-sex couples to marry and recognize same-sex marriages contracted out of state. That order was stayed by the Supreme Court on January 6 after a panel of the 10th Circuit had refused to stay it, and only after more than a thousand same-sex couples had married. A week later, on April 17, the same three-judge panel will hear the state of Oklahoma’s appeal from a narrower order by the federal court there, Bishop v. United States, 962 F.Supp.2d 1252 (N.D. Okla. 2014), requiring the state to allow same-sex couples to marry but avoiding the issue of recognition of out-of-state marriages. Then, on May 13, the 4th Circuit Court of Appeals, based in Richmond, Virginia, will hear oral arguments in an appeal by two county court clerks of another federal district court ruling, Bostic v. Rainey, 2014 U.S. Dist. LEXIS 19110 (E.D. Va., Feb. 13, 2014), requiring the state to allow same-sex couples to marry and to recognize out-of-state same-sex marriages. Arguments have yet to be scheduled for similar appeals in the 5th, 6th and 9th Circuits, but there have been developments in some of those cases as well.

First, turning to Virginia, where marriage equality lawsuits were filed in both the Eastern and Western federal district courts. . . The Western District case, Harris v. Rainey, the second to be filed, was brought as a classic test-case by the ACLU and Lambda Legal, which put out a call after the Windsor decision to identify suitable plaintiffs to challenge the Virginia ban. While these public interest law firms were carefully assembling their case, a same-sex couple living in the Eastern District found an attorney and went ahead with their own lawsuit.

News reports brought that case to the attention of the American Foundation for Equal Rights (AFER), which had been formed in 2009 to challenge the constitutionality of California Proposition 8, having recruited star appellate attorneys Ted Olson (former U.S. Solicitor General) and David Boies to litigate that case to the Supreme Court. Olson and Boies won Perry V. Schwarzenegger in the district court, but fell short of achieving a Supreme Court nation-wide victory because the state decided not to appeal and the Supreme Court held, in Hollingsworth v. Perry, 131 S. Ct. 2652 (2013), that the proponents of Proposition 8, who had tried to appeal, lacked the qualifications to represent the state’s interest in the case. The district court decision stood, and same-sex marriages resumed in California.

Then AFER was looking about for a new opportunity to get this issue to the Supreme Court and suddenly Virginia presented itself as a lively possibility. AFER contacted Bostic’s attorney and offered its services, which were readily accepted. The Olson-Boies team pushed the case forward faster than the ACLU/Lambda team, which filed their case shortly after the Bostic case was filed. The Bostic case moved forward much more quickly, and the federal district court granted summary judgment to the plaintiffs on February 13 in Bostic v. Rainey, 2014 U.S. Dist. LEXIS 19110 (E.D. Va.), after the newly-elected governor and attorney general of Virginia announced that they agreed with plaintiffs that the state’s marriage amendment and statutory ban were unconstitutional. As these officials (and subsequently the state’s registrar of vital records) were no longer defending the ban, the case was being pushed forward on appeal by two county court clerks.

Meanwhile, the Harris case was still at the pre-trial stage, with the trial judge having certified it as a class action on behalf of all same-sex couples interested in marrying or having their marriages recognized in Virginia, except for the plaintiff couple in Bostic v. Schaefer (as the case was now called). This prompted ACLU/Lambda to petition the 4th Circuit to be allowed to participate in the appeal on behalf of their plaintiff class, and the 4th Circuit granted the motion on March 10. This left the judge in Harris v. Rainey, Michael F. Urbanski, in a rather odd position. He was facing a summary judgment motion from the plaintiffs, but nobody was actually opposing the motion, since all defendants in the case had dropped any support for the marriage ban. (The local clerk in this case, Thomas E. Roberts of the Staunton Circuit Court, officially takes no position on the constitutionality of the ban.) And, of course, whatever the 4th Circuit decides will be binding on Judge Urbanski, so it made little sense for him to issue a decision on the pending motion before that happened. He took the prudent step of issuing an opinion on March 31, see 2014 Westlaw 1292803, announcing that he would “stay this case” pending the 4th Circuit’s decision. Of course, if the 4th Circuit rules against marriage equality in Bostic, the plaintiffs will either apply for en banc rehearing or petition the Supreme Court for certiorari. But they may not be the first to get there, depending what happens in the 10th Circuit.

There has also been an interesting development in the 6th Circuit, which now has the distinction of being the only circuit to have marriage equality appeals pending from every state in the circuit: Michigan, Ohio, Kentucky, and Tennessee. Michigan Attorney General Bill Schuette filed a petition with the court on April 4, asking that Michigan’s appeal of a federal court order in DeBoer v. Snyder, 2014 U.S. Dist. LEXIS 37274 (E.D. Mich., March 21, 2014), requiring the state to allow and recognize same-sex marriages, by-pass the usual three-judge panel stage and go directly to en banc review, which in the 6th Circuit would mean review before the full bench of 15 active judges.

The 6th Circuit had already issued an expedited briefing schedule after issuing a stay of the district court’s ruling, mirroring the schedules issued in the Kentucky and Tennessee cases, and following shortly on the schedule for the earlier-filed Ohio death certificate case. Commented Schuette, “Accordingly, all four cases are proceeding swiftly in parallel and will have briefing completed within weeks of each other.” Referencing Federal Rules of Appellate Procedure 35, which recognizes that some cases are “so significant that they warrant initial hearing en banc,” Schuette asserted, “This is such a case. It presents the question whether one of our most fundamental rights — the right to vote — matters, or whether a judge can take an important social issue out of the hands of the voters by concluding it is not something about which reasonable citizens can disagree.” This is a very loaded way of stating the question. For one thing, the Supreme Court has not recognized voting as a fundamental right; if it had, recent decisions upholding voter ID laws would certainly have come out differently. For another, it mischaracterizes the “rational basis test” as applied by the district court in this and other cases.

At any event, Schuette is undoubtedly correct that an early resolution of this case would be helpful. No matter how it turns out, it is likely headed to the Supreme Court. On the other hand, Schuette may be playing a numbers game here. The 6th Circuit now has 10 active judges appointed by either George H.W. or George W. Bush, three judges appointed by Clinton and two by Obama, with one vacancy. The en banc court has a 10-5 Republican-appointed majority. A three-judge panel, on the other hand, depending on the luck of the draw (and assuming random panel compositions) might even have a majority of Democratic appointees. On the other hand, several of the marriage equality decisions rendered since Windsor have been issued by Republican appointees, so it looks like pre-judicial political affiliations of the judges are not playing a big role in these post-Windsor cases. Be that as it may, this issue is not going to be finally decided in any federal court of appeals; only a Supreme Court resolution will be accepted by any of the states that are actively defending their bans in court. (The one major looming exception is Oregon, where state officials have informed the federal district judge in a pending marriage equality case that if he rules in favor of plaintiffs after a summary judgment hearing scheduled soon, the state will comply and not appeal, and no objecting county clerks have moved to intervene as defendants to take the case on appeal.) So, stay tuned for possible interesting developments in the 6th Circuit. What might be most efficient, of course, would be for the court to consolidate the pending appeals from the four states into one grand proceeding, hear it en banc, and issue an opinion dealing with all the cases simultaneously. That would be something special, no matter how it turned out!

There are also interesting developments in the 9th Circuit, where an appeal is pending by Lambda Legal of an adverse decision from the federal district court in Nevada that predates Windsor, Sevcik v. Sandoval, 911 F. Supp. 2d 996 (D. Nev. 2012). The state was actively defending this case on appeal, but abruptly altered its position after a three-judge panel of the 9th Circuit ruled on January 21 in SmithKline Beecham v. Abbott Laboratories, 2014 U.S. App. LEXIS 1128, that sexual orientation discrimination claims are subject to “heightened scrutiny” under the 14th Amendment. That case is an antitrust lawsuit between competing pharmaceutical companies about HIV-related drugs, and Abbott, the defendant, used a peremptory challenge to keep a gay man off the jury. The 9th Circuit panel held that a peremptory challenge could not be used for that purpose; after Windsor, held the panel, prior 9th Circuit cases on point were no longer valid and the heightened scrutiny standard meant that in order to remove a juror because he was gay, the defendant would have to show that there was cause to question the particular juror’s ability to decide the case fairly. When Abbott announced it was not seeking en banc review or planning to appeal this to the Supreme Court, Nevada’s governor and attorney general announced their conclusion that the Nevada ban was not defensible in the 9th Circuit. They didn’t withdraw their appeal, however, as amicus parties would step up to argue in support of the ban and, presumably, if the case got to the Supreme Court, state officials might again take up the argument.

The 9th Circuit had scheduled oral argument to take place on April 9, a day before the 10th Circuit Utah argument, but then, mysteriously, cancelled that hearing date without announcing a new one. Word was that a judge of the circuit asked for more time to prepare for the hearing. But it eventually appeared that there was some sentiment within the Circuit to reconsider the panel decision in SmithKline before proceeding with the Nevada marriage case, as the court issued a notice to the parties informing them that a judge of the circuit had asked to consider going en banc, and the parties were directed to submit briefs on the question whether the case should be reconsidered en banc. This effectively puts off the Nevada case for a while, since it is unlikely the Circuit would scheduled a new hearing until it has decided whether to reconsider SmithKline, and how such reconsideration turns out would affect whether Nevada officials reconsider their decision not to defend their ban before the 9th Circuit. Complicated, what? In addition, of course, what happens in this case affects the marriage equality lawsuits pending in several other states in the 9th Circuit: Arizona, Idaho, and Oregon. So here is some real legal suspense playing itself out.

Finally, turning back again to the 6th Circuit, and specifically to Ohio, there was a new development on April 4 when District Judge Timothy Black, in Cincinnati, held a hearing on a more recently filed marriage equality case, Henry v. Wymsylo, brought by some married lesbian couples seeking an order that Ohio recognize their marriages. Plaintiffs had filed a motion for permanent injunction and declaratory relief. Judge Black, who had previously issued a ruling that the state must recognize out-of-state same-sex marriages for purposes of recording death certificates in Obergefell v.Wymyslo, 962 F. Supp. 2d 968 (S.D. Ohio 2013), announced at this hearing that he “anticipates striking down as unconstitutional under all circumstances Ohio’s bans on recognizing legal same-sex marriages from other states,” and would issue an opinion to that effect “on or before April 14, 2014.” This order would go beyond the Obergefell case, since it would extend beyond recognition for a specific purpose (death certificates, birth certificates) to a more general recognition requirement, similar to those issued by other trial judges in the 6th Circuit in Kentucky, Bourke v. Beshear, 2014 U.S. Dist. LEXIS 17457 (W.D. Ky., Feb. 12, 2014), and Tennessee, Tanco v. Haslam, 2014 U.S. Dist. LEXIS 33463 (M.D. Tenn., March 14, 2014). Presumably, the state would quickly file its appeal and this could be consolidated with the pending appeal of the Obergefell decision and perhaps, as noted above, consolidated by the 6th Circuit with its hearings in the Michigan, Tennessee and Kentucky cases. It would certainly make sense to do so, as the legal issues are identical in all these cases.

So, things are quickly coming to a boil at the appellate level, even as new marriage equality cases have been filed in recent weeks in other states, and the count of marriage equality cases on file nationwide is rapidly approaching litigation in every state that does not already allow same-sex couples to marry. As of now, same-sex couples can marry in 17 states and the District of Columbia, and a majority of those states, as well as D.C., achieved marriage equality through the legislature, not through judicial action. In addition, of course, as a result of the Windsor decision, the federal government now recognizes same-sex marriages validly concluded under state law for most purposes, providing at least partial recognition for same-sex couples who marry in states other than where they reside. The tide toward marriage equality appears irresistible, as public opinion polls show majority support in the electorate (and even, when things are broken down demographically, by residents of many non-marriage-equality states and by young Republicans). This will likely end up in the Supreme Court next term, so spring 2015 may be when the marriage equality issue is resolved in the United States.

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2nd Circuit Panel Rejects Constitutional Challenge to NYC School’s Exclusion of Religious Worship Services from School Buildings

Ruling in a long-running case that may not yet be at an end, a panel of the Manhattan-based U.S. Court of Appeals for the 2nd Circuit ruled on April 3 that the New York City Board of Education did not violate the First Amendment when it adopted a policy in 2007 providing that outside organizations and individuals may receive permits for use of school buildings outside of school hours but not if their purpose is to hold “religious worship services.” The lawsuit was filed by a church, the Bronx Household of Faith, whose application to hold religious worship services at a public school in the Bronx was denied after this policy was adopted.

This church and the Board of Education have been litigating about the church’s access to school space for a long time. Judge Pierre Leval’s April 3 opinion cites four prior opinions by the court of appeals, all titled Bronx Household of Faith v. Board of Education, dating back as far as 1997. In the litigation that followed the Board’s 2007 policy adoption and subsequent denial of a new application by the church, District Judge Loretta Preska had ruled that the policy violated the church’s First Amendment free speech rights. A content-based regulation or prohibition of speech can only be upheld if the government has a compelling interest in limiting the speech, usually to avoid serious public disorder, and Judge Preska held that this standard had not been met. The earlier ruling did not turn on the religious nature of the case. The 2nd Circuit disagreed with Judge Preska on that point, and sent the case back to her for further consideration. In her more recent ruling, she accepted the church’s argument that excluding religious worship services violated the church’s 1st Amendment right to free exercise of religion.

Essentially, the church argues that by opening up the schools to use by private (non-governmental) groups outside of school hours, the Board has created a public forum in which it may not discriminate against religious uses. Actually, as the majority of the panel pointed out in its decision, the Board’s exclusionary policy is rather narrow, and does not include all religious uses. For example, the church could receive a permit to hold a Bible-study group or a religious discussion group in a school building. The only limitation, quite narrowly, is to deny use of premises for an actual worship service. According to news reports, many small churches around the city who cannot afford to rent facilities large enough for worship services have sought to use school auditoriums, and have sometimes attracted hundreds of people to such services on a regular basis, hanging banners and other indicia that, in effect, convert the space into a religious sanctuary during the service.

In her most recent ruling, Judge Preska accepted the church’s argument that the Board’s policy violated the Free Exercise Clause because the schools are “the only location in which [Bronx Household's congregation] can afford to gather as a full congregation [for Sunday worship services] without having to curtail other of their religion’s practices.” The appeals court rejected this rationale. “The District Court cited no authority for this proposition,” wrote Judge Leval, “and we know none.”

“The Free Exercise Clause,” wrote Leval, “has never been understood to require government to finance a subject’s exercise of religion,” and the court considered that making school facilities available for religious worship services at little or no charge was actually a subsidy for the church, especially in light of the cost of renting large spaces in New York City. The court cited Supreme Court and lower court decisions reinforcing this point.

In dissent, Judge John Walker pointed to a Supreme Court decision that had struck down a municipal ordinance that prohibited a ritual chicken slaughter practice of a Christian sect, arguing that it was a form of discrimination against religion. Judge Preska had relied heavily on this decision, Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah (1993). Walker argued that singling out religious worship services for prohibition on school grounds was, similarly, a form of discrimination against religion. The majority rejected this contention, claiming that Judge Preska’s ruling was “based on a misunderstanding of Lukumi,” and that “a reasonable government decision not to subsidize a category of activity is not a suspect discrimination among religions merely because some religions do and others do not engage in that activity.” The court said that although there were “words in the Lukumi opinion which, if taken out of context, could be read as expressing such a message, it becomes clear when the words are considered in context that they mean no such thing.”

In Lukumi, the city was outlawing a specific religious practice. By contrast, the Board of Education was not outlawing anything. The churches are free to carry on their religious worship services, just not in school buildings paid for by the taxpayers. The court reported that the Board had expressed fear that allowing the services to be held in school buildings might violate the Establishment Clause, which forbids the government from endorsing or prefering a particular religion. Indeed, the Establishment Clause early in our history gave rise to the expression “a wall of separation between church and state,” signifying a belief that both government and religion would be better off if there is no entanglement between them. Along the same lines, the court rejected the church’s argument that the Board’s policy required a certain amount of entanglement, because school authorities would have to make decisions whether particular activities proposed by a religious organization to be held at a school constituted “religious worship services.” The court concluded that the need to make such determinations did not require any more entanglement than the recently adopted “ministerial exception” to Title VII, under which the Supreme Court held that the 1st Amendment required a judicially-devised exception to federal anti-discrimination laws for the employment policies of religious organizations, as they affect people occupying positions that the religious body regards as carrying out the ministering functions of the religion. (Those disputes tend to revolve around staff at religious schools.) In this case, the court found, there is minimal entanglement, because the plaintiff here specifically identified the purpose for the permit it was seeking as holding worship services, so school authority had no need to make further inquiry about the nature of the proposed activities.

Judge Leval also pointed out that in the Lukumi case, the regulation in question was adopted because the city council disapproved of ritual sacrifice of animals. In this case, however, there was no question of the Board of Education disapproving of religious worship services. “There is not a scintilla of evidence that the Board disapproves of religion or any religion or religious practice, including religious worship services,” he wrote. “Its sole reason for excluding religious worship services from its facilities is the concern that by hosting and subsidizing religious worship services, the Board would run a meaningful risk of violating the Establishment Clause by appearing to endorse religion.”

The court found that it was not necessary for it to decide whether allowing the services on school property would violate the Establishment Clause, however, concluding that it was sufficient in this case to find that the Board could reasonably have feared such a violation and wanted to avoid the possibility. Some opponents of allowing church services on school property were disappointed that the court did not make this additional finding, but it is a well-established tenet of constitutional adjudication that courts try to avoid deciding constitutional questions if they are not necessary to decide a case. In this instance, having found that the Board was not motivated by hostility toward religion, and that the policy was not adopted to suppress particular religious practices, the court saw no need to rule on the Establishment Clause question.

The court relied heavily on a 2004 decision by the Supreme Court, Locke v. Davey, which rejected a free exercise challenge to a limitation that the State of Washington put into its graduate scholarship program. The state, seeking to avoid any possible Establishment Clause argument, provided that such scholarships could not be used to fund education for religious ministry. A scholarship recipient could use the scholarship money to pursue graduate study in the history of religion, for example, but not to pursue a theology degree. The state was not banning education in theology, certainly, but was taking the position that the state shouldn’t pay to educate people to be ministers. (Paying for the education of ministers is a traditional state function in countries that have an established church, such as Great Britain’s Church of England. This was exactly the kind of practice that the proponents of the 1st Amendment were trying to avoid back in 1791 when it was adopted by Congress and proposed to the states for ratification.) While this might be called a form of discrimination against religion, the Supreme Court was not willing to condemn it, distinguishing the state of Washington’s action from that in the Lukumi case. “In the present case,” wrote the Supreme Court in Locke v. Davey, “the State’s disfavor of religion (if it can be called that) is of a far milder kind. It imposes neither criminal nor civil sanctions on any type of religious service or rite. It does not deny to ministers the right to participate in the political affairs of the community. And it does not require students to choose between their religious beliefs and receiving a government benefit. The State has merely chosen not to fund a distinct category of instruction.”

The 2nd Circuit panel similarly saw this as really a funding case. Can the Board of Education decide that it does not want to provide financial assistance by allowing its property to be converted to religious worship service use? In light of Locke, the 2nd Circuit panel majority did not see this as a difficult question. “Underlying the Board’s prohibition is a slightly different manifestation of the same historical and constitutional aversion to the use of public funds to support the practice of religion cited by the Court in Locke. As in Locke, the Board’s interest in respecting the principle of the Establishment Clause that disfavors public funding of religion is substantial, and the burden, if it can properly be called a burden, that falls on Bronx Household in needing to find a location that is not subsidized by the City for the conduct of its religious worship services, is minor from a constitutional point of view.” The court also emphasized the narrowness of the prohibition, as supporting the view that the policy does not reflect any general hostility to religion or particular hostility to Bronx Household, and said that the Board should be shielded from constitutional liability “if it makes a reasonable, good faith judgment that it runs a substantial risk of incurring a violation of the Establishment Clause by hosting and subsidizing the conduct of religious worship services.”

But, of course, given real estate prices in New York, the burden is not minor from a practical, logistical point of view, which may help to explain Judge Walker’s dissent. He argued that allowing the church to use public school space that is available generally to community groups “is hardly financing of that entity” and that “shutting the door to religious worship services in such a setting when every other activity is permitted strikes at the [Free Exercise] Clause’s core.” He argued that the policy “plainly discriminates against religious belief and cannot be justified by a compelling government interest.” Furthermore, Judge Walker signaled his view that this should not be the end of the case. “This case presents substantial questions involving the contours of both religion clauses and the Free Speech Clause of the First Amendment, the resolution of which are ripe for Supreme Court review,” he wrote.

However, political developments in response to the court’s ruling may alter the calculus and make further appeal unlikely, as Mayor Bill DiBlasio has stated his support for allowing churches that cannot afford to rent suitable space to use otherwise unused school buildings on Sundays, a view he reiterated in response to media inquiries after the 2nd Circuit decision was released. Since the legislature approved mayoral control of the school system early in the Bloomberg Administration, the mayor could undoubtedly prevail upon school authorities to change the rule and, if he did so, to moot the legal controversy. If he did that, however, the Establishment Clause question would loom large. Taxpayers objecting to the use of buildings constructed and maintained with public funds for religious worship services might set off new litigation, requiring an answer to the question the 2nd Circuit panel refused to answer in this case.

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Is ENDA Necessary? Or Will Title VII of the Civil Rights Act of 1964 Take Care of LGBT Discrimination

One of the major legislative goals of the LGBT rights movement is to get Congress to pass the Employment Non-Discrimination Act (ENDA), a measure that has been pending in Congress in one form or another since 1996 (with predecessor “gay rights” bills having been introduced since the mid-1970s). ENDA would prohibit employment discrimination because of a person’s sexual orientation, gender identity or expression, but would prohibit only intentional discrimination, not employer practices that are neutral on their face but have the effect of discriminating. It is narrowly drafted legislation, and has a big religious exemption that is controversial. And, although the current version was passed by a comfortable majority in the Senate last year, the Republican leadership in the House has refused to hold hearings or schedule a vote, and strategy for a “discharge petition” (a procedural floor vote to get the bill released from Committee and onto the floor for a vote on enactment) is at an early stage.

But what if ENDA is not needed? What if existing law already bans such discrimination? In 1964, Congress passed the Civil Rights Act, whose Title VII bans employment discrimination because of sex. For a long time, both the Equal Employment Opportunity Commission (EEOC) and the federal courts have ruled that discrimination against LGBT people is not prohibited, because in 1964 Congress did not intend to forbid such discrimination. In effect, Title VII was limited to cases where people were suffering discrimination because they are a man or a woman.

But the Supreme Court came to view “sex discrimination” more broadly, ruling in one case that a woman who suffered discrimination because she failed to conform to gender stereotypes (“too butch”) was a victim of sex discrimination, and in another case that a man who encountered a hostile environment in an all-male workplace (treated by his rougher, tougher co-workers as a sex toy) might also have a valid claim under Title VII. The EEOC and some lower federal courts have taken the next step in recent years, holding that discrimination because of gender identity is a kind of sex discrimination, because it is inspired by discomfort or disapproval with people defying conventional gender roles. There is a recent EEOC formal opinion to that effect, and a growing body of federal court decisions support this view.

But what about lesbians, gay men or bisexuals who are not gender-nonconforming in their appearance or conduct, but who encounter discrimination simply because their employer, co-workers or customers are biased against gay people? Before March 31, there were no court opinions suggesting that such a person might be protected from discrimination under Title VII, although some law review commentators had made the argument. On March 31, however, U.S. District Judge Colleen Kollar-Kotelly made history by issuing her opinion in Peter J. Terveer v. James H. Billington, Librarian, Library of Congress, 2014 Westlaw 1280301, 2014 U.S. Dist. LEXIS 43193 (U.S. District Ct., Dist. Columbia), holding that a man who suffered adverse treatment at the hands of an anti-gay supervisor could maintain a claim under Title VII, even though his only gender non-conforming characteristic is his sexual orientation.

According to the court’s opinion, Mr. Terveer was hired in February 2008 to be a Management Analyst in the Auditing Division of the Library of Congress. His first-level supervisor, John Mech, is described in the opinion as “a religious man who was accustomed to making his faith known in the workplace.” According to Terveer’s complaint, Mech said to him on June 24, 2009, that “putting you closer to God is my effort to encourage you to save your worldly behind.” According to the complaint, Terveer became close to Mech and Mech’s family, including his daughter. “In August 2009, Mech’s daughter learned that Plaintiff is homosexual,” wrote Judge Kollar-Kotelly. “Shortly thereafter, Plaintiff received an email from Mech mentioning his daughter and containing photographs of assault weapons along with the tagline ‘Diversity: Let’s Celebrate It.’”

Things went downhill from there. According to the complaint, Mech subjected Terveer to “work-related conversation to the point where it became clear that Mech was targeting Terveer by imposing his conservative Catholic beliefs on Terveer throughout the workday.” Terveer claimed that Mech stopped giving him detailed instructions with his assignments, instead making ambiguous assignments that, in effect, set up Terveer to fail, and assignments that were clearly beyond Terveer’s experience level. Terveer claims he was given one huge assignment that would normally require the attention of half a dozen employees, and then Mech piled additional work on top of that.

Terveer alleged that on June 21, 2010, Mech called an unscheduled meeting that lasted more than an hour, “for the purpose of ‘educating’ Terveer on Hell and that it is a sin to be a homosexual, that homosexuality was wrong, and that Terveer would be going to Hell.” Mech recited Bible verses to Terveer and told him, “I hope you repent because the Bible is very clear about what God does to homosexuals.” A few days later, Terveer received his annual review from Mech, and felt it did not reflect the quality of his work. Terveer believed that the review “was motivated by Mech’s religious beliefs and sexual stereotyping.” Terveer confronted Mech about this unfair treatment, which got Mech angry, vehemently denying that he was partial, and he accused Terveer of trying to “bring down the library.”

Terveer next went to Mech’s supervisor and told him about what was happening. According to Mech’s account of that meeting with Nicholas Christopher, Christopher told him that, in his opinion, “employees do not have rights,” and Christopher took no action to remedy the problem or advise Terveer about appropriate complaint procedures. According to Terveer, Mech’s response to this was to put Terveer under “heightened scrutiny” supervision by Mech and to generate an evaluation of the project to which Terveer had been assigned, even though it wasn’t finished, that was “extremely negative.” Terveer got into an argument with Mech about this evaluation, and Mech told him that he was “damn angry” that Terveer had threatened to bring a claim for wrongful discrimination and harassment. According to Terveer, Mech ended his tirade with the statement, “You do not have rights, this is a dictatorship.”

Early in 2011 Mech issued another negative evaluation of Terveer and put him on 90-day written warning, which could lead to Terveer not receiving the pay increase he would ordinarily receive. Terveer then initiated a discrimination claim with the EEOC. An attempt by another agency officer to get him transferred away from Mech failed when Mech’s supervisor said that Terveer was “on track to be terminated within six months.” As things deteriorated further for Terveer, he finally filed a formal complaint on November 9, 2011, alleging discrimination because of religion and sex, sexual harassment, and reprisal. Terveer had been suffering emotional distress from the situation and ended up taking lots of leave time, ultimately claiming that he was constructively terminated on April 4, 2012, because he could not return to the workplace to confront Mech and Christopher. The Library formally terminated him, and his appeal within the Library’s grievance process was unsuccessful. The agency issued a decision on May 8, 2012, denying his discrimination claims. He filed suit on August 3, 2012, alleging violations of Title VII and the constitution, as well as Library of Congress regulations and policies.

The court faced a variety of legal issues in ruling on the defendants’ motion to dismiss the case, the most serious of which was the failure of Terveer to pursue various administrative remedies before he resorted to a lawsuit. But perhaps the most important part of the opinion addresses the Defendant’s claim that the facts alleged by Terveer would not suffice for a legal claim of discrimination under Title VII. At the time that the Defendants filed this motion, federal courts had limited protection against discrimination for gay men to situations where a supervisor’s discriminatory conduct was motivated by judgments about a plaintiff’s behavior, demeanor or appearance that failed to conform to sexual stereotypes, and Terveer was not alleging that his behavior or appearance failed to conform to stereotypes about “manly men.”

But Judge Kollar-Kotelly saw Title VII’s protection as broader than these traditional gender stereotyping cases. “Under Title VII,” she wrote, “allegations that an employer is discriminating against an employee based on the employee’s non-conformity with sex stereotypes are sufficient to establish a viable sex discrimination claim. Here, Plaintiff has alleged that he is ‘a homosexual male whose sexual orientation is not consistent with the Defendant’s perception of acceptable gender roles,’ and that his ‘status as a homosexual male did not conform to the Defendant’s gender stereotypes associated with men under Mech’s supervision or at the (Library of Congress),’ and that ‘his orientation as homosexual had removed him from Mech’s preconceived definition of male.’” This, found the judge, was sufficient to meet the burden under the Federal Rules of Civil Procedure to set forth “a short and plain statement of the claim showing that the pleader is entitled to relief.” Since Terveer had alleged that the Library had denied him promotions and created a hostile work environment because of his “nonconformity with male sex stereotypes,” Terveer could proceed with his claim.

The judge emphasized that the burden on the plaintiff to state a claim at this stage of the litigation is “relatively low” when a court is deciding a motion to dismiss, before there has been any discovery in the case. Interestingly, the judge found another basis for Terveer’s Title VII claim in the religiously-motivated bias of his supervisor, observing that past courts had allowed claims of discrimination in such cases. “The Court sees no reason to create an exception to these cases for employees who are targeted for religious harassment due to their status as a homosexual individual,” she wrote, refusing to dismiss Terveer’s religious discrimination claim under Title VII. The judge also found that Terveer’s factual allegations would be sufficient grounding for a claim of a “retaliatory hostile work environment.” However, she noted, having found that Terveer’s claims are covered, at least at this early stage in the case, under Title VII, the court would have to dismiss his constitutional due process and equal protection claims, as the Supreme Court has made clear that Title VII is the exclusive remedy for federal employees with discrimination claims that come within its scope.

The bottom line for this ruling was that although certain claims were dismissed for failure to exhaust administrative remedies, the court refused to dismiss the sex and religious discrimination claims, as well as the retaliation claim. In so doing, the court made history with its acceptance that a gay man who was not gender non-conforming in appearance or behavior could assert a sex discrimination claim when a supervisor’s own religiously-inspired stereotyped notions of proper sex roles motivated adverse treatment of the gay employee.

While such a ruling is most welcome, it would probably be premature to suggest that ENDA is not needed. This is one non-precedential ruling on a pre-trial dismissal motion by a single federal judge. However, it reflects the broadening trend of defining sex under Title VII reflected in the growing body of cases rejecting motions to dismiss such claims brought by transgender plaintiffs, and may portent more definitive rulings expanding Title VII’s sex discrimination ban to claims brought by otherwise-gender-conforming LGBT plaintiffs.

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