New York Law School

Art Leonard Observations

Supreme Court Argument Leaves Marriage Equality Proponents Cautiously Optimistic for June 2015 Victory

 My first take on today’s oral argument in the Supreme Court:

The United States Supreme Court heard oral arguments in Obergefell v. Hodges, No. 14-556, on April 28, considering the questions whether same-sex couples have a right to marry and to have their marriages recognized by states other than those in which they marry.  The case consolidated appeals from the plaintiffs in four states – Ohio, Tennessee, Michigan and Kentucky — whose district court victories were reversed by the U.S. Court of Appeals for the 6th Circuit in %DeBoer v Snyder%, 772 F.3d 388 (6th Cir. Nov. 6, 2014).  Most commentators agreed that it was possible that the Court would reverse the 6th Circuit on one or more grounds, but during the argument the Court appeared closely divided, and the “swing Justice,” Anthony M. Kennedy, Jr., did not give any clear signal from his questioning and comments about which way he was leaning, sometimes appearing skeptical about the plaintiffs’ claims, at other times supportive.

The Petitioners (plaintiffs in the trial courts) and Respondents (the states, which were defending their victory in the Court of Appeals), had complied with the Court’s request to designate one advocate from each side on each question, with the addition of Solicitor General Donald B. Verrilli, Jr., arguing in support of Petitioners on behalf of the Obama Administration.  Petitioners designated Mary Bonauto, Civil Rights Project Director at Gay & Lesbian Advocates & Defenders, the Boston-based public interest law firm, to argue the marriage question, and Douglas Hallward-Driemeier, head of the Supreme Court litigation practice at the law firm Ropes & Gray LLP, to argue the recognition question.  This was Bonauto’s first Supreme Court argument, but not her first appellate argument on marriage equality, as she had argued the Massachusetts marriage equality case in 2003 that led to the first legal same-sex marriages being performed in the United States.  The Respondents settled on former Michigan Solicitor General John Bursch to argue the marriage question, and Tennessee Associate Solicitor General Joseph Whalen to argue the recognition question.  Whalen was the only one among the advocates who personally participated in the argument before the 6th Circuit, successfully defending Tennessee’s ban on recognition of same-sex marriages.

Bonauto led off the argument and it quickly became clear that the four Democratic appointees to the Court – Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan – were likely votes in favor of same-sex couples having the same fundamental right to marry as different sex couples.  Chief Justice John Roberts quickly moved to dispel the speculations of some commentators that he was a potential vote for marriage equality, as he suggested that what the plaintiffs were seeking was not just “to join the institution, you’re seeking to change what the institution is.”  Roberts characterized “the opposite-sex relationship” as “the fundamental core of the institution” of marriage, and he signaled opposition to the idea that judges rather than legislatures or the voters in referenda should decide whether to change that definition.

As expected, Justice Antonin Scalia weighed in with arguments familiar to anybody who read the 6th Circuit opinion by Judge Jeffrey Sutton, one of his “originalist” acolytes.  Scalia asserted that the question before the Court was not “where there should be same-sex marriage,” but rather “who should decide the point,” and clearly signaled his view that it should be decided by the democratic process of voting and legislating, not by judges.  None of Justice Samuel Alito’s questions or comments suggested any real sympathy for the plaintiffs’ position either, and of course Justice Clarence Thomas was true to form in refraining from questioning or offering comments.

So, as had been speculated from the beginning, the outcome will likely fall to Justice Kennedy, and his opening sally was not calculated to reassure those who were counting on him to quickly embrace the trajectory of his prior opinions for the court in the DOMA and sodomy cases.  “This definition [of marriage] has been with us for millennia,” he pointed out.  “And it’s very difficult for the Court to say, oh, well, we know better.”  On the other hand, he noted that the amount of time between the Supreme Court’s decision striking down racial segregation in public schools and subsequent decision striking down laws against interracial marriages was “about the same” as the time between striking down sodomy laws and the present case on same-sex marriage.  “And so there’s time for the scholars and the commentators – and the bar and the public – to engage in it,” he pointed out.

Kennedy came closer to tipping his hand in the other direction when John Bursch stood up to argue on behalf of the states defending their marriage bans.  Kennedy pressed Bursch to explain how allowing same-sex couples to marry would harm “conventional marriage,” but he left it to the other justices, particularly Breyer and Kagan, to pursue the point as Bursch put forward the notion that the state has a particular interest in assuring bonds between children and their biological parents, with Kennedy only interjecting a question of two along the way, although he characterized as “just a wrong premise” the argument that “only opposite-sex couples can have a bonding with the child.”

Kennedy seemed particularly indignant when Bursch discounted the significance of the dignity that the state bestows on a couple by according them the right to marry.  Bursch had suggested that the state has no particular interest in this, being primarily concerned with children, not with the relationship between the adults.  This was not a good strategic move on his part, in light of Kennedy’s expressed concern in his DOMA opinion about the “dignity” states confer on married couples.  “I don’t understand this not dignity-bestowing,” Kennedy commented.  “I thought that was the whole purpose of marriage.  It bestows dignity on both man and woman in a traditional marriage.  It’s dignity bestowing, and these parties say they want to have that same enoblement.”  When Bursch insisted that “the State has no interesting in bestowing or taking away dignity from anyone, and certainly it’s not the State’s intent to take dignity away from same-sex couples or from anyone based on their sexual orientation,” Kennedy sharply responded, “Well, I think many states would be surprised, with reference to traditional marriages, they are not enhancing the dignity of both the parties.”

Solicitor General Donald Verrilli focused his argument entirely on equal protection, and he was pushed during the questioning on his failure to make the fundamental right to marry argument.  It became clear from the questioning from the conservative justices that they saw the right to marry argument as a non-starter because of – at least in their view – the difficulty of accepting a fundamental right to marry and then having to confront arguments on behalf of a right to plural marriages.  Alito posed a hypothetical about two men and two women seeking to marry as a foursome, which introduced a discordant note into the discussion, and Scalia also harped on this issue.

One absurd point arose when Scalia questioned Bonauto about whether a minister might be required to perform same-sex marriages against his or her religious belief.  Bonauto responded that the First Amendment would shield a minister from any such obligation, but Scalia insisted that if there was a constitutional right to marriage, that might be held to overcome the minister’s free exercise of religion defense.  Bonauto pointed out that no minister had been prosecuted for refusing to perform marriages in marriage equality states, and Justice Kagan jumped in with the example of rabbis who refuse to perform marriages between Jews and non-Jews.  While listening to this part of the argument, I was waiting for somebody to raise the example of Catholic priests who condition their willingness to perform marriages between Catholics and non-Catholics upon the commitment of the non-Catholic parent that the children be raised as Catholics, but nobody suggested that.  Of course, consistent with the Free Exercise Clause, no court would ever order a religious officiant to perform weddings that would violate their religious beliefs, so this was a silly line of questioning.

Bonauto closed with a rebuttal argument that was so precise and well-focused that she was not interrupted for any questions as she highlighted the basic inconsistencies in Bursch’s arguments.  One note of unexpected rama was introduced when a member of the audience stood after Bonauto had finished and burst into a diatribe about sin and abomination until escorted out by security officials.  Chief Justice Roberts seemed ready to delay the Solicitor General’s argument, but Verrilli signified he was ready to press forward.  Scalia made a cryptic remark that the outburst was “refreshing.”  Perhaps he meant to suggest that the Court seriously consider religious objections to same-sex marriage.

After a brief recess, the Court turned to the second question, whether states are required by the 14th Amendment to recognize same-sex marriages contracted in other states.  Douglas Hallward-Driemeier was quickly interrupted by Justice Alito.  “I am somewhat surprised by the arguments you made in your brief,” he said, “because they are largely a repetition of the arguments that we just heard with respect to Question 1.  I thought the point of Question 2 was whether there would be an obligation to recognize a same-sex marriage entered into in another State where that is lawful even if the State itself, constitutionally, does not recognize same-sex marriage.  I thought that’s the question in Question 2.  Am I wrong?”

This quickly clarified a mystery that had caused much speculation among legal commentators after the Court announced that it would review the 6th Circuit’s decision.  Why the second question, since it seemed obvious that if same-sex couples have a right to marry the right to recognition of out-of-state marriages would naturally follow?  This question was posed so that if the Court ruled against the plaintiffs on the right to marry, it could then confront the question whether a state that refuses to allow same-sex marriages – and is constitutionally free to do so – may nonetheless be obliged to recognize out-of-state same-sex marriages.  Justice Alito’s question thus framed the issue for the second hour of argument.

And Alito and Scalia energetically followed up with questions and hypotheticals about forcing states to recognize the validity of marriages that they wouldn’t allow to be formed within their own borders.  Even Kennedy joined in briefly, pointing out that if the Court determined that states do have a sufficient justification for refusing to issue marriage licenses to same-sex couples, might not the same justification suffice to allow them to refuse to recognize such marriages from out-of-state?  Justice Ginsburg did jump in to nail down the point that if the plaintiffs won the right to marry on Question 1, “then the argument is moot.”  Hallward-Driemeier agreed with her, as Joseph Whalen also conceded during his part of the argument.  Hallward-Driemeier emphasized the harms to same-sex couples who married and had children in other states and then might be moved by an employer – the starkest example was the military as an employer – to a state that didn’t recognize their marriage.  This seemed well-calculated to appeal to Justice Kennedy, since he had articulated a concern for the welfare of children of same-sex couples in his DOMA opinion.

As soon as Whalen got up to defend the recognition bans, Scalia appeared to surprise him by raising the Full Faith and Credit Clause, Article IV of the Constitution, which has barely been mentioned over the past two years of marriage recognition litigation.  In 1996, Congress adopted as part of the Defense of Marriage Act a provision stating that states were not required to accord full faith and credit to same-sex marriages from other states.  That provision has not been declared unconstitutional, and in the DOMA decision Justice Kennedy observed that it was not being challenged in that case.  Instead, lower federal courts have focused on the Equal Protection Clause and generally found that states had no rational basis for recognizing different-sex marriages from other states but refusing to recognize same-sex marriages.  Some scholars addressing this issue after passage of DOMA in 1996 observed that traditionally the Full Faith and Credit Clause had not been invoked in marriage recognition cases, since it was not really clear that the Clause even applied to marriages.

But Scalia pressed the point with Whalen.  Always the textualist, Scalia said, “I’m so glad to be able to quote a portion of the Constitution that actually seems to be relevant.  ‘Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State.’  Now, why doesn’t that apply?”  Whalen sought to draw a distinction between “judgments” of courts, which courts routinely honor, as opposed to “laws of each state.”  “And the reason in part that the Court’s decision have said that is that otherwise, each State would be able to essentially legislate for every other State,” he continued.  “Public acts?” asked Scalia in response.  “It would include the act of marrying people, I assume.”  Whalen responded, “My understanding of this Court’s decisions as the reference in the Constitution to public acts is that each State’s laws.”  “So there’s nothing in the Constitution that requires a State to acknowledge even those marriages in other States that are the same?” asked Scalia, receiving an affirmative response from Whalen.  “Really,” asked Scalia, sounding skeptical.  Justice Breyer was eventually drawn into the discussion, indicating he might have to head back to his chambers and start reading Full Faith and Credit cases, evoking laughter from the audience.  Other justices were soon drawn in to what became a rather esoteric conversation about the interpretation and application of the Full Faith and Credit clause, which one suspects was not fully anticipated by the advocates.  There even seemed to be some indication, if perhaps just fleeting, that Chief Justice Roberts might see an application of the Full Faith and Credit Clause here, which could feed speculation that even if the Court were to rule adversely on Question 1, there might be a majority including some of the more conservative justices in favor of marriage recognition.  But only fleeting. . .

When Whalen picked up on Bursch’s argument about the state’s interest in maintaining its definition of parenthood as “biologically-based” as a reason not to recognize the parental status of same-sex spouses towards their children, Justice Sotomayor jumped in, responding to his assertion that Tennessee had always rooted the meaning of parenthood in a biological relationship between parent and child.  “Oh, but you do that for adoptions,” she said.  “What’s the problem?  This is a really big deal?”  Whalen responded, “It is a big deal, Your Honor, because you are changing the way the State defines a parent.  And in the adoption context, you have to understand adoption and the traditional definition of marriage, they work in tandem.  They work together.  As Mr. Bursch described, the objective with regard to marriage is to link children with their biological parents.  When that breaks down, then there’s adoption.”  Sotomayor responded by asking whether a state can refuse to recognize a birth certificate issued by another state that identifies same-sex spouses as the parents of a child.  “Do you think the word ‘records’ in the Constitution includes birth certificates,” referring again back to the Full Faith and Credit Clause.  After Whelan’s affirmative response, Sotomayor continued, “So California without any reason, no suspicion of fraud, no anything, could it refuse to recognize another State’s birth certificate.  Records to me has to have a meaning.”

“Record has a meaning,” Whalen responded.  “It does, your Honor.  The reason that I’m hesitant is that I know that there is disagreement in the cases about exactly what the impact of that is between whether that just means we have to acknowledge the existence of the record for evidentiary purposes, or whether the effect of the record has to be acknowledged.”  “But if a birth certificate were to be a record,” asked Sotomayor, “don’t you think a marriage certificate – it’s an official act of a State.”  While Whalen acknowledged as much, he continued, “I think that the laws that allowed that marriage to occur, when they are different fundamentally with the laws of a State like Tennessee, preclude the application of that same principle from one State to the other.”

Hallward-Driemeier’s rebuttal, like Bonauto’s, was so tightly focused that none of the justices interrupted with questions.  He concentrated on demonstrating the real harms suffered by same-sex couples exemplified by two of the plaintiff couples who had relocated and been denied recognition of their marriages, in one case in the context of emergency medical care for one of their children.  This, of course, was well-calculated to invoke Justice Kennedy’s concern.  For those looking to read the Kennedy tea leaves, there was little to work on in the Question 2 argument, since he barely spoke at all.  Hallward-Driemeier ended with the stark evocation of Jim Obergefell’s struggle to be properly recorded as a surviving spouse on his husband’s death certificate.

Commentators and analysts are likely to pick over the transcript and audio recordings for the next few months trying to find hopeful signs about how the case will turn out, but they may be disappointed to find that the likely “swing” voter, Justice Kennedy, had much less to say than those justices whose positions are much more predictable pro and con.  The most hopeful sign for marriage equality proponents springs not from these arguments, but more from the prior actions of the Court, denying review of the 4th, 7th and 10th Circuit pro-marriage equality rulings last October 6, which allowed same-sex marriage to go into effect eventually in all the states in those circuits, and denying stay petitions from several 9th Circuit states as well as Florida and Alabama, in cases that had not yet been reviewed by the 11th Circuit Court of Appeals (which had also refused to stay the marriage equality rulings from those states).  These actions seemed to clearly indicate that a majority of the Court was on-board with marriage equality, since the stay denials contributed to facts on the ground spreading marriage equality to 37 states representing over 70% of the population, and making the prospect of an adverse ruling on Question 1 a daunting proposition liable to generate frenzied litigation over the status of thousands of marriages performed in those states.  When viewed from that perspective, it seemed highly likely that Justice Kennedy would overcome any qualms he might have about suddenly abandoning “millennia” of different-sex marriage traditions in favor of avoiding the dignitary, financial and other harms suffered by same-sex couples and their children denied the benefits of marriage.

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Florida Courts Can Grant Divorces to Married Same-Sex Couples

The Florida 2nd District Court of Appeal ruled on April 24 in Brandon-Thomas v. Brandon-Thomas, 2015 Fla. App. LEXIS 6051, 2015 WL 1874457, that a same-sex couple that married in Massachusetts but resides in Florida could seek a divorce in a Florida court.  The unanimous three-judge panel found that the state had no rational basis for treating such a marriage differently from other out-of-state marriages.  The ruling reverses a 2013 decision by Lee County Circuit Judge John E. Duryea, Jr., who dismissed the divorce petition filed by Danielle Brandon Thomas.

Danielle and Krista Brandon Thomas married in Massachusetts in 2012 and subsequently relocated to Florida.  They have a child, for whom Krista is the birth mother.  According to the Per Curiam opinion issued by the Court of Appeal, “the marriage soured” after they relocated to Florida and Danielle filed a divorce petition in October 2013.  In her petition, Danielle asked the court to “determine parental responsibility and child support issues, as well as equitable distribution.”

Why would Krista oppose the divorce petition?  In her motion to dismiss the petition, she “alleged that she was both the birth mother and genetic mother of the child and that Danielle therefore had no standing to request shared parental responsibility or child support.”   It seems that Krista hoped by defeating the divorce petition to avoid a court ruling that Danielle was entitled to exercise parental rights to the child, or a court ruling requiring a division of assets.

The trial court based its dismissal on Florida’s Defense of Marriage Act and a state constitutional amendment that forbids recognition of same-sex marriages.  At the time the trial court ruled, those provisions had yet to be declared unconstitutional.  But after the U.S. Supreme Court’s June 2013 decision striking down part of the federal Defense of Marriage Act, several lawsuits were filed by same-sex couples in Florida seeking both the right to marry and the right to recognition of out-of-state marriages.  Florida Attorney General Pam Bondi has energetically opposed these lawsuits and appealed adverse rulings.  However, on December 19, 2014, the U.S. Supreme Court rejected her petition to stay a federal trial court ruling finding the Florida laws unconstitutional under the 14th Amendment, and same-sex couples began marrying in Florida early on January 6, 2015.

Surprisingly, the Per Curiam opinion by the court doesn’t mention any of this marriage litigation and doesn’t purport to base its ruling on the federal decisions, although they are mentioned in a concurring opinion by Judge Edward C. LaRose.  Instead of issuing a ruling that, of course, Florida courts can decide divorce cases for married same-sex couples because same-sex marriage is now legal in Florida, the court ruled as if the status of those Florida laws relied upon by Krista has not changed.

Instead, the court based its decision on the Full Faith and Credit Clause of the U.S. Constitution, which provides: “Full Faith and Credit shall be given in each State to the public acts, Records, and judicial Proceedings of every other State.”   After noting that Florida courts have not treated “sexual orientation” as a “suspect classification,” the court said that “the right of a same-sex couple to seek a dissolution of marriage in Florida, when they were validly married in another state but now live in Florida, is not a fundamental right for federal constitutional purposes.  Thus, Florida bears the burden of presenting only a rational basis for its classification.”

The court found that neither Krista, in opposing the divorce petition, nor the state, which intervened to advance its view that Florida courts may not recognize out-of-state marriages, even for the purpose of dissolving them, had failed to present such a “rational basis” for the Florida laws forbidding recognition of same-sex marriages.

“Krista refers to ‘a societal inducement for opposite-sex couples to marry, thus decreasing the percentage of children accidentally conceived outside of a stable, long-term relationship,’” commented the court.  “But this argument seems to ignore the biological fact that same-sex couples do not contribute to the problem of children ‘accidentally conceived’ outside of a stable, long-term relationship because, as a matter of pure biology, same-sex couples simply cannot ‘accidentally conceive’ children.”  This comment seems ironic, since prior to the recent surge of marriage equality decisions, several courts, including New York’s highest, had relied on the biological impossibility of same-sex couples accidentally conceiving children as a justification for the state providing marriage for different-sex couples but not same-sex couples.  Now the tables are turned!

Attorney General Bondi argued that “Florida’s refusal to recognize same-sex marriage furthers Florida’s long-standing history of defining marriage as being between a man and a woman.”  The court pointed out that refusing to give divorces to married same-sex couples living in Florida “seemingly contravenes Florida’s public policy.”

“If the policy is to prevent, eliminate, discourage, or otherwise preclude same-sex marriage in Florida, permitting the courts to dissolve same-sex marriages that have been previously entered into in other states would arguably further that policy by reducing the number of same-sex married couples in Florida,” the court wrote, stating that the Attorney General had failed to identify a “public purpose” that is served by denying divorces to such couples.

The court was disturbed by the practical impact of the trial court’s order dismissing the case, which is to deprive Danielle and the child of a judicial forum for determining what custody and visitation and child-support arrangements should be.  “The fact that a child is involved implicates Florida’s strong public policy to protect children by determining custody matters in accordance with the best interests of the child,” the court concluded.

In his concurring opinion, Judge Darryl C. Casanueva emphasized an alternative theory for finding jurisdiction: a right of access to the courts to determine the legal rights and responsibilities of parties upon the break-up of a marriage.  Same-sex couples married out-of-state are similarly situated with different-sex couples married out of state and equally in need of access to Florida courts to dissolve their marriages.  The judge pointed out that the U.S. Supreme Court had found a due process violation in the past when a state imposed significant fee barriers to couples seeking access to the courts for divorces, making them practically unavailable for poor people.  Thus, the right of access for a divorce is encompassed within the liberty protected by the Due Process Clause of the 14th Amendment.

Furthermore, he argued, this case wasn’t about same-sex marriage.  “A divorce proceeding does not involve recognition of a marriage as an ongoing relationship,” he wrote.  “Indeed, accepting that a valid marriage exists plays no role except as a condition precedent to granting a divorce.  After the condition is met, the laws regarding divorce apply.  Laws regarding marriage play no role.”

Judge Edward C. LaRose also concurred, emphasizing that the state’s statutory marriage recognition ban would have “minimal application to a case involving a divorce of a same-sex couple validly married in another state.”  While mentioning the federal marriage equality developments in Florida, Judge LaRose did not rely on them to reach his conclusion.  But in noting the practical impact of the trial court’s order, he pointed out that 37 states and the District of Columbia now have same-sex marriage.  “Although divorce does not inevitably follow marriage,” he wrote, “we should anticipate that many married same-sex couples, unfortunately, will need to dissolve their unions.  It is hard to fathom that the legislators who passed [Florida’s recognition ban] envisioned a scenario where assets remain unmarketable for lack of an equitable distribution.  Nor could they have reasonably anticipated a system that disregards the best interests of a child raised and nurtured in a same-sex home.  There can be no question but that Florida has a compelling interest in protecting children subject to its jurisdiction.”

Surprisingly, the court never mentioned the federal Defense of Marriage Act (DOMA) in its opinion.  Although the Supreme Court declared part of DOMA unconstitutional in 2013, it left untouched Section 2, which provides that states are not required to give “full faith and credit” to same-sex marriages contracted in other states.  Thus, in DOMA Congress gave Florida permission to withhold recognition from same-sex marriages such as that of Danielle and Krista.  Although many commentators have suggested that Section 2 of DOMA is unconstitutional, most of the litigation about marriage recognition over the past two years has virtually ignored it, as did the Florida court in this case.

The second question certified for review by the Supreme Court when it decides the pending marriage equality cases, Obergefell v. Kashich, was whether states are constitutionally required to recognize same-sex marriages from other states.   In Thomas v. Thomas, the Florida 2nd District Court of Appeal has answered this question in the affirmative.

Attorneys Luis E. Insignares and Brian J. Kruger of Fort Myers represent Danielle and Michael E. Chionopoulos of Fort Myers represents Krista.  The case will be returned to the Lee County Circuit Court for a hearing on Danielle’s divorce petition.

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California Federal Court Orders Sex-Reassignment Surgery “As Promptly As Possible”

For only the second time, a federal district judge has ordered state prison officials to provide sex-reassignment surgery (SRS) to a transgender inmate.  On April 2, U.S. District Judge Jon S. Tigar in San Francisco issued a preliminary injunction in Norsworthy v. Beard, 2015 WL 1500971 (N.D. Cal.), ordering state officials to provide the procedure for Michelle-Lael Norsworthy “as promptly as possible” in light of her medical condition and the recommendations of expert witnesses.

The first such order, issued by the federal district court in Boston on behalf of Michelle Kosilek, a Massachusetts life inmate, was reversed by the U.S. Court of Appeals for the 1st Circuit.  Judge Tigar acknowledged that ruling, but pointed out that it was not binding on the federal court in California and that there were many distinctions between the cases.

California Attorney General  Kamala D. Harris filed a motion with Judge Tigar on April 10, requesting that the preliminary injunction be stayed “pending review by the Ninth Circuit Court of Appeals.”  She argued that providing SRS in response to a preliminary injunction was effectively awarding a decision on the merits to Norsworthy before the state had any opportunity to prove at trial that the procedure was not “medically necessary” and thus not required to be performed under the 8th Amendment.  Harris stressed that the 9th Circuit, whose rulings are binding on the federal courts in California, has never ruled on the question whether prison inmates are entitled to have SRS.

Named Jeffrey Norsworthy at birth, the plaintiff was convicted of murder in the second degree with the use of a firearm on April 15, 1987.  Norsworthy was sentenced to seventeen years to life in prison, and has been eligible for parole since March 28, 1998.  According to the complaint, Norsworthy experienced early confusion about her gender identity that continued into adulthood, but did not openly identify as a transgender woman until after her conviction and incarceration, in the mid-1990s.  She was diagnosed with gender dysphoria by a prison physician in January 2000.  She soon began hormone therapy under the supervision of another prison physician, Dr. Lori Kohler, as a result of which she has become a “biological female,” a “pleasant looking woman, slender and coiffed with a pony tail,” who “walks the yard as a woman,” according to deposition testimony.

Unlike transgender inmates in most other states, Norsworthy, who now identifies as Michelle-Lael despite the refusal of prison authorities to allow her to seek a legal change of name, has been allowed to keep her hair long, to shower in private, and to purchase and possess brassieres, and she is housed in a “sensitive needs yard,” albeit in an all-male prison.  However, prison officials often refer to her using her legal male name.

Norsworthy has suffered several rapes in prison, and as a result of one prolonged gang rape, has become infected with hepatitis C, which has damaged her liver and created complications with her hormone therapy.  At one time, the complications were severe enough to require cessation of hormone treatment, although it was resumed at a lower level.  Also, her allergic reaction to certain hormone treatments has exacerbated her health problems, and despite her ability to present as a woman, her gender dysphoria continues strongly.

She despaired of the possibility of obtaining SRS until she heard about Michelle Kosilek’s victory in the federal district court in Boston.  Within weeks of that ruling, Norsworthy had initiated her attempt to obtain SRS, even before obtaining her psychologist’s diagnosis of the treatment as medically necessary for her.  After her psychologist, Dr. Reese, made this diagnosis and persisted in it, prison officials removed Norsworthy from his caseload and assigned another psychologist who was not supportive of Norsworthy’s quest.  Norsworthy acquired endorsements of her need for the procedure from two more medical experts, who offered deposition testimony in her support.  Dr. Reese, unfortunately, seems to have resigned his position, and Harris’s motion claims that Reese has disappeared from view.

In any event, having been turned down at every step by prison officials, Norsworthy exhausted her administrative remedies and filed suit in 2014, following her complaint with a motion for immediate relief, arguing that SRS was medical necessary not just because of her gender dysphoria but also because of the complicated treatment situation due to her hepatitis.  SRS would remove the internal source of testosterone, lessening the need for estrogen treatment and relieving the pressure on her liver.

Norsworthy’s case ran up against the strongly worded deposition testimony of Dr. Stephen Levine, who was an expert witness in the Kosilek trial and who has a long history of involvement with the issue of gender dysphoria, having played a role in the history of development of the standards of care now endorsed by the mainstream medical community.  Dr. Levine affirms that SRS is always an “elective” procedure, that it should not be undertaken until the individual has lived in society in the desired gender for a year – an experience he asserts cannot be obtained in prison – and that asserting a female gender identity may be a male prisoner’s lifestyle adaption to prison that he would come to regret after being released to civilian life with the opportunity for female companionship.

Although California’s written prison policies do not categorically forbid the underlying medical procedures associated with SRS, Judge Tigar found that there is an understanding in the prison system that SRS is not available for purposes of treating gender dysphoria, and the procedure has never been provided to an inmate despite numerous requests.  Thus, in examining the internal appeals process, the judge found that Norsworthy’s attempt to obtain SRS was denied because of this categorical policy, not because of an individualized medical determination.

The court found Norsworthy’s experts convincing and the state’s experts unconvincing in reviewing their deposition testimony in support and opposition to the motion for preliminary injunction.  He was particularly scathing about Dr. Levine’s deposition.   “The Court gives very little weight to the opinions of Dr. Levine, whose report misrepresents the Standards of Care; overwhelmingly relies on generalizations about gender dysphoric prisoners, rather than an individualized assessment of Norsworthy; contains illogical inferences; and admittedly includes references to a fabricated anecdote,” he wrote.  “To the extent that Levine’s apparent opinion that no inmate should ever receive SRS predetermined his conclusion with respect to Norsworthy, his conclusions are unhelpful in assessing whether she has established a serious medical need for SRS.”

The “fabricated anecdote” refers to Levine’s deposition testimony about an inmate who received SRS with poor results.  Since the record shows that no inmate in California has ever received SRS while incarcerated, the anecdote was obviously fictional, and Tigar asserts that Levine had acknowledged as much.

Applying the standards for issuing a preliminary injunction, Judge Tigar found that Norsworthy had demonstrated a high likelihood of success on the merits of her claim that she suffered a serious medical condition and that SRS was a medically necessary treatment for that condition. Furthermore, a de facto policy of denying SRS to all transgender inmates, regardless of their individual need, demonstrated deliberate indifference, which would violate the 8th Amendment right against cruel or unusual punishment.  Tigar concluded that requiring Norsworthy to forego this treatment while the case went through discovery and a trial and the inevitable appeal, which could stretch out over years, would inflict irreparable harm on the plaintiff because of the severe emotional pain and risks to her health shown on the record before the court.

Furthermore, he found that the equities on this motion tip “heavily” in Norsworthy’s favor.  “The Court takes seriously Defendants’ concern that a preliminary injunction providing SRS potentially deprives them of appellate review,” he wrote.  “However, Norsworthy has established that she is likely to succeed on the merits of her claims and that she is suffering from irreparable injury as a result of the deprivation of her Eighth Amendment rights.”   He concluded, as to the last part of the preliminary injunction test, that “there is no public interest in Norsworthy’s continued suffering during the pendency of this litigation.”

Judge Tigar noted that Norsworthy had also asserted an equal protection claim under the 14th Amendment, but in light of his resolution of the preliminary injunction motion on 8th Amendment grounds, there was no need to address the equal protection argument at this point in the case.

Judge Tigar’s opinion aroused immediate media and political controversy in California, with mounting pressure on Attorney General Harris to seek a delay of the SRS while pursuing an appeal.  Procedural rules required her to file her motion for a stay first with Judge Tigar.  He seemed to anticipate the arguments she would make in his decision, and if he denies the stay she would immediately seek relief from the 9th Circuit.

Her motion points out, among other things, that SRS involves an array of surgical and medical procedures that must be tailored to the needs of individual patients.  A generalized order to make SRS available “as promptly as possible” would present significant enforcement issues, not least as to the specific procedures that would be required to comply with the court’s order.  “The Court’s order permits an inmate to obtain any number of these procedures based solely on the assertion that the inmate has gender dysphoria and that the preferred surgery is necessary for the inmate to fully express their identified gender,” she argued.  This vastly oversimplified the argument of the plaintiff and the findings of the court.

The position of the state on this motion may be best summarized by the title of one section of their memorandum in support of the motion: “Sex-Reassignment Surgery Can Wait Because the Constant Care Norsworthy Receives From the Medical Department Minimizes the Risk of Any Substantial Threat to Her Health.”  Harris argues that Norsworthy has been incarcerated and living with gender dysphoria for almost two decades, and has not demonstrated that any recent development has suddenly made it urgent that she receive SRS.  Her lawsuit was filed promptly in reaction to the Kosilek ruling in Massachusetts, not as a result of some sudden medical emergency. Judge Tigar found the contrary, focusing on the deposition testimony of Norsworthy’s experts who opined that she urgently needed the procedures and had delayed seeking them only out of a sense of futility.

Norsworthy is represented by a team of lawyers from the San Francisco office of Morgan Lewis & Bockius LLP – Herman Joseph Hoying, Christopher J. Banks, Ian Thompson Long, and Megan Dy Lin —  as well as Oakland attorneys Ilona Margaret Turner, Jennifer Orthwein, and Shawn Thomas Meerkamper.

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Transgender Student Loses Fight Over Expulsion from UPJ

The federal court  for the Western District of Pennsylvania rejected a discrimination lawsuit by a transgender man who was expelled from the University of Pittsburgh at Johnstown in January 2012 for insisting on using men’s restroom and locker room facilities.  Just one day before the federal Equal Employment Opportunity Commission ruled that the Army had unlawfully discriminated against a transgender woman by denying her the right to use women’s facilities, U.S. District Judge Kim R. Gibson reached an opposite conclusion in his March 31 decision, finding that transgender legal precedents under Title VII of the Civil Rights Act did not apply to this lawsuit, which was brought under Title IX of the Higher Education Act and the Equal Protection Clause of the 14th Amendment of the U.S. Constitution.

The plaintiff, Seamus Johnston, was identified female at birth but by age nine had begun to self-identify as a boy, coming out to his parents.  He began living in accordance with his male gender identity beginning in May 2009, and a year later obtained counseling, being diagnosed by a psychotherapist as having a gender identity disorder.  A year later, he began hormone treatments.  In 2009 Johnston began the process of amending identification documents to reflect his male identity, and he obtained a common law name change in 2010.  His driver’s license was changed to his new name and gender identification in 2011, and he registered with the Selective Service system as a man in July 2011.  His amended passport was issued in February 2012, and he amended the gender marker in his Social Security records in November 2013.  However, he did not obtain a new birth certificate.

When he applied to the University of Pittsburgh at Johnstown (UPJ) in March 2009, he listed “female” on his application form, as he had not yet been diagnosed or begun hormone treatments.  He attended UPJ as an undergraduate for five semesters until his expulsion.  Although he had applied as female, upon arrival for his first semester in August 2009 he “consistently lived as a male,” he alleged in his lawsuit.  In August 2011, after his sophomore year, he asked the school to change the gender marker in his school records.  This request was not acted upon because he could not meet the school’s requirement that he present a birth certificate in his legal name identifying him as male.  The court’s opinion does not specify where he was born, but it seems likely that it was in a jurisdiction that won’t issue a new birth certificate without evidence of sex reassignment surgery, and Johnston had apparently not undergone that procedure.  He did present the school with a notarized affidavit about his name change, which led UPJ to change the name on his student records in the fall of 2011.

Johnston consistently used the men’s restrooms on campus.  Since he was living as a man, to do otherwise would be to risk a disorderly conduct arrest.  What he didn’t anticipate, however, was that he would be arrested for using the men’s restrooms.  What seems to have triggered this development was his enrollment in a men’s weight training class, attended only by men, and his use of the men’s locker room throughout the spring 2011 semester.  This came to the attention of the administration, and he was summoned to a meeting on September 19, 2011, after he enrolled in the class again for the fall semester.  He was told he could no longer use the men’s locker room.  He agreed to use a unisex locker room in the Sports Center, and was told that he could resume using the men’s locker room if his student records were “updated from female to male.”  For that, however, he would have to get either a court order or a changed birth certificate.

Johnston filed a complaint with UPJ’s president, whose response was the same: get a court order or a new birth certificate.  Doing neither, Johnston resumed using the men’s restroom, and was arrested by campus police.  He was barred from the Sports Center, and disciplinary charges were brought against him.  But he persisted in using the men’s restroom, and was ultimately barred from campus, suspended, and expelled in a proceeding culminating in a hearing before a student disciplinary panel.  A University Appeals Board ruled against him.  He lost his scholarship, and the Campus Police pressed criminal charges, leading to a guilty plea on trespass and disorderly conduct charges.  After he was expelled, he claims the University retaliated against him by giving his name to the FBI in connection with an investigation of a bombing threat received by the University.

He filed a federal lawsuit representing himself, alleging violations of the Equal Protection Clause of the 14th Amendment and Title IX of the Higher Education Act as well as various state laws.  Pennsylvania state law does not prohibit discrimination because of gender identity, so his state law claims also asserted sex discrimination.  The Equal Protection Clause has been interpreted by the 11th Circuit Court of Appeals to prohibit gender identity discrimination by a public employer.   Title IX bans sex discrimination by colleges and universities that receive federal funding.

Johnston sought to build on a growing body of court and administrative decisions in other parts of the country recognizing gender identity discrimination as a form of sex discrimination.  Most of those decisions are relatively recent, and as noted above, an important recent breakthrough decision by the EEOC on the restroom access issue was  issued the day after Judge Gibson ruled against Johnston in this case.

Unfortunately for Johnston, the Supreme Court has yet to rule on a gender identity discrimination claim, and neither has the U.S. Court of Appeals for the 3rd Circuit, whose rulings bind the federal courts in Pennsylvania.  Thus, Judge Gibson was facing a question of first impression in terms of binding precedent, and he resolved the question against Johnston.

“At the outset,” wrote Gibson, “the Court notes that society’s view of gender, gender identity, sex, and sexual orientation has significantly evolved in recent years.  Likewise, the Court is mindful that the legal landscape is transforming as it relates to gender identity, sexual orientation, and similar issues, especially in the context of providing expanded legal rights.  Within the context of these expanding rights and protections arise the profound question of self-identity, as exemplified by this case.  But, while this case arises out of a climate of changing legal and social perceptions related to sex and gender, the question presented is relatively narrow and the applicable legal principles are well-settled.”

Finding that the University had a legitimate interest in protecting the “privacy” of other students who did not want to share sex-segregated restroom and locker room facilities with persons of the other sex, Gibson concluded that, whether ruling under the Equal Protection Clause or Title IX, the University had a sufficient justification for excluding Johnston from facilities reserved for men.  His conclusion was bolstered by 3rd Circuit rulings from early in the history of Title IX upholding sex-segregated educational facilities, and he emphasized Johnston’s failure to allege that he had completed sex-reassignment surgery or obtained a new birth certificate indicating his sex as male.  Clearly, the University had stated that it would allow Johnston to use male facilities if he met the University’s requirement of a completed surgical gender transition with such documentation.

While acknowledging the growing body of lower federal court rulings in employment discrimination cases, Gibson insisted that employment rights were different from the issues raised in this case of access to educational facilities, where the University could be legitimately concerned about the safety and privacy interests of other students.  UPJ allowed Johnston to attend classes and use campus facilities for more than two years presenting himself as male, even though he applied as female.  It was when Johnston pushed things forward by enrolling in the men’s weight training class and using the men’s locker room that alarm bells went off about the privacy interests of other students, and he was not barred from participating in that class during the Fall 2011 semester, just from using men’s facilities, with the compromise offer of a gender-neutral restroom that was usually used by referees.

Having decided there was no federal claim in the case, Judge Gibson exercised his discretion to refuse to entertain Johnston’s state law claims.

The retaliation claim failed upon Gibson’s conclusion that Johnston’s sex discrimination claims were not viable.

Gibson’s reasoning and conclusions were contradicted the next day by the EEOC’s ruling in Tamara Lusardi’s case against the Army.  The EEOC concluded that under Title VII, a person identified as male at birth who was diagnosed with gender identity disorder, undertook transitional treatment (hormones), and was presenting as a woman with a legal name change, was entitled to be treated as a woman with access to women’s facilities, regardless whether she submitted to surgical procedures.  The EEOC said that it was not up to the employer to impose its own surgical requirement in order to recognize a person’s desired gender identity.   While Judge Gibson emphasized the privacy interests of students and the University’s overriding concern with the well-being of students, one could advance similar arguments in an employment setting.  In fact, the Army argued in Lusardi’s case that restricting her from using the women’s restroom was largely motivated by concern over the privacy interests of female co-workers.

In both cases, the defendant had offered a gender-neutral restroom facility for the plaintiff’s use.  The EEOC said the Army’s insistence on this was unlawful sex discrimination, but Judge Gibson concluded the opposite.    This tension in the interpretation of laws or constitutional provisions dealing with sex discrimination in gender identity cases awaits resolution at a higher level, either by the Supreme Court or by enactment of a broad non-discrimination law by Congress that includes gender identity.  Neither resolution seems imminent, as the state of Georgia did not seek Supreme Court review of the 11th Circuit case, and there seems little interest in Congress in amending federal sex discrimination laws to encompass gender identity.  Passage of the Employment Non-Discrimination Act would solidify Lusardi’s victory at the EEOC, but would do nothing to affect Johnston’s case, which requires an amendment to Title IX.  The EEOC has undertaken a litigation effort to establish appellate precedents in more circuits finding that gender identity discrimination is sex discrimination, perhaps culminating in a Supreme Court ruling, but a final resolution along those lines is probably years off.  Of course, Johnston might try to appeal to the 3rd Circuit, but that court has not taken a particularly expansive view of the sex discrimination provisions in Title IX.

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EEOC Rules on Transgender Employee Restroom Rights

The Equal Employment Opportunity Commission (EEOC), the agency charged with enforcement of federal bans on sex discrimination in employment, has ruled that a transgender woman employed in a civilian position by the U.S. Department of the Army, is entitled to use restroom facilities consistent with her gender identity, despite the agency’s objection to providing such access before the individual has undergone sex-reassignment surgery.  Although the EEOC had previously ruled that refusal to employ somebody because of their gender identity was a form of sex discrimination in violation of federal law, this was its first pronouncement on one of the great looming issues in transgender workplace rights: restroom access.

The case is Lusardi v. McHugh, the complainant being Tamara Lusardi and the named defendant being Secretary of the Army John M. McHugh.  The EEOC designates this as Appeal No. 0120133395.

Lusardi was hired as a male-identified person in 2004, as a civilian employee with the U.S. Army Aviation and Missile Research Development and Engineering Center in Huntsville, Alabama.  The case decided by the EEOC relates to events from October 2010 through August 2011 when she was assigned to the AMRDEC Software Engineering Directorate, and was also doing work at the Project Management office, Aircraft Survivability Equipment, as a Software Quality Assurance Lead.

As early as 2007 she had begun to discuss her gender identity issues with the Division Chief, and she began the actual transitioning process in 2010, obtaining a legal name change from an Alabama court in April of that year from a male-identified first-name to her desired name of Tamara.  She requested that the name be changed in Department records, which was effected on October 13, 2010.  Two weeks later, at the request of the supervisor on the Aircraft Survivability Equipment job, she met with that supervisor and the Division Chief to discuss the process of transitioning to presenting herself in conformance with her gender identity, and the issue of how she would relate to co-workers came up, particularly regarding restroom use once she began presenting as a woman.  An agreement of sorts was reached, and memorialized in writing, that she would use a single-user restroom, referred to as the “executive restroom,” until she had undergone sex reassignment surgery.

She generally adhered to that agreement, but there were a few occasions when that restroom was unavailable or out of order, so she used the restroom designated for women, which brought forth objections from the supervisor and it turned into an issue.  There was also a problem of harassment, derived from another supervisor’s  apparent difficulty in accommodating to Lusardi’s gender identity.  This supervisor persisted in referring to Lusari with masculine pronouns or calling her “sir,” using her former first name, and “smirking” and “giggling” in front of others while stating “What is this, [Complainant’s former male name] or Tamara”?

Lusardi initially spoke with an EEO counselor about these issues in September 2011, and filed a formal complaint of disparate treatment and hostile environment with the agency’s EEO office on March 14, 2012.  A final agency decision was issued on September 5, 2013, concluding that she had failed to show a violation of the applicable ban on sex discrimination.  She appealed this ruling to the EEOC a few weeks later.  She also filed a complaint with the Office of Special Counsel, which is charged with ruling on internal executive branch personnel matters.  That office found that the restroom access denial was improper, in a report that ordered training for Army Department staffers but awarded no remedy to Lusardi.

Reversing the Army Department’s decision, the EEOC found that the disparate treatment in restroom access was a direct violation of the ban on sex discrimination.  Following up on the logical implications of its prior decision, it held that a transgender woman who is presenting as a woman is entitled to be treated by her employer as a woman.  This includes access to women’s facilities, regardless whether the individual has had surgery.  “This case represents well the peril of conditioning access to facilities on any medical procedure,” wrote the Commission.  “Nothing in Title VII makes any medical procedure a prerequisite for equal opportunity (for transgender individuals or anyone else).  An agency may not condition access to facilities — or to other terms, conditions, or privileges of employment — on the completion of certain medical steps that the agency itself has unilaterally determined will somehow prove the bona fides of the individual’s gender identity.”

The EEOC also rejected the agency’s findings on the harassment claim, concluding that the insults to Lusardi were intentional, and ordered the agency to take concrete steps to educate its employees and supervisors on their non-discrimination obligations. The EEOC also ordered the agency to undertake a fact-finding investigation to determine compensatory damages for Lusardi in connection with the findings of sex discrimination and hostile environment.

It will be interesting to see whether the federal courts will fall in line with this ruling, which contradicts older court opinions.

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American Symphony Orchestra Examines Obscure Works of Major Composers

Last night at Carnegie Hall, the American Symphony Orchestra presented “Opus Posthumous,” a concert devoted to works that were not first performed until after the deaths of their composers. These included an opera overture by Franz Schubert to an opera never published or performed in his lifetime, Anton Bruckner’s Symphony No. 00 (a study symphony he composed but did not consider suitable for performance), and Antonin Dvorak’s Symphony No. 1, which was composed for entry into a composition contest. Dvorak sent his only copy of the handwritten manuscript, which was never returned to him, and the work was long thought lost, only to show up years later in a bookstore where it was purchased by somebody who shared the composer’s surname but was not a relative. The piece was first performed long after the composer’s death, and then in an abridged version.

This was a very pleasant concert of 19th century romantic music, but none of the works is an imperishable masterpiece. Indeed, my opinion after the concert was that Dvorak was lucky the piece was not played when it was written, because it could have impeded his career.  The orchestration is amateurish in places, creating a heavy and clotted effect, and the development of the themes is unduly repetitious.  Some good ideas are just buried under clumsy orchestration, unfortunately. 

Dvorak and Bruckner were late bloomers as mature symphonists.  Dvorak wrote nine symphonies, but published only the last five, and until mid-20th century, most music lovers would say their favorite was Dvorak’s Symphony No. 5, the “New World Symphony.”  By the time I was learning about classical music in the 1960s, it was usually identified as Symphony No. 9 (old “No. 5″), as by then the earlier unpublished symphonies had been edited and published in a complete edition of Dvorak’s music.  But the first four symphonies are rarely performed, as he really didn’t hit his stride until “old No. 1,” which is now known as Symphony No. 6.  Old No. 2 became Symphony No. 7, Old No. 3 became Symphony No. 5, and Old No. 4 became Symphony No. 8.  This is all ancient history for the generation of classical music lovers following me.  With Bruckner, there is last night’s Symphony No. 00, then his first published Symphony, No. 1, then Symphony No. 0 which comes before Symphony No. 2.  Bruckner was very self-critical and withheld pieces from publication if they didn’t meet his high standards.  Bruckner’s situation is complicated by his tendency to revise, abetted by some of his younger supporters who thought his music would be more readily accepted if he would just shorten things!  So there are multiple versions of most of the published symphonies, including so many versions of Symphony No. 3 and Symphony No. 4 (two completely different versions of one of the movements are floating about) that one can easily lose count.

Last night’s Bruckner was a pleasant student work that shows few signs of the mature composer.  Indeed, it sounded much like the Schubert overture that came before it on the program.

There’s nothing seriously wrong with any of these pieces, but none of them stand to become part of the standard orchestral repertory, as they are put in the shade by other works of the composers. The ASO played them all very well under Leon Botstein’s direction, as members of the audience had a rare opportunity to hear works by major composers that they are not likely to get to hear in live performance ever again! This is central to the ASO’s mission under Botstein’s leadership.  To cast light in dark corners….

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Federal Court Orders Stay of New Family & Medical Leave Act Regulation

U.S. District Judge Reed O’Connor, sitting in the U.S. District Court for the Northern District of Texas in Wichita Falls, issued an order on March 26 requiring the U.S. Department of Labor to stay the implementation of a new regulation that changes the definition of “spouse” under the federal Family and Medical Leave Act to include same-sex couple, wherever they reside, who were married in a jurisdiction that allows same-sex marriages. State of Texas v. United States of America, 2015 U.S. Dist. LEXIS 38264. Judge O’Connor’s order was part of a preliminary injunction awarded to the states of Texas, Arkansas, Louisiana and Nebraska, who joined together as co-plaintiffs in a case originally filed by Texas Attorney General Ken Paxton.

It was unclear from the court’s order whether the regulation was stayed in all of its applications, or just as applied to the state government acting as employers. It was also unclear whether it would apply just to the four co-plaintiff states, or to all states that do not presently recognize same-sex marriages.

The Family and Medical Leave Act, enacted during the Clinton Administration in 1993, requires employers with 50 or more employees to make unpaid leave available for certain purposes to full-time employees after they have completed a year of service. The FMLA also applies to state governments acting as employers.

Family leave could include time off to take care of a spouse or child with health problems. The statute defined “spouse” as “a husband or wife, as the case may be.” Regulations proposed by the Labor Department in 1993 provided that “spouse” means “a husband or wife as defined or recognized under state law for purposes of marriage in states where it is recognized.” In 1995, the Department published a “final rule” making clear that the law of the state where an employee resides would control for purposes of determining spousal status.

After the Supreme Court struck down Section 3 of the Defense of Marriage Act in 2013, the federal government came under the constitutional obligation to recognize legally-married same-sex couples. However, many states withhold such recognition, and the existing FMLA regulation would thus withhold the federal benefit entitlement from married same-sex couples living in states that did not recognize their marriages.

The Labor Department proposed to solve this problem by issuing a new regulation, changing the definition of “spouse” to include all legally-married same-sex couples, regardless where they live. The proposed regulation was published in the Federal Register, comments were received and studied, and a final rule was published in the Federal Register, to go into effect on March 27.

Texas Attorney General Paxton’s lawsuit claimed that the Labor Department could not change the definition of spouse for state government employers. For one thing, he argued, Section 2 of the Defense of Marriage Act, which the Supreme Court did not address in its DOMA decision, specifically provides that states are not required to recognize same-sex marriages performed in other states. For another, he argued, the Supreme Court’s ruling acknowledged that states are entitled to decide who can marry and whose marriages will be recognized within their borders. According to this reading of the case, U.S. v. Windsor, Section 3 of DOMA was unconstitutional because Congress does not have authority to withhold recognition for federal purposes of marriages that states allow and recognize. This is the view, argued by Chief Justice John Roberts in his concurring opinion, that Windsor is essentially a “federalism” case. It’s a view that Justice Anthony Kennedy specifically disclaimed in his opinion for the Court, however, and the question of how to characterize that decision is a topic of lively debate among legal scholars and lower court judges.

Paxton argued that the Labor Department can’t order Texas through a regulation to recognize marriages contrary to the Texas Constitution and statutes, especially when that regulation conflicts with Texas’s right, under Section 2 of DOMA, to refuse to recognize the marriages.

Although there is a respectable body of scholarly opinion that Section 2 of DOMA is unconstitutional, and many federal courts, including four circuit courts of appeals, have ruled that states are required to recognize legally contracted same-sex marriages, the Supreme Court will not speak on the merits of these issues until it rules in Obergefell v. Hodges, most likely in June after the April 28 oral argument in Washington.

Until then, Judge O’Connor pointed out, the district court is bound by existing precedents in the 5th Circuit. Although a panel of the 5th Circuit heard arguments in several marriage equality appeals early in January, it has yet to issue a decision. Since prior 5th Circuit precedents mandate that trial judges in the circuit use the most deferential standard of judicial review when considering laws that discriminate because of sexual orientation, and Section 2 of DOMA is still in effect, Judge O’Connor concluded that a state government employer cannot be compelled by a federal regulation to recognize same-sex marriages performed in other states.

This is only a preliminary injunction, and Judge O’Connor cautioned that upon a full consideration of the merits there might a different conclusion, especially if that takes place after either the 5th Circuit or the Supreme Court rules on pending marriage equality cases. So this stay may turn out to be a temporary road-bump on the path to equal treatment for married same-sex couples living in states that don’t recognize their marriages.

Although Judge O’Connor’s legal analysis concluded that the Labor Department could not by regulation order states to recognize same-sex marriages, his stay was phrased in more general terms: “The Department of Labor must stay the application of the Final Rule, pending a full determination of this matter on the merits.” This might just mean that for now the rule does not apply to government workplaces in Texas and the other plaintiff states, but can go into effect for other workplaces. That’s what it should mean to be consistent with the court’s reasoning. The test will come when a private sector employee in Texas requests FMLA leave to care for a same-sex spouse, is turned down, and seeks vindication in the courts. But the entire problem may disappear when the Supreme Court rules in June.

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Missouri Appeals Court Frees Gay Man from Sex Offender Registration Requirement

In 1988 Jerome Keeney, Jr., was arrested in a typical sting operation by a St. Louis County vice cop, and pled guilty in 1989 to the charge of attempted “sexual misconduct.”   His crime?  Groping an undercover police officer who specifically sat with him in his parked car at a highway rest stop and chatted him up seeking to provoke such a move.  The St. Louis County Circuit Court imposed a suspended sentence (no jail time) and two years’ probation.  So he thought that was the end of it.

Flash forward to January 8, 2010, when Keeney was instructed to file a registration with the Missouri Sex Offender Registry on account of that 21-year-old guilty plea.  Outrageous, especially considering that the offense to which he pled guilty was no longer a crime.  He had been charged with attempting to violate the Missouri sodomy law, which became unenforceable due to the U.S. Supreme Court’s 2003 decision in Lawrence v. Texas, and which was subsequently repealed by the Missouri legislature.

So Keeney protested and filed a Petition with the St. Louis County Circuit Court, arguing that he should not be required to register.  The trial judge, Robert S. Cohen, ruled against him, holding that his conduct in 1988 was not innocent at the time, that it was “in public” and so not constitutionally protected because Lawrence v. Texas only protected consenting sexual conduct in “the home,” and that it was not consensual.  Indeed, the state produced an affidavit from the plainclothes police officer, sworn to in 2014, claiming that it was not consensual.  Keeney had leaned over and groped him, said the officer, without his permission.

Keeney appealed, and the Missouri Eastern District Court of Appeals ruled in his favor on March 24 in Keeney v. Fitch, 2015 Mo. App. LEXIS 307.  A unanimous three-judge panel ruled that Keeney should not be required to register.

Writing for the court, Judge Sherri B. Sullivan filled in the history.  In 2006, Congress passed a law instructing states to set up sex offender registration systems and require previously convicted sex offenders to register.  The definition of a “sex offender” in the federal statute is “an individual who was convicted of a sex offense,” which includes “a criminal offense that has an element involving a sexual act or sexual contact with another” and “an attempt or conspiracy to commit” that sexual act or contact.  The federal law specifically applies to convictions under state sex crimes laws.

Missouri had enacted its own registration law back in 1994, which was amended in 2006 to provide that anybody required to register as a sex offender under federal law was also required to register under the state law.

Keeney had pleaded guilty to a charge of attempting to violate a Missouri law that provided that “a person commits the crime of sexual misconduct if he has deviate sexual intercourse with another person of the same sex.”  The charge was that his groping of the vice cop was a prelude to oral or anal sex that would violate the statute.  But, Judge Sullivan pointed out, this Missouri law was “in all relevant respects identical” to the Texas law struck down in the 2003 Supreme Court decision.

The Missouri legislature had amended the law several times after Keeney’s arrest, but the most significant amendment, in 2006, removed the reference to “deviate sexual intercourse with another person of the same sex.”  As of 2006, the statute defines “sexual misconduct” to include when a “person purposely subjects another person to sexual contact without that person’s consent.”  This explains why the state, in opposing Keeney’s new lawsuit, produced an affidavit from the vice cop claiming the he had not consented to be groped by Keeney.

Missouri’s old sodomy law had been challenged in state court, but the challenge was rejected in 1986, two years before Keeney’s arrest.  In 2013, in a dissenting opinion in the Missouri Supreme Court, several justices commented that the 1986 decision was “no longer viable in light of  Lawrence v. Texas.”

“Homosexual deviate sexual intercourse is no longer a sexual offense in Missouri,” wrote Judge Sullivan.  “A such, there is no logical existent reason to require Appellant to register on the sexual offender registry.”  Although there is no procedure available for Keeney to get the court to vacate his 1989 guilty plea, he can sue to get a declaration that he does not have to register as a sex offender, contrary to what Judge Cohen had ruled in rejecting his case.

The court rejected the state’s attempt to try to expand upon the 1988 charges in order to label Keeney’s conduct as still unprotected by Lawrence v. Texas because it was not “consensual” and took place “in public.”  He was charged with attempting to violate the sodomy law, Sullivan pointed out.  “From the defendant’s perspective,” she wrote, “for his guilty plea to be a voluntary and intelligent admission that he committed the offense leveled against him by the prosecutor, the defendant must receive real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process.  The prosecutor’s choice in charging Appellant in 1988 cannot be revisited or revised today.  Appellant’s plea is now a part of history.  Additionally, it nearly goes without saying that Respondents also cannot bring forward newly manufactured evidence, i.e., Detective Bayes’s 2014 affidavit, to support a new theory of Appellant’s culpability.”

Besides, Sullivan pointed out, Detective Bayes specifically went to that location to attract solicitations from gay men, since his goal was to “rid the area of homosexual behavior.”  Getting somebody to grope him so he could make an arrest “would be considered a success by Detective Bayes” given his mission.  “To characterize himself today as a victim of unwanted sexual touching by Appellant that night is incongruous.”

The court raised the same objection to the state’s attempt to introduce the “public sex” issue, since once again that was not a focus of the 1988 charges against Keeney.  Since the state did not charge him “with a crime with a public aspect to it” at that time, that was no longer relevant to whether he should have to register based on that guilty plea.

The court concluded that Judge Cohen erred in not granting Keeney’s motion for summary judgment, reversed Cohen’s judgment, ordered Cohen to grant Keeney the declaratory judgment he sought, and ordered the state officials to “remove Appellant’s name and all other registration information from the Missouri Sex Offender Registry.”

Keeney was represented by St. Louis Attorney Michael T. George.  The court noted that its decision is not final until expiration of the time in which the state can file a motion for rehearing, most likely a mere formality.

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Puerto Rico Urges Reversal of Anti-Marriage Equality Ruling

In an unusual turnabout, the Commonwealth of Puerto Rico, respondent in Lambda Legal’s appeal of the anti-marriage equality ruling in Conde-Vidal v. Garcia-Padilla, 2014 WL 5361987 (D. P.R., Oct. 21, 2014), is urging the 1st Circuit Court of Appeals to reverse the district court’s ruling that dismissed the challenge to the Commonwealth’s ban on licensing or recognizing same-sex marriages.

Lambda Legal sued on behalf of several same-sex couples seeking either to marry in Puerto Rico or to have their marriages from other jurisdictions recognized there.  U.S. District Judge Juan M. Perez-Gimenez granted the government’s motion to dismiss the case, holding that the complaint did not state a claim because of the Supreme Court’s ruling in Baker v. Nelson, 409 U.S. 810 (1972), which reject an appeal from an adverse ruling by the Minnesota Supreme Court, that the issue of same-sex marriage did not present a “substantial federal question.”  Judge Perez-Gimenez found that the Supreme Court had never overruled this decision, and as a lower federal court judge he was bound by it, rejecting the argument that subsequent rulings by the Supreme Court had rendered Baker a nullity.  Nonetheless, he also proceeded to find that the state had a rational basis to distinguish between same-sex and different-sex couples, relying on arguments that have been repeatedly rejected by several dozen other federal courts (including four circuit courts of appeal) over the past two years.  Plaintiffs appealed to the 1st Circuit, and Puerto Rico’s responsive brief was due to be filed on March 20.

The brief filed over the names of Solicitor General Margarita Mercado-Echegaray and Assistant Solicitor General Andres Gonzalez-Berdecia observed that the Supreme Court’s decision in January to grant petitions for certiorari seeking review of the 6th Circuit’s decision in DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014), as well as the Supreme Court’s refusal to stay marriage equality rulings in response to every stay petition filed since October 6, 2014 (including a stay petition filed by Alabama after the Court had granted the cert. petition), meant that clearly Baker v. Nelson was no longer controlling on the district court.  If same-sex marriage does not present a substantial federal question, then the Court would not have granted cert. to review the 6th Circuit’s decision, which was premised in part on Michigan’s contention that Baker v. Nelson bound the lower federal courts to deny marriage equality claims.  Although Puerto Rico had won its motion to dismiss by advancing Baker v. Nelson as a determinative precedent, that argument is no longer available before the 1st Circuit in light of these subsequent developments.

Furthermore, wrote Puerto Rico’s lawyers, they agree with the plaintiffs’ contention that denying the right to marriage to same-sex couples implicates a fundamental right.  If it is open to the court to proceed to the merits, then some form of heightened or even strict scrutiny would apply.  Although an equal protection claim in the 1st Circuit was accorded only rational basis review in that circuit’s pre-Windsor cases, it was possible that heightened scrutiny might be applied to such a claim as well.  Under either theory, the lawyers conceded, the ban on same-sex marriage was no longer defensible.

“It is not usual for the Executive Branch of the Commonwealth of Puerto Rico to refuse to defend the constitutionality of legally-enacted statues,” they wrote.  “It is even less usual to adopt a somewhat different position at the appellate level than the one espoused before the lower court.  But this is not a usual case and neither the law nor common sense requires us to treat it as such.  In a constitutional democracy there are some rights that have been reserved to the People directly and which no government may infringe, regardless of individual or personal views on the matter. ‘Our obligation [like this Court’s] is to define the liberty of all, not to mandate our own moral code.’ Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 850 (1992).  Article 68 of the Civil Code of Puerto Rico excludes LGBT couples from the legal entitlements and rights attendant to civil marriage.  Thus, the Commonwealth of Puerto Rico acknowledges that the statute in controversy raises substantial constitutional questions anent the constitutional guarantees of equal protection of the laws and substantive due process.”

They continued: “Because Puerto Rico’s marriage ban impermissibly burdens Plaintiffs’ right to the equal protection of the laws and the fundamental right to marry, we have decided to cease defending its constitutionality based on an independent assessment about its validity under the current state of the law. . .  If History has taught us anything, it is that ‘times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress.  As the Constitution endures, persons in every generation can invokes its principles in their own search for greater freedom.’  Lawrence, 579 U.S. at 579.  This case represents but another attempt from a politically disadvantaged group of our society to be included within the full scope of the legal and constitutional protections that most of us take for granted.  Plaintiffs seek no preferential treatment; only equality.  The Executive Branch of the Commonwealth recognizes the LGBT community’s right to equality under the law.”

It is unclear from the brief whether the government is asking the 1st Circuit to issue a final ruling on the merits, or merely to reverse the motion to dismiss and remand the case for further proceedings in the district court.  However, if the 1st Circuit were just to reverse the dismissal order, it is likely that the Supreme Court will have issued its ruling, anticipated to come by the end of June, before the district court would get around to issuing a ruling on a subsequent motion for summary judgment by the plaintiffs.  In any event, if the appeal before them is unopposed, it might be appropriate for the 1st Circuit to dispense with oral argument, reverse the district court without an opinion, and remand the matter to the district court for further proceedings.

In the meantime, however, it was clear that there was not unanimous support in Puerto Rico for the government’s action, as some local legislators called for action to defend the statutory marriage ban before the 1st Circuit.  Although the defendants-appellees will not defend the statute, it is possible that the legislature will authorize some kind of attempted intervention to present a defense.  It seems clear that relying on Baker v. Nelson is no longer viable; even Supreme Court Justice Clarence Thomas, no supporter of same-sex marriage, opined in his dissent from the denial of a stay in the Alabama case that the topic presents an important constitutional question, so the dismissive 1972 statement no longer applies.  But the never-say-die opponents of marriage equality continue to insist, as the 6th Circuit majority held, that the question of “defining” marriage should be left to the political process, and that an institution whose heterosexual definition dates back millennia cannot have suddenly become unconstitutional, and they will undoubtedly attempt to put such arguments before the 1st Circuit – even though that Circuit has essentially rejected them in its ruling striking down Section 3 of DOMA, Commonwealth of Massachusetts v. U.S. Dep’t of Health & Human Services, 682 F.3d 1 (1st Cir. 2012), cert. denied, 133 S. Ct. 2884, 133 S. Ct. 2887 (June 27, 2013).

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A Triumphant Weekend at Peoples’ Symphony Concerts – Johannes Quartet & ECCO

This weekend Peoples’ Symphony Concerts in New York presented two excellent concerts.  In the Arens Series at Washington Irving High School, we heard the Johannes String Quartet, joined with guests from the Guarneri String Quartet, violist John Dalley and cellist Peter Wiley.  In the Festival Series at Town Hall, we heard the East Coast Chamber Orchestra.  Each concert include one unusual “modern” work, although these were not necessarily the real highlights of the programs.

The Johannes Quartet is one of many fine chamber groups that have grown out of acquaintances formed at the Marlboro Music Festival, a summer program that brings together the most talented young musicians with a group of experienced professionals to study and play together.  I’ve heard them before at Peoples’ Symphony Concerts, and was eagerly anticipating this program.

They led off with “Homunculus for String Quartet” by Esa-Pekka Salonen, who is being heavily promoted these days by the music critics of the New York Times as a logical successor to Alan Gilbert as music director of the NY Philharmonic.  I was present decades ago at Mr. Salonen’s debut with the Philharmonic, and remember going to the green room to congratulate him at that time.  He subsequently became music director of the Los Angeles Philharmonic, while retaining important ties with orchestras in Europe.  He stepped down from the L.A. position after a long and successful run, commenting that he wanted to spend much more time composing.  This piece was one of the first fruits of his stepped-up compositional activity.  We had a special treat last night at Peoples’ Symphony because Salonen was present to speak about his piece prior to the performance.  He explained that the short duration was in response to the particular demands of the commission — to produce a short piece that would balance out a program of two full string quartets — so he wrote a quartet in miniature and named it “Homunculus” inspired by the primitive theory of human reproduction that posited the notion that each sperm is actually a tiny person waiting to be incubated.  He pointed out the reduction ad absurdum consequences of such a theory, which brought quite a laugh from the audience.  The piece turned out to be very listener-friendly — even more so than his large-scale orchestral works, which tend to be more busy and dissonant than this quartet.  I would not venture to say much more about it after a first hearing, other than that it certainly left me with the desire to hear it again and get better acquainted.

The first half was concluded with Felix Mendelssohn’s String Quartet No. 6, Op. 80, a work written by the composer in the last year of his life – 1847.  But that does not mean it is a “late work,” because unfortunately Mendelssohn died in his mid-30s.   As with Mozart, there is really no “late” period for this composer, alas.  The quartet begins in a vigorous manner, somewhat like the Salonen piece, making it a logical progression, and the Johannes gave it an excellent performance.

But the real treat for me was to hear a rare live performance after intermission of Johannes Brahms’s String Sextet No. 2, Op. 36, with Dalley and Wiley joining the group.  Because of the need for extra players, it is unusual to hear the Brahms sextets in concert.  They are extraordinary pieces, so hearing this is a real event.  Indeed, the piece has a symphonic feel, which was well projected by the ensemble last night.

PSC’s winning streak continued with ECCO this afternoon.  This is a conductorless ensemble of 18 string players who come together several times a year to work up programs for their own pleasure in creative interaction.  Many of them are parts of the string sections of major symphony orchestras or established chamber ensembles, but they enjoy the special freedom of tackling larger scale string orchestra works in chamber music style.  The results are very impressive.

They began with an early work of Osvaldo Golijov, “Last Round” from 1996, a piece that put me in mind at times of Astor Piazzolla.  They played it with lots of energy and polish.  This was followed by a tender Canzonetta for strings by Jean Sibelius, and an inflation to string orchestra size of Leos Janacek’s “Kreutzer Sonata” String Quartet.  I have to confess to a blind spot with Janacek:  although I like the sound of his music, I usually find my mind drifting off during it.  So I don’t have a strong recollection of this performance.

But after intermission came the real treat:  the piece that is the trademark of this group, Tchaikovsky’s Serenade for String Orchestra, Op. 48.  I’ve heard them play it before, and have their recording, but each time I hear them it is different and better than the previous performance.  This performance was truly magnificent.  The combination of precision, vigor, and spontaneity, was entrancing.  The third movement Elegy held the audience breathless.  While listening, I thought — just as I had each previous time — that this must be one of the greatest pieces ever written.  And that is surely the result of a superior performance as well as the genius of Tchaikovsky!

I hope they will continue to seek out new repertory, will continue to develop their extraordinary interpretation of the Tchaikovsky, and will return to PSC.   I would love to hear them play Kilar’s Orawa, as it would be a perfect showpiece for them!




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