New York Law School

Art Leonard Observations

Vermont Supreme Court Finds Civil Union Dissolution Statute Still Relevant After Obergefell

 

Responding to the difficulties encountered by same-sex couples who entered into Vermont civil unions (and, beginning in 2009, same-sex marriages) and then lived in other states where their legal unions were denied recognition for purposes of dissolution or divorce, Vermont amended its divorce and annulment law in 2012 to provide that couples legally united in Vermont and living elsewhere who sought to dissolve their unions but had no vehicle to do that in the courts of their domiciliary state could obtain a dissolution in Vermont without meeting any residency requirement there. (Traditionally, states have required that at least one spouse be a resident of the state in order to seek a divorce in its courts.)  In Solomon v. Guidry, 2016 VT 108, 2016 Vt. LEXIS 111, 2016 WL 5338492 (September 23, 2016), the court unanimously ruled that this law remains relevant, even though the result of Obergefell v. Hodges is that all states must recognize legally contracted same-sex marriages, because there is still no uniformity about interstate recognition of civil unions.

Melissa Solomon and Jane Guidry entered into a civil union on July 24, 2001, in Brattleboro, Vermont, shortly after Vermont became the first state in the nation to provide civil unions for same-sex couples. They currently reside in Wake County, North Carolina.  They separated by May 2014. They have no children.  In 2015, they agreed to dissolve their civil union to avoid any legal complications from its continued existence, and filed an uncontested complaint in the Vermont Superior Court, Windham Division, accompanied by a stipulation as required by the amended divorce statute.  Judge Karen R. Carroll dismissed the complaint, finding that “the parties failed to produce evidence that they attempted to obtain a dissolution of the civil union in North Carolina.”  Judge Carroll opined that if they first sought such a dissolution in the North Carolina courts and were turned down, “the proper appeal should be taken here.”  Carroll asserted that if the Vermont courts “continue to accept these filings and allow courts in other states to ignore precedent [set by Obergefell], the situation will never be resolved.”

Solomon appealed the dismissal, arguing that the court had exceeded its constitutional authority by imposing a requirement not specifically required by the statute, which was reversible error, by incorrectly applying Obergefell, which does not deal with the recognition of civil unions across state lines, and by misconstruing the plain language and legislative intent of the statute, which was intended to provide a way for out-of-state couples who entered civil unions in Vermont to be able to dissolve them if they lived in states that did not recognize them.

Surveying the legislative history of the statutory provision in question, 15 Vt. Stat. Ann. Section 1206(b), the court noted that the purpose of the amendment passed in 2012 was “to provide access to a civil union dissolution or a divorce to nonresident couples joined in a Vermont civil union or Vermont marriage who are legally barred from dissolving the union in their state of residence.” The Legislature specifically noted: “While an opposite-sex out-of-state couple who marries in Vermont can get divorced in the state of residence of either party, most same-sex out-of-state couples joined in a Vermont civil union or marriage do not have this option,” since at that time most states recognized neither civil unions nor same-sex marriages.  Of course, Obergefell changed this situation respecting same-sex marriages as of June 26, 2015, but the U.S. Supreme Court did not address the issue of civil unions, which was not presented in the context of the marriage equality litigation.

Under the Vermont statute, a nonresident civil union can be dissolved by the Family Court in the county where the civil union certificate was originally filed if the following criteria are met: the civil union was established in Vermont, neither party’s state of legal residence recognizes the Vermont civil union for purposes of dissolution, there are no minor children who were born or adopted during the civil union, and the parties file a stipulation together with a complaint that resolves all issues in the dissolution action.  The exclusion of couples who have children is likely due to the fact that a Vermont court would not have jurisdiction over non-resident children for the purposes of deciding issues of their custody and visitation.  This process is not available for contested dissolutions that would involve litigation over property disposition, for example, since a Vermont court would not have jurisdiction to allocate property rights of non-residents, either.  Both parties have to sign the stipulation, submitted under oath, which has to attest that all these criteria are met, including the criterion that their domiciliary states do not recognize the civil union or provide a legal mechanism for its dissolution.

Wrote Justice Marilyn Skoglund for the court, “Because civil marriage and civil unions remain legally distinct entities in Vermont and because Obergefell mandated that states recognize only same-sex marriages, uncertainty remains as to whether Obergefell requires other states to recognize and dissolve civil unions established in Vermont.  For that reason, Section 1206(b) is still necessary to remedy the issue originally addressed by the Legislature in 2012.”  In this case, the parties followed the requirements of that statute to the letter, and went even further by submitting an affidavit from a North Carolina attorney whose practice is “dedicated to providing services to the lesbian, gay and transgender community, including domestic relations, estate planning, and life planning.”  In this affidavit, the attorney attested that while North Carolina “grudgingly” follows Obergefell and recognizes same-sex marriages for divorce proceedings, “it will accord no recognition to a ‘civil union’ or ‘domestic partnership’ for [dissolution] purposes.”  The Vermont Supreme Court agreed with Solomon and Guidry that this affidavit is sufficient to satisfy the criteria of the statute, and there was no need for them to go through the motions of seeking a dissolution in a North Carolina court before applying for one in Vermont.

“It would reach beyond both the written letter and the Legislature’s intent to hold that the ‘acknowledgment’ must also include actual showing of an attempt to file in the other state,” wrote Justice Skoglund. The court reversed the trial judge’s ruling and remanded the case for that court to “follow the dictates of Section 1206(b).”

Solomon is represented by Amy K. Butler of Montpelier, Vermont. Guidry, who urged the court to grant Solomon’s appeal, is pro se in this matter.

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Two Federal Judges Order Public Schools to Let Transgender Students Use Gender-Appropriate Restrooms

Within days of each other, two federal district judges have issued preliminary injunctions requiring public schools to allow transgender students to use restrooms consistent with the students’ gender identity. U.S. District Judge Algenon L. Marbley of the Southern District of Ohio, based in Cincinnati, issued his order on September 26 against the Highland Local School District on behalf of a “Jane Doe” 11-year-old elementary school student, in Board of Education v. U.S. Department of Education, 2016 U.S. Dist. LEXIS 131474, 2016 WL 5239829.   U.S. District Judge Pamela Pepper of the Milwaukee-based Eastern District of Wisconsin, issued her order on September 22 against the Kenosha Unified School District on behalf of Ashton Whitaker, a high school student, in Whitaker v. Kenosha Unified School District No. 1, 2016 U.S. Dist. LEXIS 129678, 2016 WL 5372349.  Jane Doe is a transgender girl, Ashton Whitaker a transgender boy.

Although both cases are important, producing essentially the same results under Title IX and the Equal Protection Clause of the 14th Amendment, Judge Marbley’s ruling is more significant because the judge sharply questioned the jurisdictional basis for a nationwide injunction issued on August 21 by U.S. District Judge Reed O’Connor of the Northern District of Texas, Wichita Falls, which ordered the Obama Administration to refrain from initiating investigations or enforcement of violations of Title IX of the Education Amendments of 1972 based on gender identity discrimination.  O’Connor was ruling in a case initiated by Texas in alliance with many other states challenging the validity of the Obama Administration’s “rule” that Title IX, which prohibits sex discrimination by educational institutions that receive federal funds, prohibits gender identity discrimination and requires schools to allow transgender students to use facilities consistent with their gender identity.

Neither the Highland nor Kenosha cases were affected by O’Connor’s order in any event, since these cases were already under way before O’Connor issued his order and they involved district court complaints filed by the individual plaintiffs, not by the Department of Education.

The Doe v. Highland case before Judge Marbley is in part a clone of the Texas case pending before O’Connor. When a dispute arose about the school’s refusal to allow a transgender girl to use the girls’ restrooms and the Department of Education became involved in response to a complaint by the girl’s parents, the school district, abetted by Alliance Defending Freedom (ADF), the “Christian” law firm that is also providing representation to other challengers of the Administration’s position, rushed into federal district court to sue the Department of Education and seek injunctive relief.

As the case progressed, Jane Doe’s parents moved on her behalf to intervene as third-party plaintiffs against the school district. ADF pulled in many of the states that are co-plaintiffs in the Texas case and a clone case brought in federal district court in Nebraska, and moved to make them amicus parties in this case.  At the same time, pro bono attorneys from Pillsbury Winthrop Shaw Pittman LLP, a large firm based in Washington, D.C., together with local counsel from Columbus, Ohio, organized an amicus brief by school administrators from about twenty states in support of Jane Doe.  After being allowed to intervene as a plaintiff, Doe moved for a preliminary injunction to require the Highland Schools to treat her as a girl and allow her to use appropriate restrooms.

Judge Marbley first confronted the federal government’s argument that the court did not have jurisdiction over the Highland school district’s attack on the Administration’s interpretation of Title IX. Unlike Judge O’Connor in Texas, Judge Marbley concluded that the government was correct.  If a school district wants to attack the government’s interpretation of Title IX, he found, it must do so in the context of appealing an adverse decision by the Department of Education ordering it to comply with the interpretation or risk losing federal funding.  Marbley pointed out that under the administrative process for enforcement of Title IX, no school would lose funding before a final ruling on the merits is rendered, a process that would involve administrative appeals within the Department followed by an appeal to the U.S. Court of Appeals with a potential for Supreme Court review of a final ruling by the court.  Thus, the school district had no due process argument that it stood to lose funding without being able to seek judicial relief if it were deprived of the ability to sue directly in the district court.  Marbley found that there was no authorization under the statute or the Administrative Procedure Act (APA) for a school district to file a lawsuit directly in federal district court challenging an interpretation of Title IX.

Part of ADF’s argument in its lawsuits challenging the Obama Administration’s guidance to the school districts is that by not embodying this interpretation in a formal regulation, the Administration had improperly evaded judicial review, since the APA authorizes challenges to new regulations to be filed promptly in federal courts of appeals after final publication of the regulation in the Federal Register. ADF argued that the Guidance was, in effect, a regulation masquerading as a mere “interpretation.”  Judge O’Connor bought the argument, but Judge Marbley did not.

Marbley was dismissive of Judge O’Connor’s determination that he had jurisdiction to hear the Texas case. “The Texas court’s analysis can charitably be described as cursory,” he wrote, “as there is undoubtedly a profound difference between a discrimination victim’s right to sue in federal district court under Title IX and a school district’s right to challenge an agency interpretation in federal district court.  This Court cannot assume that the first right implies the second.”  Marbley went on to discuss in detail Supreme Court rulings on the question whether there was a private right of action under various federal statutes that did not expressly authorize lawsuits in the district courts, and the circumstances under which such authorization can be found by implication, as the courts have done to allow students to file Title IX lawsuits.  Marbley rejected the Highland school district’s argument that once Jane Doe had intervened, she would provide a basis for the court to assert jurisdiction over the school district’s claim.  Actually, he pointed out, the school district could raise its arguments against the Obama Administration’s interpretation of Title IX in response to Jane Doe’s lawsuit, and need not maintain a lawsuit of its own.  Thus, he concluded, the school district’s complaint should be dismissed on jurisdictional grounds.

In both cases, the attorneys for the transgender students argued alternatively under Title IX and under the Equal Protection Clause. In both cases, they argued that because gender identity discrimination is a form of sex discrimination, the Equal Protection analysis should receive the same “heightened scrutiny” that courts apply to sex discrimination claims, which throws the burden on the government to show that it has an exceedingly important interest that is substantially advanced by the challenged policy.

Here the cases diverged slightly in the judges’ legal analysis. Both judges found that the transgender plaintiffs were likely to succeed on the merits of their claims under both Title IX and the Equal Protection clause, that they were suffering harm as a result of the challenged policies, and that any harm the school districts would suffer by issuance of preliminary injunctions was outweighed by the plaintiffs’ harm if injunctions were denied.  In addition, both judges found that the injunctions were in the public interest.  But Judge Marbley additionally found that heightened scrutiny applied, while Judge Pepper, more conservatively, reached her conclusion by applying the rational basis test.  In either case, however, the judges found that the school districts’ justifications for their exclusionary policies lacked sufficient merit to forestall preliminary relief against them.

Significantly, Judge Marbley’s conclusion that heightened scrutiny applied to this case drew support from the Supreme Court’s marriage equality ruling, Obergefell v. Hodges.  He used Obergefell to question the continuing relevance of prior court of appeals analyses of equal protection “in light of Obergefell’s emphasis on the immutability of sexual orientation and the long history of anti-gay discrimination. Like the district courts that examined suspect classification based on sexual orientation,” he continued, “this Court will proceed to conduct its own analysis of the four-factor test to determine whether heightened scrutiny applies to a transgender plaintiff’s claim under the Equal Protection Clause.”  Marbley based his analysis of the four-factor test on a district court ruling last year in New York, Adkins v. City of New York, which found all factors to be satisfied to justify heightened scrutiny, including a finding that “transgender people have ‘immutable and distinguishing characteristics that define them as a distinct group” for purposes of analyzing their equal protection claims.

Significantly, both judges accorded great weight to the Obama Administration’s Guidance, and both judges also found persuasive the Richmond-based 4th Circuit Court of Appeals’ ruling in the Gavin Grimm case that district courts should defer to the Administration’s interpretation due to the ambiguity of existing regulations about how to deal with transgender students under Title IX.  In light of such ambiguity, the federal administrators would enjoy deference so long as they adopted an interpretation of the statute and regulations that is not inconsistent with the purpose of the statute.  The judges rejected the argument that because Congress in 1972 did not intend to ban gender identity discrimination, administrators and judges decades later could not adopt such an interpretation of “discrimination because of sex.”

Although the Supreme Court has stayed the injunction issued by the district court in the Gavin Grimm case while the Gloucester (Virginia) school district’s petition for review of the 4th Circuit’s ruling is pending before the Supreme Court, Judge Marbley pointed out that the stay does not affect the status of the 4th Circuit’s decision as a persuasive precedent.  He also pointed out the unusual step taken by the Justice Stephen Breyer of writing that he had agreed to provide the necessary fifth vote for a stay to “preserve the status quo” as a “courtesy” to the four conservative justices.  The Highland school district argued that the stay “telegraphed” that the Supreme Court was going to grant review of the 4th Circuit’s decision, but, wrote Marbley, “even if Highland has somehow been able to divine what the Supreme Court has ‘telegraphed’ by staying the mandate in that case, this Court unfortunately lacks such powers of divination.”  Furthermore, he wrote, “This Court follows statements of law from the Supreme Court, not whispers on the pond.”

Judge Marbley also accorded great weight to the amicus brief filed on behalf of school administrators from around the country. In this brief, they explained how they had implemented the policies required by the Education Department to accommodate transgender students.  They pointed out that allowing transgender students to use appropriate facilities had not created any real problems.  They argued that this was a necessary step for the mental and physical health of transgender students, and did not really impair the privacy of other students.  Furthermore, in the more than twenty school districts joining in this brief, the new policy had not in any case led to an incident of a sexual predator gaining access to a restroom under the pretext of the policy and harming any student.  Thus, while acknowledging that school districts can be legitimately concerned about the health and safety of students, the courts could conclude that any such risk was conjectural and not borne out by experience.

The judges also noted other district court decisions over the past year ordering schools to allow transgender students to use appropriate facilities, including a recent ruling in one of the North Carolina cases, requiring the University of North Carolina to ignore H.B.2, that state’s infamous “bathroom bill,” and allow the three individual transgender plaintiffs to use appropriate restrooms at the university while the case is pending before the court.

Judge Marbley’s in-depth analysis of the jurisdictional issues provides a roadmap for a challenge before the Houston-based 5th Circuit Court of Appeals to Judge O’Connor’s nationwide injunction.  The Texas lawsuit attempted to short-circuit the requirements of the Administrative Procedure Act by dragging an interpretive dispute into the federal district court when the relevant statute provides an administrative forum for hearing and deciding such issues before appealing them to the Courts of Appeals.

Judge Marbley was appointed to the district court by President Bill Clinton. Judge Pepper was appointed by President Barack Obama.

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N.Y. Appellate Division Applies New Precedent to Find Standing for Gay Dad Seeking Custody

In what may be the first application of the recent New York Court of Appeals decision, Brooke S.B. v. Elizabeth A.C.C., 2016 N.Y. Slip Op 05903 (August 30, 2016), which adopted a new definition of “parent” for purposes of the state’s Domestic Relations Law so as to account for cases of same-sex couples raising children, the New York Appellate Division, 2nd Department, based in Brooklyn, ruled on September 6 that a gay man who was parenting twin children conceived through in vitro fertilization using his same-sex partner’s sperm, had standing to seek custody of the children after the men split up.  The case, In re Anonymous, 2016 N.Y. App. Div. LEXIS 5833, had an interesting additional wrinkle, in that the plaintiff is the biological uncle of the children, because his sister served as the surrogate for their gestation and birth.  In a separate opinion issued on the same date, 2016 N.Y. App. Div. LEXIS 5834, the court rejected a challenge to the parental standing of the surrogate and upheld the temporary award of visitation to the co-parent while the case was pending.

The two cases consolidated in the Brooke S.B. ruling involved lesbian couples who had their children through donor insemination of one of the partners.  This new ruling extends that case to a situation where the birth mother, a surrogate, is still the legal parent of the children, and the dispute is between the father who donated the sperm used to conceive the children and his former partner, whose sister bore them.

The two men, identified in the court’s opinion by their first names as Joseph P. and Frank G., lived together in New York State from 2009 through February 2014, but did not marry when same-sex marriage became possible in New York.  They wanted to raise children together who would be genetically related to both of them, so Joseph took advantage of a long-standing promise by his sister, Renee, who had her own children, that she would bear children for her brother once he met his “life partner.”  Their understanding was that the two men would be the children’s parents, and that Renee would have a continuing role in the lives of any children resulting from this process.

The three adults executed a written surrogacy agreement in which Renee agreed to become pregnant using Frank’s sperm and to surrender her rights as a biological mother so that Joseph could adopt the resulting child or children.  They used an in vitro fertilization process (“test tube babies”), in which it is customary to implant more than one fertilized egg to ensure a successful conception.  Renee bore fraternal twins, a boy and a girl, in February 2010.  It is likely that Frank and Renee were listed on the twins’ birth certificates as the parents, but the court’s opinion does not mention this subject.

For the first four years after Renee gave birth, Joseph and Frank raised the children together, sharing parental rights and responsibilities, and the children regarded both of them as their parents.  They called Joseph “dada” and Frank “dad.”  The court’s opinion doesn’t say what they called Renee, but it does say that she frequently saw them.

Joseph and Frank separated early in 2014.  The children continued to live with Frank, but Joseph visited and cared for them “daily,” according to the court’s opinion, until May 2014.   Then Frank suddenly cut off contact between Joseph or Renee and the children.  In December 2014, Frank moved to Florida with the children, without giving any notice to Joseph or Renee, and without seeking permission from the court.  Although Renee had agreed in the surrogacy agreement to give up any claim of parental rights in order for Joseph to be able to adopt the children, they had never taken that step of adoption, so her parental rights had not been legally terminated.  Frank did not seek court permission to remove the children from the state, which would normally be required since he did not have permission from Renee, their legal mother.

After Frank’s move, Renee filed an action in the Family Court seeking custody of the children as their biological mother, and Joseph filed an action petitioning to be appointed their legal guardian.  Since the New York Court of Appeals had then recently reaffirmed its 1991 ruling, Alison D. v. Virginia M., 77 N.Y.2d 651, under which a person in Joseph’s position would not have standing to seek custody, a guardianship appointment would be the next best thing.  However, in June 2015 Joseph reconsidered his position, withdrew the guardianship petition, and filed his own action seeking custody as a de facto parent.

Frank then filed a motion to throw out Joseph’s case, relying on Alison D.’s definition of “parent” as being limited to a biological or adoptive parent, but Orange County Family Court Judge Lori Currier Woods denied the motion, and Frank appealed.  The appellate court’s opinion does not describe Judge Woods’ reasoning for denying Frank’s motion.

In its unanimous September 6 ruling, the panel of Justices L. Priscilla Hall, Jeffrey A. Cohen, Robert J. Miller and Betsy Barros noted that while this appeal was pending, the Court of Appeals had decided Brooke S.B. v. Elizabeth A.C.C., overruling the Alison D. decision and adopting a new definition of “parent.”  The Court of Appeals said that the old definition had “become unworkable when applied to increasingly varied familial relationships.”  Under the new definition, a partner of a biological parent will have standing to seek custody if the partner “shows by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together.” 

In this case, testimony about the verbal agreement between the men was bolstered by the written surrogacy agreement between the men and Renee.  This is ironic, since under New York Law the surrogacy agreement is itself against public policy and unenforceable in court.  For that very reason, Frank cannot rely on the Surrogacy Agreement in defending the separate custody case brought against him by Renee, since a statutory provision says that a surrogacy agreement cannot be considered by the court in a custody proceeding involving the surrogate mother.  

The Appellate Division found that “Joseph sufficiently demonstrated by clear and convincing evidence that he and Frank entered into a pre-conception agreement to conceive the children and to raise them together as their parents.”  The court also pointed out that the men “equally shared the rights and responsibilities of parenthood, and were equally regarded by the children as their parents.”  Thus, a straightforward application of the new precedent gave Joseph standing to seek custody.

Frank had also argued, as part of a belated attempt to get permission from the Family Court to relocate the children to Florida, that Renee’s parent standing was terminated due to her entry into a surrogacy agreement with the two men. Rejecting this argument, the court said that such rights were not terminated.  “Surrogate parenting contracts have been declared contrary to the public policy, and are void and unenforceable,” wrote the court.  As such, a surrogacy contract has no legal effect.  “Moreover,” the court observed, “Domestic Relations Law Sec. 124(1) expressly states that ‘the court shall not consider the birth mother’s participation in a surrogate parenting contract as adverse to her parental rights, status, or obligations.’”  The court also noted that a hearing would be required to determine whether it was in the best interest of the children to allow Frank to relocate them to Florida.  The court also affirmed the Family Court’s award to Joseph of specified visitation with the children while the case is pending.

This ruling does not mean that Joseph will automatically get custody.  The case goes back to the Family Court for a determination whether an award of custody to Joseph is in the best interest of the children.  Furthermore, although Renee’s custody petition is mentioned in the opinion, the appellate court gives no indication what effect its ruling will have on her custody claim.  However, because New York law does not provide that a child can simultaneously have three legal parents, the Family Court will have to take account of Renee’s continued legal status as the children’s parent in making a determination whether to award custody to Joseph, and whether that would require terminating the parental status of either Renee or Frank.  This is a complicated business, and the New York State legislature needs to modernize our Domestic Relations Law to sort through the intricacies and provide clear guidance to the courts when dealing with “non-traditional” families.  Left to their own devices without such guidance, it is difficult to predict what the courts will do.

Kathleen L. Bloom of New Windsor represents Joseph.  Michael D. Meth and Bianca Formisano of Chester represent Frank.  Gloria Marchetti-Bruck of Mount Kisco was appointed by the court to represent the interest of the children.  Since Renee was not involved in this appeal, the opinion does not identify her counsel.

 

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N.J. Appellate Division Reverses Convictions of Dharun Ravi

The New Jersey Appellate Division, an intermediate appeals court, threw out a state court jury’s conviction of Dharun Ravi on fifteen different criminal counts, finding that trial evidence about how Ravi’s actions in September 2010 adversely affected his college dormitory roommate, Tyler Clementi, had tainted all the verdicts in the case because it may have caused the jury to convict Ravi based on the victim’s belief rather than the defendant’s intent. Five of the convictions were tossed out permanently, but the remaining ten were sent back to the Middlesex County Superior Court, allowing prosecutors to retry Ravi on those counts.  State of New Jersey v. Ravi, 2016 Westlaw 4710195 (N.J. App. Div., Sept. 9, 2016).

Ravi and Clementi were assigned as dormitory roommates as incoming freshmen at Rutgers University. Over the summer of 2010, Ravi used internet resources to learn about Clementi, and concluded that Clementi might be gay, but did not raise the subject with Clementi when they arrived at school.  Ravi’s suspicions were reinforced on Sunday, September 19, when Clementi asked Ravi if Clementi could “have the room” for the evening because he was expecting a guest.

When Ravi saw that the guest was an “older man,” he arranged the webcam on his desk to focus on Clementi’s bed, and left his computer on so the video chat function could be activated remotely. Ravi went across the hall to the room of a woman who had been his high school classmate, Molly Wei.  Through her computer he was able to access his webcam and together they briefly viewed Clementi and his guest kissing. Ravi spread word to his friends through twitter that they could access his computer and view the scene as well. Later that night, Wei turned on the video chat function again with some guests in her room and briefly watched Clementi and his guest “making out.”

Two days later Clementi asked to have the room again. There was conflicting testimony about what happened that evening, but it seems that although Ravi had tweeted to people to tune in to his video chat during that time, and had tried to set things up again, those attempting to view what was happening in the room were unable to do so.

The guest, identified by the court only by his initials to preserve his confidentiality, testified that he and Clementi had sex on both occasions, that he had observed the webcam focused on the bed during the first of these meetings but had not said anything to Clementi about it, and the second time he noticed the webcam was pointed away from the bed. He testified that he first learned about Clementi’s suicide when he read about it in the newspapers.

Clementi had begun monitoring Ravi’s twitter feeds, learned about what was going on, and was apparently embarrassed and mortified, going to a Resident Assistant and asking about an immediate room change. He submitted an electronic request and administrators instituted an investigation.

When Ravi was informed about the investigation, he deleted some incriminating tweets from his twitter account, composed a new backdated tweet telling his followers not to attempt to video chat with him and telling them to ignore his last tweet, and sent Clementi an apologetic text message, disclaiming any ill intent. In this message, he stated that on the second night he had deliberately repositioned the webcam so that even though he had tweeted to his friends to tune in, they would not see anything.  Ravi also told Clementi that he knew Clementi was gay “and I have no problem with it. In fact one of my closest friends is gay and he and I have a very open relationship,” Ravi continued.  “I just suspected you were shy about it which is why I never broached the topic.  I don’t want your freshman year to be ruined because of a petty misunderstanding, it’s adding to my guilt.  You have the right to move if you wish but I don’t want you to feel pressured to without fully understanding the situation.”

Shortly after Ravi transmitted the text message, Clementi wrote on his Facebook page, “I’m going to jump off the GW Bridge. Sorry.” He committed suicide by jumping off the bridge later that night.  There is no evidence whether Clementi ever saw Ravi’s text message.

As soon as Clementi’s death was discovered, Rutgers ramped up the investigation. Ravi tried to reach out to his friend from across the hall, who had been brought in by the police for questioning.  His subsequent phone and text interactions with her became the subject of several of the criminal charges that were filed against him, relating to witness tampering and hindering apprehension of prosecution. He waived his Miranda rights and gave a statement to the investigators which cleaned up his actions by omitting “homophobic statements he candidly included” in the tweets and texts he had sent to his followers and friends about Clementi’s use of the dorm room.  “Without reciting at length the forty-four page interrogation document,” wrote the court, “we can safely summarize its content as a poorly executed attempt by defendant to sanitize his motives for using his knowledge of computers to surreptitiously observe T.C. and M.B. engaged in sexual relations.”

The main charges, however, were brought under New Jersey’s Bias Intimidation statute and invasion of privacy statute. At the time, the Bias Intimidation statute provided that a person was guilty of the crime of “bias intimidation” if “he commits, attempt to commit, conspires with another to commit, or threatens the immediate commission” of a variety of offenses listed in the statute either (1) purposely or (2) knowingly harassing the victim because of a characteristic (such as sexual orientation) listed in the statute, or if the victim (3) either “reasonably believed that the harassment was committed with a purpose to intimidate him” or that “he was selected to be the target” because of the characteristic.

At trial, the prosecution focused on the third of these categories, which is where they had the weightiest evidence. A major focus of the case was to persuade the jury that Clementi was a shy, sensitive person, who had clearly communicated to the Resident Assistant how upset he was by this “spying” on his private activities, which he amplified in the written complaint the RA encouraged him to write and submit with his room change application.  The evidence was overwhelming that this third branch of the bias intimidation crime had been proved beyond a reasonable doubt.

On the other hand, the evidence that Ravi intended to harm or upset Clementi was less overwhelming, if one judges by the evidence summarized by Judge Jose Fuentes in the appellate decision. From the excerpts in the opinion, it appears that Ravi was an immature, insensitive person who lacked empathy for his roommate and was curious to know what was going on in his dorm room when he “gave the room” to Clementi for the night.  In retrospect, it’s hard to understand how Ravi could believe that Clementi would not learn about his spying, since he was tweeting about it, or that Clementi, or anybody for that matter, would not be upset about their private activities being publicized and “netcast” in that way.

Thus, it is possible that the prosecution could have secured convictions on the bias intimidation counts without introducing evidence about the impact on Clementi and just focusing on what Ravi had said, tweeted and done. But in light of the opportunity provided by the third part of the statute and the evidence available to them, they presented all of it to the jury and won convictions on all counts.

During jury selection the judge “informed all prospective jurors during voir dire that [Clementi] committed suicide and that [Ravi] was not charged with either causing or contributing to his death.” His death was also mentioned several times during the trial, but was not mentioned during the judge’s charge to the jury or the prosecution’s closing argument.  It was made clear to the jury that Ravi was being tried solely for his own actions.

After being convicted on all counts, Ravi received what many commentators, and the prosecutors, believed to be an extraordinarily light sentence: three years of probation, conditioned on serving thirty days at the Middlesex County Adult Correctional Center, completing 300 hours of community service, attend counseling, and pay an “assessment” of $10,000, which would be given to a state-license or state-chartered community-based organization dedicated to providing assistance to victims of bias crimes. Ravi appealed his conviction, but was required to fulfill this sentence while the case was pending on appeal.  The prosecutors appealed the sentence, arguing that in light of the crimes, Ravi should have received substantially more time incarcerated.

Ravi was convicted in 2012. In 2015, in the case of State v. Pomianek, 110 A.3d 841, the New Jersey Supreme Court declared that the third part of the Bias Intimidation Statute was unconstitutional because it allowed a defendant to be convicted without any proof that he intentionally or knowingly engaged in conduct that violated the statute.  As written, the statute allowed a conviction based solely on the belief of the victim that he was the target of such harassment.  The court found that this violated basic constitutional rights.  “In focusing on the victim’s perception and not the defendant’s intent, the statute does not give a defendant sufficient guidance or notice on how to conform to the law, write Justice Barry T. Albin for the Supreme Court.  “That is so because a defendant may be convicted of a bias crime even though a jury concluded that the defendant had no intent to commit such a crime.”

The offending section had been added to the state’s bias intimidation law as part of a revision in response to a U.S. Supreme Court decision that struck down the prior law because it allowed the trial judge to impose a sentence greater than the one authorized by the jury verdict based on the judge’s view of the evidence. The Supreme Court determined that this violated the defendant’s right to trial by jury under the Sixth Amendment.

While striking down the objectionable part, the N.J. Supreme Court emphasized that the other two parts “still stand.” Wrote Justice Albin: “A defendant is prohibited from acting with the purpose to commit bias intimidation or with knowledge that his conduct constitutes bias intimidation.  With the striking of subsection (a)(3), New Jersey’s bias intimidation law now conforms to its original form, the statute’s explanatory statement contained in the legislative history, the laws of the rest of the nation, and the United States Constitution.”

Given the way the case was litigated, it is not surprising that the Appellate Division found that the verdict on all four bias intimidation counts had to be thrown out. What was surprising, however, was that the convictions on all the other counts fell as well.   However, the Judge Fuentes explained that “the evidence the State presented to prove the bias intimidation charges [under the stricken provision] permeated the entire case against defendant, rendering any attempt to salvage the convictions under the remaining charges futile.  The State used evidence revealing the victim’s reserved demeanor and expressions of shame and humiliation as a counterweight to defendant’s cavalier indifference and unabashed insensitivity to his roommate’s right to privacy and dignity.  The prosecutor aggressively pressed this point to the jury in her eloquent closing argument.”

“It is unreasonable to expect a rational juror to remain unaffected by this evidence,” Fuentes asserted. Although other evidence certainly supported the invasion of privacy counts, the charges of tampering with evidence (Ravi’s deletion of potentially intimidating tweets) and his attempt to affect what witnesses might say, the Appellate Division panel of three judges was convinced that the evidence about the effect on Clementi and his subsequent suicide, which should not have been presented to the jury, “constituted an error ‘of such a nature to have been clearly capable of producing an unjust result.’”

On the other hand, the court concluded that the state’s evidence on one of the hindering prosecution charges was so deficient that the charge should be permanently dropped from the case.

Judge Fuentes concluded the opinion with editorial comments condemning Ravi’s conduct and lamenting the misuse to which the internet can be put. “The sense of loss associated with a young man taking his own life defies our meager powers of reason and tests our resolve to seek consolation,” he wrote.  “From a societal perspective, this case has exposed some of the latent dangers concealed by the seemingly magical powers of the Internet.  The implications associated with the misuse of our technological advancements lies beyond this court’s competency to address.”

Ravi was not charged with liability in Clementi’s death, but the court was not willing to conclude without alluding to that responsibility. “The social environment that transformed a private act of sexual intimacy into a grotesque voyeuristic spectacle must be unequivocally condemned in the strongest possible way,” wrote Fuentes. “The fact that this occurred in a university dormitory, housing first-year college students, only exacerbates our collective sense of disbelief and disorientation.  All of the young men and women who had any association with this tragedy must pause to reflect and assess whether this experience has cast an indelible moral shadow on their character.”  Clearly, the court believed it had done so.

The bottom line is that the verdicts on the bias intimidation counts were reversed with prejudice, so Ravi cannot be retried on those counts, and one hindering prosecution count was permanently thrown out of the case. That leaves ten counts of actual or attempted invasion of privacy, hindering apprehension, witness tampering and evidence tampering. It is now up to the Middlesex County prosecutors whether to attempt to retry Ravi on these counts.  They were expected to announce a decision whether to go forward within a week after the Appellate Division’s opinion as released.

Ravi reported to the Middlesex County Correction Center for his 30-day sentence, and earned early release after 20 days for good behavior. Although press accounts were not specific about this, presumably he has fulfilled that other terms of the sentence imposed by Superior Court Judge Glenn Berman.  According to a report in the New York Daily News earlier this year about the argument before the court, Ravi’s attorney confirmed that he had not returned to Rutgers but was employed and had adjusted to his circumstances.  Tyler Clementi’s family responded to the incident by starting a foundation to support efforts to combat bullying and harassment of gay kids.

 

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VA Nurse Loses Job For Manipulating Male Genitals During Physical Exams

The U.S. Court of Appeals for the 7th Circuit rejected a Veterans Administration nurse’s challenge to his discharge for an unorthodox approach to diagnosing male genital warts in Riano v. McDonald, 2016 U.S. App. LEXIS 15097 (Aug. 17, 2016).

James Riano, who worked as a registered nurse for the VA in Milwaukee, had previously worked as a hospital corpsman in the Navy.  In 2004, he began working as an RN at the VA medical center.  Beginning in the summer of 2007, he began working at a new clinic specializing in treating genital warts in men.  He lost his job after a patient complained that Riano sexually assaulted him while giving him an examination.

Subsequent investigation disclosed that Riano’s usual routine in examining men for genital warts was to apply moisturizing cream to the penis and then applying pressure by hand until at least partial erection was achieved.  Riano accompanied this with crude language which he said was intended to put the men at ease, using words like “pecker” and “balls.”

Riano insisted that this technique was used in the Navy for such examinations, because, he claimed, it was easier to detect genital warts on a hard penis than a flaccid one.  In some cases Riano’s technique (perhaps overly energetic, or dealing with somebody suffering from “premature ejaculation”?) led to patients experiencing orgasm.

The VA’s Office of the Inspector General interviewed many men who were examined by Riano and concluded that his methods (and the sexually-oriented language he was using during examinations) were inappropriate, “not standard and not medically necessary,” and he was discharged.  He pursued an administrative appeal, producing statements from some patients who were quite satisfied with how they were treated by Riano (some of them clearly appreciated the “happy ending”), and some were even critical of the investigator, saying his questions were “too aggressive” and that their answers were taken out of context.  Some objected that the investigator “raised an inappropriate consideration by asking if they believed Riano was gay.”

Riano wanted the appeals board to receive live testimony from these patients, but the board denied his request, citing patient privacy, “potential emotional harm, and the adequacy of the patients’ written statements.”

The board also excluded as irrelevant Riano’s proffer of testimony from a former corpsman who had trained and worked with him in the Navy, where Riano claimed to have learned and applied this examination technique without complaints.  (Those Navy boys just want to have fun during those long excursions at sea!)  Riano also denied some patient reports about the language he used during their examinations and the allegation that he was actually masturbating patients for his own sexual gratification.

The hearing board received expert testimony refuting Riano’s contention about the desirability of provoking an erection to facilitate an exam for genital warts, in response to which Riano presented testimony from a female nurse practitioner that a partial erection could be beneficial in this context, but that it was not medically necessary and that she had never purposefully induced a patient’s erection for this purpose.  However, she opined that Riano’s technique was “within the scope of practice for a nurse” and that his use of sexually crude language in dealing with male patients was not necessarily outside the scope of normal practice.

Another testifying nurse confirmed Riano’s contention that using “moisturizing cream to create a sheen” made warts easier to detect.

Ultimately, the board found that “Riano had used language and an examination technique that was medically inappropriate,” and the board’s contention was upheld in Riano’s subsequent appeal to the federal district court.

Circuit Judge Ann Claire Williams, writing for the panel, found no due process errors and concluded that the evidence in the hearing record was sufficient to support the board’s conclusion, inasmuch as Riano did not “dispute the relevant details about his technique and language” and so “he has failed to show that he was harmed by the lack of live patient testimony.”  Furthermore, she endorsed the board’s determination that the expert testimony provided was sufficient to support the board’s conclusion that Riano’s behavior departed from “appropriate professional conduct.”

The court’s opinion says nothing about Riano’s sexual orientation, and he did not make it an issue in the case, relying instead on due process arguments to challenge the fairness of the Board’s decision.

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Texas Appeals Court Denies Constitutional Challenge to “Online Impersonation” Statute in Manhunt.net Case

Who knew? It is potentially a crime in Texas, and apparently several other states, to pose as somebody else on social media sites like Manhunt.net, and this does not violate anybody’s 1st Amendment rights, held a panel of the Texas 5th District Court of Appeals in Ex parte Bradshaw, 2016 Tex. App. LEXIS 9203, 2016 WL 4443714 (Aug. 23, 2016).

According to the opinion by Justice Robert M. Fillmore, Michael Dwain Bradshaw has been charged with violating Texas Penal Code Sec. 33.07(a), titled “Online Impersonation.” The statute provides that a person “commits an offense if the person, without obtaining the other person’s consent and with the intent to harm, defraud, intimidate, or threaten any person, uses the name or persona of another person to (1) create a web page on a commercial social networking site or other Internet website; or (2) post or send one or more messages on or through a commercial social networking site or other Internet website, other than on or through an electronic mail program or message board program.” The indictment charges Bradshaw with “intentionally or knowingly using Joel Martin’s name or persona to post or send one or more messages on or though manhunt.net, an Internet website, without obtaining Martin’s consent, and with the intent to harm Martin.”  Justice Fillmore does not get any more specific about the factual allegations against Bradshaw, devoting the entire balance of the opinion to rejecting his constitutional claims.  Bradshaw, represented by attorneys Mark W. Bennett and Toby L. Shook, filed a pretrial application for writ of habeas corpus, seeking to get the indictment quashed on the ground that the statute is facially unconstitutional.  A Dallas County Criminal Court judge denied the petition, and Bradshaw appealed to the 5th District court.

Bradshaw’s first argument was unconstitutional overbreadth, claiming that as worded the statute has the effect of “restricting a substantial amount of protected speech based on the content of the speech.” The state argued that the statute regulates only conduct and unprotected speech, and that any incidental effect on protected speech “is marginal when weighed against the plainly legitimate sweep of the statute.”  Justice Fillmore noted Supreme Court precedents describing the overbreadth doctrine as “strong medicine that is used sparingly and only as a last resort,” reserved for statutes presenting a “realistic” danger of inhibiting constitutionally protected speech.  The level of judicial scrutiny in such cases depends on whether the statute is content-based – that is, coverage triggered by the substance of the speech involved.  The court concluded that the “vast majority” of speech covered by the statute is not protected by the 1st Amendment, and agreed with the state’s argument that the statute is mainly about regulating conduct.

“Impersonation is a nature-of-conduct offense,” wrote Fillmore, which “does not implicate the First Amendment unless the conduct qualifies as ‘expressive conduct’ akin to speech.” Bradshaw contended that “using another’s name or persona to create a webpage, post a message, send a message” is inherently expressive conduct, but the court did not buy this argument, finding that the focus of the statute was on how somebody used another’s name or image: “Any subsequent ‘speech’ related to that conduct is integral to criminal conduct and may be prevented and punished without violating the First Amendment,” wrote Fillmore. As such, the level of judicial review of the statute would not be strict scrutiny – reserved for content-based speech restrictions – but rather “intermediate review” requiring the government to show that the statute advances a significant state interest.  Contrary to Bradshaw’s argument, the court found the statute to be content-neutral.  It didn’t matter whose name or persona was being appropriated; it was the fact of appropriation of identity, which the court saw as conduct, that was being punished, and then only if it was being done for purposes specified in the statute.

Looking to the legislative history of the statute, Justice Fillmore found Texas House committee hearings generating a report that the purpose of the statute was “to ‘deter and punish’ individuals who assumed the identity of another and sent false, harassing, or threatening electronic messages to the victim or a third party who was unaware of the perpetrator’s true identity. The committee noted that online harassment had resulted in suicide, threats of physical or mental abuse, and more, but ‘current Texas law does not provide a means of prosecuting some of the most egregious of these acts.  There is nothing in the legislative history,” wrote Fillmore, “that would suggest the legislature was targeting or expressing its disagreement with any particular topic or viewpoint by enacting section 33.07(a).”  And the court concluded that addressing this problem did involve a significant governmental interest of “protecting citizens from crime, fraud, defamation or threats from online impersonation.”

“It also serves a significant First Amendment interest in regulating false and compelled speech on the part of the individual whose identity has been appropriated,” wrote Fillmore, dismissing the “hypotheticals” posed by Bradshaw in his argument as insubstantial “in comparison to the statute’s plainly legitimate sweep over unprotected speech and conduct.”

Bradshaw also attacked the law under the 14th Amendment Due Process Clause as unduly vague, not giving specific enough warning to people about what conduct crossed the line of legality.  In this case, the court found, the legislature had avoided any vagueness problem by including elsewhere in the Texas Penal Code a definition of “harm” generally as “anything reasonably regarded as loss, disadvantage, or injury, including harm to another person in whose welfare the person affected is interested.”  More specifically, Chapter 33 of the Penal Code, which contains the challenged statute, has its own definition of “harm” that includes harm to computer data and “any other loss, disadvantage, or injury that might reasonably be suffered as a result of the actor’s conduct.”  Noting that harm is a word in common use, the court also cited to dictionaries, concluding that a “person of ordinary intelligence” would have “fair notice of what the statute prohibits.”

Finally, Bradshaw contended that Texas could not regulate conduct involving the internet because this “unduly burdens interstate commerce by attempting to place regulations on Internet users everywhere,” invoking a legal doctrine called the Dormant Commerce Clause. Fillmore rejected the contention that the Texas law burdens interstate commerce.  “Evenhanded local regulation intended to effectuate a legitimate local public interest that has only incidental effects on interstate commerce will be upheld,” he wrote, “unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.”  Here, he observed, the court had found that Texas has a significant interest in protecting its citizens.  “It is difficult to envision how interstate commerce is benefitted by the conduct proscribed by section 33.07(a),” wrote Fillmore, “and we believe the burden of the statute on interstate commerce is small.”  Thus, the writ was denied and the prosecution can proceed.

Which leads the reader to speculate about the facts of this case. Did Bradshaw use Martin’s picture or name to cruise on Manhunt.net, to lure people into compromising situations, or to engage in conduct that would damage Martin’s reputation or subject him to liability or prosecution if attributed to him?  If this case goes to trial and produces written opinions or attracts media attention, perhaps we will find out.  If, as is true in the overwhelming majority of criminal prosecutions, Bradshaw accepts a plea bargain offered by the prosecution, we may never find out.

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New York Court of Appeals Overrules Alison D., Sets New Test for Co-Parent Standing

The New York Court of Appeals has overruled a quarter-century-old precedent, establishing a new rule for determining when somebody who is neither a biological nor an adoptive parent can seeking custody of a child. The opinion for the court by Judge Sheila Abdus-Salaam in Brooke S.B. v. Elizabeth A. C.C., 2016 N.Y. LEXIS 2668, 2016 Westlaw 4507780 (August 30, 2016), provides that “where a partner shows by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together, the non-biological, non-adoptive partner has standing to seek visitation and custody under Domestic Relations Law Section 70.”

The court was ruling on two cases which originated with similar facts but then developed in different directions. According to the plaintiff’s petition in Brooke V. v. Elizabeth C.C., the women began their relationship in 2006, announced their “engagement” the following year, and then decided to have and raise a child together.  Elizabeth became pregnant through donor insemination and bore a son in June 2009.  Brooke and Elizabeth lived together with the child, sharing parental duties, until their relationship ended in 2010.  Elizabeth permitted Brooke to continue visiting with their son until the relationship between the women deteriorated, and Elizabeth terminated Brooke’s contact in 2013.  Brooke sued for joint custody and visitation rights, but the trial court and the Appellate Division agreed with Elizabeth’s argument that by virtue of the old Court of Appeals ruling, Alison D. v. Virginia M., 77 N.Y.2d 651 (1991), Brooke could not bring the lawsuit because she was neither the biological nor the adoptive parent of the child.  Brooke appealed to the Court of Appeals, asking it to overrule Alison D.

Although the term “parent” is not defined in the Domestic Relations Law provision that authorizes lawsuits for custody and visitation, it was defined by the Court of Appeals in Alison D. to be limited to biological or adoptive parents.  At that time, New York did not allow same-sex marriages or second-parent adoptions, so the ruling effectively precluded a same-sex co-parent from seeking joint custody or visitation after a break-up with the biological parent, in the absence of “extraordinary circumstances” recognized in some other cases decided by the Court of Appeals.  The court specifically ruled that the facts of Alison D. (similar to the Brooke B. case) did not constitute such “extraordinary circumstances.”

In the other case, Estrellita A. v. Jennifer D., the women began their relationship in 2003, registered as domestic partners in 2007, and then agreed to have a child together, with Jennifer becoming pregnant through donor insemination.  They agreed that they would obtain sperm from a Latino donor, matching Estrellita’s ethnicity.  Their daughter was born in November 2008. They lived together as a family for the next three years until the women’s relationship ended and Estrellita moved out in September 2012.  Estrellita continued to have contact with the child with Jennifer’s permission.  In October 2012, Jennifer started a proceeding in Family Court seeking child support payments from Estrellita.  Estrellita responded by petitioning for legal visitation rights.  The Family Court granted Jennifer’s petition for support, finding that “the uncontroverted facts established” that Estrellita was “a parent” of the child, and so could be held liable to pay child support.  However, responding to Estrellita’s petition for visitation, Jennifer argued that the Alison D. precedent should apply to block her claim.  The Family Court disagreed with Jennifer, finding that having alleged that Estrellita was a parent in order to win child support, she could not then turn around and deny that Estrellita was a parent in the visitation case.  The Family Court applied the doctrine of “judicial estoppel” to preclude Jennifer from making this inconsistent argument, and concluded after a hearing that ordering visitation was in the child’s best interest.  The Appellate Division affirmed this ruling, and Jennifer appealed.

Judge Abdus-Salaam’s decision refers repeatedly to the dissenting opinion written by the late Chief Judge Judith Kaye in the Alison D. case.  Judge Kaye emphasized that the court’s narrow conception of parental standing would adversely affect children being raised by unmarried couples, thus defeating the main policy goal of the Domestic Relations Law, which was to make decisions in the best interest of the child.  By adopting this narrow decision, the court cut short legal proceedings before the child’s best interest could even be considered.  Unfortunately, Judge Kaye passed away before learning that her dissent would be vindicated in this new ruling.  However, her dissent from the Court of Appeals’ refusal in Hernandez v. Robles to rule for same-sex marriage rights was vindicated in 2011 when the legislature passed the Marriage Equality Act, and she also lived to see her legal reasoning vindicated by the U.S. Supreme Court in Obergefell v. Hodges, which referred to her Hernandez dissent.

Judge Abdus-Salaam pointed out that Judge Kaye’s arguments in 1991 were even stronger today, with the growth of diverse families and the large numbers of children living in households headed by unmarried adults. She referred to a concurring opinion in a case decided by the court five years ago, in which then Chief Judge Jonathan Lippman and Associate Judge Carmen Ciparick (both since retired from the court) had argued that the Alison D. ruling “had indeed caused the widespread harm to children predicted by Judge Kaye’s dissent,” and asserting that Alison D. was inconsistent with some subsequent rulings.  That concurring opinion called for a “flexible, multi-factored” approach to decide whether there was a parental relationship between a child and an adult outside the narrow definition of Alison D.  In that same case, Judge Robert Smith (also now retired) argued that an appropriate test for parental status would focus on whether “the child is conceived” through donor insemination “by one member of a same-sex couple living together, with the knowledge and consent of the other.”

Acknowledging a body of court precedent recognizing the strong constitutional rights of biological parents, the Court of Appeals decided in its August 30 decision to take a cautious approach. Although some of the parties to the case urged the court to adopt an expansive, one-size-fits-all test for determining the standing of persons who are not biological or adoptive parents, the court decided to focus on the facts of these two cases, in both of which the plaintiffs had alleged that they had an agreement with their same-sex partner about conceiving the child through donor insemination and then jointly raising the child as co-parents.  The court left to another day resolving how to deal with cases where a biological parent later acquires a partner who assumes a parental role towards a child, or where a child is conceived without such an advance agreement.

Another sign of the court’s caution was its decision that the plaintiff would have to show by “clear and convincing evidence” that such an agreement existed. The normal standard of proof in civil litigation is “preponderance of the evidence,” which means the plaintiff would have to show that it was “more likely than not” that such an agreement existed.  Demanding “clear and convincing evidence” was an acknowledgment of the strong constitutional rights that courts have accorded to biological parents in controlling the upbringing of their children, including determining who would have visitation rights.  The U.S. Supreme Court emphasized this several years ago, when it struck down a Washington State statute that allowed anybody, regardless of legal or biological relationships, to petition for visitation upon a showing that it was in the best interest of the child.  Judge Abdus-Salaam emphasized the necessity of showing an agreement, that the biological parent had consented in advance to having a child and raising the child jointly with her partner.

The court decided this case without the participation of Judge Eugene Fahey. Four other members of the court signed Judge Abdus-Salaam’s opinion.  All of these judges were appointed by Governor Andrew Cuomo, a Democrat.  The other member of the court, Judge Eugene Pigott, who was appointed by Governor George Pataki, a Republican, and whose term expires this year, wrote a separate opinion, concurring in the result but disagreeing with the majority about overruling Alison D. v. Virginia M.

Judge Pigott pointed out that the Alison D. decision had been reaffirmed several times by the court, most recently just five years ago in a ruling that praised Alison D. as creating a “bright line test” that avoided unnecessary litigation and uncertainty about parental standing.  In that case, Debra H., the court decided on alternative grounds that a co-parent could seek visitation because the women had entered into a Vermont civil union before the child was born, thus giving equal parental rights under Vermont law to which New York could extend comity.

Judge Pigott argued that since we now have marriage equality and co-parent adoption in New York, and the Marriage Equality Law requires that same-sex marriages get equal legal treatment with different-sex marriages (including application of the presumption that a child born to a married woman is the legal child of her spouse), same-sex couples stand on equal footing with different sex couples and have no need for any modification of the definition of “parent” established by Alison D.   Nonetheless, he joined the court’s disposition of these two cases.  In %Estrellita v. Jennifer%, he agreed that it was appropriate to apply judicial estoppel and hold that Estrellita’s status as a parent had been established in the support proceeding and could not be denied by Jennifer in the visitation proceeding.  In the case of Brooke v. Elizabeth, he would apply the doctrine of “extraordinary circumstances” under which the trial court can exercise equitable powers to allow a non-parent who has an established relationship with a child to seek custody.  The “extraordinary circumstance” here would be one of timing and the changing legal landscape between 2006 and 2013, making it appropriate to allow Brooke to seek joint custody and visitation if she can prove her factual allegations about the women’s relationship.  Judge Pigott apparently sees this case as presenting a transitional problem that is resolved by changes in the law after these women had their children.

In the Brooke case, Susan Sommer of Lambda Legal represents Brooke with co-counsel from Blank Rome LLP and the LGBT Bar Association of Greater New York, Sherry Bjork represents Elizabeth, and Eric Wrubel serves as court-appointed counsel for the child.  In the Estrellita case, Andrew Estes represents Estrellita, Christopher J. Chimeri represents Jennifer, and John Belmonte is appointed counsel for the child.  The court received amicus briefs on behalf of the National Association of Social Workers, the National Center for Lesbian Rights, the New York City and State Bar Associations, the American Academy of Adoption Attorneys, Sanctuary for Families, and Lawyers for Children.   By interesting coincidence, Lambda Legal had represented the plaintiff in Alison D. v. Virginia M. twenty-five years ago, with its then Legal Director, the late Paula Ettelbrick, arguing the case before the Court of Appeals.

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District Judge Enjoins Enforcement of H.B. 2 against Transgender Plaintiffs by the University of North Carolina

U.S. District Judge Thomas D. Schroeder granted a motion for preliminary injunction brought by attorneys for three transgender plaintiffs asserting a Title IX challenge to North Carolina’s bathroom bill, H.B.2. Carcano v. McCrory, 2016 U.S. Dist. LEXIS 114605 (M.D. N.C., August 26, 2016).  Finding that the plaintiffs were likely to succeed on the merits of their Title IX challenge in his district court because he was bound by the 4th Circuit Court of Appeals’ ruling in G.G. v. Gloucester County School Board, 822 F.3d 709 (2016), to defer to the Department of Education’s interpretation of Title IX as banning gender identity discrimination and requiring restroom access consistent with gender identity by transgender students, Judge Schroeder concluded that satisfaction of the first test for preliminary injunctive relief, likelihood of success on the merits under 4th Circuit case law, was easily satisfied.  Judge Schroeder noted that the Supreme Court has stayed a preliminary injunction that was issued in the G.G. case while the school district petitions the Supreme Court to review the 4th Circuit’s ruling, but observed that the stay did not vacate the 4th Circuit’s decision, so the requirement for deferral remains the “law of the circuit,” binding on the district court.

Lambda Legal announced on August 29 that it would attempt to get the court to broaden the injunction so as to protect all transgender people in North Carolina from enforcement of the bathroom provision of H.B. 2.

This case arose after the North Carolina legislature held a special session on March 23, 2016, for the specific purpose of enacting legislation to prevent portions of a recently-passed Charlotte civil rights ordinance from going into effect on April 1. Most of the legislative comment was directed to the city’s ban on gender identity discrimination in places of public accommodation, which – according to some interpretations of the ordinance – would require businesses and state agencies to allow persons to use whichever restroom or locker room facilities they desired, regardless of their “biological sex.” (This was a distortion of the ordinance which, properly construed, would require public accommodations offering restroom facilities to make them available to transgender individuals without discrimination.)  Proponents of the “emergency” bill, stressing their concern to protection the privacy and safety of women and children from male predators who might declare themselves female in order to get access to female-designated facilities for nefarious purposes, secured passage of Section 1 of H.B. 2, the “bathroom bill” provision, which states that any restroom or similar single-sex designated facility operated by the state government (including subsidiary establishments such as public schools and the state university campuses) must designate multiple-user facilities as male or female and limit access according to the sex indicated on individuals’ birth certificates, labeled “biological sex” in the statute.

Another provision of the law preempted local civil rights legislation on categories not covered by state law, and prohibited lawsuits to enforce the state’s civil rights law. This would effectively supersede local ordinances, such as the recently-enacted Charlotte ordinance, wiping out its ban on sexual orientation and gender identity discrimination as well as several other categories covered by Charlotte but not by the rather narrow state civil rights law, such as veteran status. This had the effect of lifting Charlotte’s mandate that places of public accommodation not discriminate in their restroom facilities based on gender identity or sexual orientation, and limited the ordinance’s sex discrimination prohibition to distinctions based on “biological sex.”  Although private sector facilities could, if their owners desired, adopt policies accommodating transgender individuals, they would not have to do so.

A furious round of litigation ensued, with cases brought in two of the three North Carolina federal districts by a variety of plaintiffs, including the three individuals in Carcano (represented by the ACLU of North Carolina and Lambda Legal), who are all transgender people covered by Title IX by virtue of being students or employees of the University of North Carolina. Equality North Carolina, a statewide lobbying group, is co-plaintiff in the case.  Governor McCrory and state Republican legislative leaders sued the federal government, seeking declaratory judgments that H.B. 2 did not violate federal sex discrimination laws, while the Justice Department sued the state officials, seeking a declaration that H.B. 2 did violate federal sex discrimination laws and the Constitution.  A religiously-oriented firm, Alliance Defending Freedom, sued on behalf of parents and students challenging the validity of the Justice Department’s adoption of its Guidelines on Title IX compliance.  There has been some consolidation of the lawsuits, which are at various stages of pretrial maneuvering, discovery and motion practice.  Judge Schroeder’s ruling responded solely to a motion for preliminary relief on behalf of the three plaintiffs in the case against UNC, Governor McCrory and other state officials, including Attorney General Roy Cooper, the Democratic candidate for governor against McCrory.  Cooper is refusing to defend H.B. 2, requiring McCrory to resort to other defense counsel.

The University of North Carolina’s reaction to the passage of H.B. 2 has been curious to watch. At first University President Margaret Spellings announced that UNC was bound by the state law and would comply with it.  Then, after a storm of criticism and the filing of lawsuits, Spellings pointed out that H.B. 2 had no enforcement provisions and that the University would not actively enforce it.  Indeed, in the context of this preliminary injunction motion, the state argued that there was no need for an injunction because the University was not interfering with the three plaintiffs’ use of restroom facilities consistent with their gender identity.  Thus, they argued, there was no harm to the plaintiffs and no reason to issue an order compelling the University not to enforce the bathroom provisions.  Judge Schroeder rejected this argument, pointing out that “UNC’s pronouncements are sufficient to establish a justiciable case or controversy.  The university has repeatedly indicated that it will – indeed, it must – comply with state law.  Although UNC has not changed the words and symbols on its sex-segregated facilities, the meaning of those words and symbols has changed as a result of [the bathroom provisions], and UNC has no legal authority to tell its students or employees otherwise.” In light of those provisions, he wrote, “the sex-segregated signs deny permission to those whose birth certificates fail to identify them as a match.  UNC can avoid this result only by either (1) openly defying the law, which it has no legal authority to do, or (2) ordering that all bathrooms, showers, and other similar facilities on its campuses be designated as single occupancy, gender-neutral facilities.  Understandably, UNC has chosen to do neither.”  Since UNC has not expressly given transgender students and staff permission to use gender-identity-consistent facilities and has acknowledged that H.B. 2 is “the law of the state,” there is a live legal controversy and a basis to rule on the preliminary injunction motion.

Perhaps the key factual finding of Judge Schroeder’s very lengthy written opinion was that the state had failed to show that allowing transgender people to use restroom facilities consistent with their gender identity posed any significant risk of harm to other users of those facilities, and he also found little support for the state’s privacy claims, although he did not dispute the sincerity with which those claims were put forward by legislators. Indeed, as described by the judge, the state has been rather lax in providing any factual basis for its safety and privacy claims in litigating on this motion, and had even failed until rather late in the process to provide a transcript of the legislative proceedings, leaving the court pretty much in the dark as to the articulated purposes for passing the bathroom provision. According to the judge, the only factual submission by the state consisted of some newspaper clippings about men in other states who had recently intruded into women’s restrooms in order to make a political point. This, of course, had nothing to do with transgender people or North Carolina. The judge also pointed out that North Carolina has long had criminal laws in place that would protect the safety and privacy interests of people using public restroom facilities.  In reality, these “justifications” showed that the bathroom provision was unnecessary.  For purposes of balancing the interests of the parties in deciding whether a preliminary injunction should be issued, Schroeder concluded that the harm to plaintiffs in deterring them from using appropriate restroom facilities was greater than any harm to defendants in granting the requested injunction, and that the public interest weighed in favor of allowing these three plaintiffs to use restroom facilities consistent with their gender identities without any fear of prosecution for trespassing.  (Since the bathroom provision has no explicit enforcement mechanism, Judge Schroeder found, its limited effect is to back up the criminal trespassing law by, for example, designating a “men’s room” as being off-limits to a transgender man.)

However, Judge Schroeder, commenting that the constitutional equal protection and due process claims asserted by the plaintiffs were less well developed in the motion papers before him, refused to premise his preliminary injunction on a finding that the plaintiffs were likely to succeed in proving that H.B. 2’s bathroom provision violates the 14th Amendment.  Accepting for purposes of analysis that the plaintiffs were asserting a sex discrimination claim that invoked “heightened scrutiny” of the state’s justification for the bathroom provision, he concluded that it was not clear that the state could not meet that test, referring to 4th Circuit precedents on individual privacy and the state’s interest in protecting the individual privacy of users of public restroom facilities.  He reached a similar conclusion regarding the due process arguments, putting off any ruling on them to the fall when he will hold a hearing on the merits.  There will be pre-trial motions to decide in the other cases that were consolidated with this one for purposes of judicial efficiency, so this ruling was not the last word on preliminary relief or on the constitutional claims.

Judge Schroeder explained that his injunction directly protects only the three plaintiffs and not all transgender students and staff at UNC. “The Title IX claim currently before the court is brought by the individual transgender Plaintiffs on their own behalf,” he wrote; “the current complaint asserts no claim for class relief or any Title IX claim by ACLU-NC on behalf of its members.  Consequently, the relief granted now is as to the individual transgender Plaintiffs.”  Despite that technicality, of course, this preliminary injunction puts the University on notice that any action to exclude transgender students or staff from restroom facilities consistent with their gender identity has already been determined by the district court to be a likely violation of Title IX, which could deter enforcement more broadly.  Given the University’s position in arguing this motion that it was not undertaking enforcement activity under the bathroom bill anyway, there was no immediate need for a broader preliminary injunction in any event.

Judge Schroeder was appointed to the court in 2007 by President George W. Bush.

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New Hampshire Supreme Court Ruling on Gay Divorce Property Distribution

The New Hampshire Supreme Court ruled on August 19 that a judge deciding a divorce case for a lesbian couple could take into account the couple’s many years of cohabitation before the state made it possible for them to become civil union partners and then spouses, in deciding how to divide up their “marital assets.” The decision in Matter of Deborah Munson and Coralee Beal, 2016 N.H. LEXIS 180, 2016 WL 4411308, adopts a creative interpretation of the divorce statute in order to get around the limiting concept of “marital property” usually applied in such cases.

The ruling follows the lead of several other states in confronting what is likely to be a recurring issue during this transitional period following the adoption of marriage equality in the United States. Divorce statutes normally include “the length of the marriage” as a factor to take into account when the court decides how to divide up assets as part of a divorce proceeding following a brief marriage.  Many long-term same-sex couples married over the past few years after lengthy periods of non-marital cohabitation, and spouses of unequal income within a relationship could be seriously disadvantaged if the court could not take account of the entire length of their relationship in deciding on a fair asset distribution.

In this case, Deborah Munson and Coralee Beal lived together as a couple for fifteen years before they were able to become civil union partners as a result of new legislation in New Hampshire in 2008. When the state subsequently passed a marriage equality bill that took effect on January 1, 2011, their civil union was automatically converted into a marriage.  On March 28, 2012, Munson filed a petition for divorce.  At trial, she took the position that this was a short-term marriage, a factor that would cut against Beal’s potential distribution of assets.

Beal countered by arguing that prior to the legalization of “gay marriage” the couple “did what the law allowed them to do as any other married couple to provide for each other, including, but not limited to executing estate plans that left respective estates to the other, [Munson] providing life and health insurance for her partner’s benefit, having joint accounts, sharing duties within the home and finally joining together in a civil union and legal marriage.” Beal argued that the court “must consider the parties’ lengthy twenty-one year relationship when ordering a distribution of the marital property in this matter.”

However, the court marked October 8, 2008 (the date of their civil union) as the start of their marriage for purposes of this case, holding that “the issues in their divorce will be determined using that as the start date.” As a result, the court departed from the usual presumption of equal distribution of assets and ordered distribution of only about 12% of the marital estate to Beal in addition to ordering Munson to pay her alimony of $500 per month for five years.  Beal appealed.

Justice Gary Hicks, writing for the court, quoted the statute’s definition of the “marital estate” as including “all tangible and intangible property and assets, real or personal, belonging to either or both parties, whether title to the property is held in the name of either or both parties,” and the statute “assumes that all property is susceptible to division.” Normally, an equitable distribution involves a relatively equal distribution of the assets.  However, the statute permits a court to find that an equal distribution “would not be appropriate or equitable after considering one or more of” fifteen factors listed in the statute, including “the length of the marriage.”

In the case of a “short-term marriage” where one spouse brings substantially greater assets than the other to the marriage, a court may decide that it is inappropriate to redistribute to the spouse who brought much less to the marriage a significant share of what the wealthier spouse brought to the marriage. This seems quite logical.  If a rich person marries a poor person and the marriage quickly breaks down, would it be proper to total up all their assets and divide them in half?  Such an approach might lend itself to undesirable fortune-hunting schemes.  Pointing to the court’s past rulings on this issue, Hicks wrote, “We have observed that in a short-term marriage, it is easier to give back property brought to the marriage and still leave the parties in no worse position than they were in prior to it.”  However, he pointed out, duration of the marriage is only one of many factors to consider, and “marital property is not to be divided by some mechanical formula but in a manner deemed ‘just’ based upon the evidence presented and the equities of the case.”

In this case, the trial court applied the “short-term marriage” approach and specifically stated in its ruling that it “declined Beal’s invitation to declare the parties married upon their cohabitation in the 1990s.” On appeal, Beal argued that the court’s approach erred in failing to consider the “commingling of assets before 2008,” and that by focusing on the shortness of their legal marriage, “the trial court ignored the substantial and uncontroverted evidence developed at trial that the parties had a committed romantic and financial partnership long before 2008.”

After referring to decisions taking into account pre-marital cohabitation from courts in Oregon, Michigan, Hawaii, Indiana, Montana, and Connecticut, the New Hampshire court decided that it could not totally ignore the statutory factor of “length of the marriage” and explicitly treat this marriage as having been 21 years long. However, the list of factors in the statute includes a final catch-all category: “any other factor” that the court “deems relevant.”  As courts in those other states had recognized, “premarital cohabitation may be relevant to the distribution of marital property” in cases where a couple had commingled their assets.

“The couple may have become depend upon the assets that they shared prior to marriage,” wrote Hicks, “such that it may not be just for a court in divorce proceedings to ignore their cohabitation period when determining what constitutes an equitable property distribution.” He specifically noted arguments submitted in support of Beal’s appeal by the ACLU of New Hampshire and Gay & Lesbian Advocates & Defenders, contending that “when a divorcing couple’s relationship has included ‘years of economically interdependent cohabitation followed by a “short” marriage, the notion of returning the parties to their original premarital position is unrealistic’ because ‘the relationship was not, in any relevant way, short-term.’”

Thus, the New Hampshire Supreme Court could see “no reason” why the statute, “which broadly permits the trial court to consider ‘any other factor that it deems relevant,’ would not permit the court to consider premarital cohabitation. We therefore hold that premarital cohabitation is a factor that the court may consider in divorce proceedings when determining whether to depart from the presumption that ‘an equal division is an equitable division of property.’”

In this case, the trial court made detailed factual findings relevant to this issue, and then apparently ignored them in declaring that it would treat this as a “short-term marriage” as to which it would depart from the equal division presumption. “We conclude,” Hicks wrote, “that, by not taking these findings into account, the court did not exercise the full breadth of its discretion under the statute.”  Thus, the case would have to be remanded for a reconsideration of the property division.

Furthermore, in making the alimony award, a trial court is supposed to take into account whatever property division it has made. Since the property division will have to be reconsidered, so will the alimony award.

The court rejected Munson’s argument that because the couple could have married early than 2008 as same-sex marriage was available in a few other states and Canada prior to that date, Beal’s argument that civil unions were not available prior to 2008 should be rejected. “Whether Munson and Beal could have entered into a civil union or married earlier does not affect our analysis,” wrote Hicks.  “Had they done so, their period of premarital cohabitation would have been shorter, but, for the reasons previously discussed, it would have still remained a relevant factor in the determination of an equitable property division.”

The court also noted that the logic of its ruling would apply as well to different-sex couples who divorce shortly after marrying but after cohabiting for a long time, pointing out that long-term cohabitation has become much more common, and quoting one study showing that in 2008, “6.2 million households were headed by people in cohabiting relationships. . . They included 565,000 same-sex couples.” Thus, this holding applies in all divorce proceedings.

The court rejected Munson’s argument that its ruling would violate a New Hampshire constitutional provision barring “retroactive enforcement of laws that affect substantive rights or impose new duties or obligations,” finding this argument “unavailing” because it was not in any way changing the definition of “marital assets” or deeming the cohabitation to consist of a “marital status,” but merely giving a reasonable interpretation to the “other factors” provision in the statute.

Beal is represented by Kysa M. Crusco of Bedford. Paul R. Kfoury, Sr., Andrea Q. Labonte and Courtney M. Hart of Manchester and Saco, Maine, represented Munson.  The amicus brief was filed by Gilles R. Bissonette of the ACLU of New Hampshire and Mary Bonauto of GLAD, based in Boston.  Bonauto argued on behalf of the plaintiffs in the Supreme Court’s 2015 marriage equality case, Obergefell v. Hodges.

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9th Circuit Rejects Religious Freedom Challenge to California Law Banning Conversion Therapy for Minors

California’s S.B. 1172, which prohibits state-licensed mental health providers from engaging in “sexual orientation change efforts” (commonly known as “conversion therapy”) with minors, withstood another 1st Amendment challenge in a new decision by the San Francisco-based U.S. Court of Appeals for the 9th Circuit in the case of Welch v. Brown, 2016 U.S. App. LEXIS 15444, 2016 WL 4437617, announced on August 23.

A unanimous three-judge panel of the court of appeals affirmed a ruling by U.S. District Judge William B. Shubb that the law does not violate the religious freedom rights of mental health providers who wish to provide such “therapy” to minors or of their potential patients.

In a previous ruling, the court had rejected the plaintiffs’ claim that the law violated their free speech rights. They had argued that such therapy mainly involves talking, making the law an impermissible abridgement of freedom of speech. The court had countered that this was a regulation of health care practice, which is within the traditional powers of the state.  As such, the court found that the state had a rational basis for imposing this regulation, in light of evidence in the legislative record of the harms that such therapy could do to minors.

In this case, the plaintiffs were arguing that their 1st Amendment religious freedom claim required the court to apply strict scrutiny to the law, putting the burden on the state to show that the law was narrowly-tailored to achieve a compelling state interest.  They contended that the law “excessively entangles the State with religion,” but the court, in an opinion by Circuit Judge Susan P. Graber, said that this argument “rests on a misconception of the scope of SB 1172,” rejecting the plaintiffs’ claims that the law would prohibit “certain prayers during religious services.”  Graber pointed out that the law “regulates conduct only within the confines of the counselor-client relationship” and doesn’t apply to clergy (even if they also happen to hold a state mental health practitioner license) when they are carrying out clerical functions.

“SB 1172 regulates only (1) therapeutic treatment, not expressive speech, by (2) licensed mental health professionals acting within the confines of the counselor-client relationship,” she wrote, a conclusion that “flows primarily from the text of the law.” Under a well-established doctrine called “constitutional avoidance,” the court was required not to interpret the statute in the manner suggested by the plaintiffs.  This conclusion was bolstered by legislative history, ironically submitted by the plaintiffs, which showed the narrow application intended by the legislature.  Thus, “Plaintiffs are in no practical danger of enforcement outside the confines of the counselor-client relationship.”

Plaintiffs also advanced an Establishment Clause argument, contending that the measure has a principal or primary purpose of “inhibiting religion.” Graber countered with the legislature’s stated purpose to “protect the physical and psychological well-being of minors, including lesbian, gay, bisexual and transgender youth, and to protect its minors against exposure to serious harm cause by” this “therapy.”  The court found that the “operative provisions” of the statute are “fully consistent with that secular purpose.”  A law that has a secular purpose with a possible incidental effect on religious practice is not subject to strict scrutiny under Supreme Court precedents.  Again, the court pointed out, religious leaders acting in their capacity as clergy are not affected by this law.

The court also rejected the contention that a minor’s religiously-motivated intent in seeking such therapy would be thwarted by the law, thus impeding their free exercise of religion. The court pointed out that “minors who seek to change their sexual orientation – for religious or secular reasons – are free to do so on their own and with the help of friends, family, and religious leaders.  If they prefer to obtain such assistance from a state-licensed mental health provider acting within the confines of a counselor-client relationship, they can do so when they turn 18.”

The court acknowledged that a law “aimed only at persons with religious motivations” could raise constitutional concerns, but that was not this law. The court said that the evidence of legislative history “falls far short of demonstrating that the primary intended effect of SB 1172 was to inhibit religion,” since the legislative hearing record was replete with evidence from professional associations about the harmful effects of SOCE therapy, regardless of the motivation of minors in seeking it out.  Referring in particularly to an American Psychiatric Association Task Force Report, Judge Graber wrote, “Although the report concluded that those who seek SOCE ‘tend’ to have strong religious views, the report is replete with references to non-religious motivations, such as social stigma and the desire to live in accordance with ‘personal’ values.”  Thus, wrote the court, “an informed and reasonable observer would conclude that the ‘primary effect’ of SB 1172 is not the inhibition (or endorsement) of religion.”

The court also rejected the argument that the law failed the requirement that government be “neutral” concerning religion and religious controversies. It also rejected the argument that prohibiting this treatment violates the privacy or liberty interests of the practitioners or their potential patients, quoting from a prior 9th Circuit ruling: “We have held that ‘substantive due process rights do not extend to the choice of type of treatment or of a particular health care provider.’”

Attorneys from the Pacific Justice Institute, a conservative legal organization, represent the plaintiffs. The statute was defended by the office of California Attorney General Kamala D. Harris.  Attorneys from the National Center for Lesbian Rights, with pro bono assistance from attorneys at Munger, Tolles & Olson LLP, filed an amicus brief defending the statute on behalf of Equality California, a state-wide LGBT rights political organization.

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