New York Law School

Art Leonard Observations

National Youth Orchestra of the USA at Carnegie Hall

I was at Carnegie Hall last night to hear the first performance in their “home hall” of this year’s version of the National Youth Orchestra of the United States of America.  David Robertson, music director of the St. Louis Symphony and the Sydney (Australia) Symphony, conducted an all-teen ensemble in music by Leonard Bernstein, Benjamin Britten, Samuel Adams, and Modest Mussorgsky.  Robertson’s brother-in-law, violin virtuoso Gil Shaham, was soloist in the Britten concerto.

Last year was the first for this ensemble, but they didn’t play in New York City because of summer construction projects at Carnegie.  All the press reports last year were very positive about the quality of the group, and those reports were all confirmed last night.  These enthusiastic youngster played at a professional level.  While there were occasional signs of caution, on the whole the interpretations seemed appropriate for the music.  More importantly, the performances had distinctive personalities.  These young musicians were not playing by rote; they were throwing themselves into the music.

The Symphonic Dances from West Side Story were an audacious choice.  This music is rhythmically intricate, and many of the solo passages take the players to extremes under very exposed circumstances.  Playing this music really well is quite an accomplishment.  Robertson brought out the swing of some of the music, and the orchestra was with him every step of the way.

I have to confess that the Britten Violin Concerto is not one of my favorites, and I think there are good reasons why it has not really entered the active concert repertory, although many violinists – including Shaham – are working hard to promote it.  The structure – a moderate first movement, brief scherzo, then lengthy slow passacaglia, all linked – taxes the listener with its unbroken span of more than half an hour, and it is not exactly packed with memorable melodic material.  Perhaps the most effective part is the final few minutes, which can easily catch up the listener in an emotional experience, as one member of the orchestra commented in remarks from the stage.  Certainly Shaham does his best with it, and the orchestra seemed totally engrossed.

After intermission, we had the newly-commissioned “Radial Play” by Samuel Adams (son of John Adams, the San Francisco-based composer who has emerged as one of the most frequently played living American composers).  Is Adams a devotee of the “spectral music” crowd?  It seemed so with this piece, a short exercise in orchestral color that struck me as singularly lacking in tunes or thematic development.  That said, it was not too long to outstay its welcome, and it put the orchestra through their paces in terms of dynamic contrasts and color.

Finally, on the listed program, Maurice Ravel’s orchestra of Mussorgsky’s Pictures at an Exhibition presented an excellent show-case for the talents of this young orchestra, including numerous solo trumpet passages, the big saxophone solo in “The Old Castle,” and many other passages for wind and percussion soloists.  The program list of orchestral personnel was alphabetical within sections, so one could not know the names of the soloists, but they were uniformly excellent.  The solo trumpet cracked on one note during the exposed passages, but just one, and that is almost par for the course – I’ve heard the same from professional orchestras.  The one soloist who can be identified, Alto Saxophone player Chad Lilley, was excellent in his big solo.  Robertson adhered to moderate tempi, which took a bit of the excitement out of some of the faster “pictures,” but he built magnificent momentum in the finale, The Great Gate at Kiev, and they really raised the roof.  I especially enjoyed the vigor with which one of the percussionists had the suspended bar that produces the church bell effect in the final moments!

Encores: a brief but effective suite of selections from Gershwin’s Porgy and Bess, and an audience sing-along with America the Beautiful, both very well done.

Now, my only adverse comment: Who made the decision to dress these people in bright red pants?  I thought that was silly and infantilizing.  They play at a professional level and should be dressed as professionals.  I wouldn’t insist on formal wear for a youth orchestra, but appropriate dress would reinforce their professional status.  They were also all wearing white & red converse sneakers, as were Robertson and Shaham.  The significance of this escapes me….

I hope there will be a Carnegie Hall appearance by the NYOUSA next summer.  I’d love to hear them again.

Music | Comment

The Obama Government Contractor Executive Order

The White House has announced that President Barack Obama will sign an executive order on July 21, 2014, amending Executive Order 11246 to add “sexual orientation” and “gender identity” as prohibited grounds of discrimination by government contractors.  Announcements emanating from the White House suggest that the addition of these terms to the existing executive order are the only substantive changes that will be made.  The non-discrimination requirements will be included in new federal contracts made after the Labor Department has published final regulations implementing the amendments, probably beginning early in 2015.  Only new contracts entered after that date will be affected by the amendments.  [Update: The Order was signed this morning, July 21, and in addition to amending EO 11246, also amends EO 11478, which establishes non-discrimination policy within the Executive Branch, by addition "gender identity" to the categories already listed in the EO, which was originally adopted in 1969 by President Richard M. Nixon and was amended by Bill Clinton to add "sexual orientation" during the 1990s.]

EO 11246 was signed by President Lyndon B. Johnson on September 24, 1965, just a few months after Title VII of the Civil Rights Act of 1964 went into effect at the beginning of July 1965.  EO 11246 charged the Labor Department, through its Office of Federal Contract Compliance Programs (OFCCP), to oversee a program under which “government contracting agencies” would include in every contract (with some exceptions) a provision under which the contractor agreed not to discriminate in employment because of race, color, religion, sex or national origin, the categories of forbidden discrimination under Title VII, and agreed to abide by rules, regulations and relevant orders promulgated by the Labor Department to enforce this requirement.  Contractors are required generally to include similar provisions in any subcontracts they make as part of their performance of their federal contracts.  The penalty for “noncompliance” with these requirements could be cancellation, termination or suspension of the contract, and ineligibility for future contracts.  Complaints about noncompliance are handled administratively; the president does not have the power to enact laws that can be enforced by individual plaintiffs in the federal courts.  Generally EO 11246 charges the Labor Department to investigate complaints, to try to facilitate settlements, and to refer cases that involve violations of federal statutes to the appropriate enforcement agencies, such as the Equal Employment Opportunity Commission (EEOC).  Of course, the EEOC would only have jurisdiction to initiate enforcement action over complaints involving forms of discrimination prohibited by the statutes that agency is charged with enforcing, such as Title VII.

In 2002, President George W. Bush amended the executive order to provide that “this Order shall not apply to a Government contractor or subcontractor that is a religious corporation, association, educational institution, or society, with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.”  However, the Order states, “Such contractors or subcontractors are not exempted or excused from complying with the other requirements contained in this Order.”

According to advance word from the White House, President Obama’s amendments will not change this 2002 religious exemption and will not expand it in any way.  That is to say, religious corporations, associations, educational institutions or societies that contract with the federal government to provide services or goods will have to agree not to discriminate in their employment practices on the ground of sexual orientation or gender identity, which may present some of those organizations with particular challenges in light of the religious doctrines to which they adhere.  This raises immediate questions about whether religious organizations might plausibly argue that they cannot recognize a gay person as a member in good standing of their faith, regardless of that person’s professed beliefs?  Who gets to decide, for example, whether an individual professing to be Catholic but also being openly gay can be denied employment by a Catholic agency under contract to the federal government to provide social welfare services to the public, because the agency does not believe that an openly gay person can be deemed to be a practicing Catholic?

The First Amendment’s Free Exercise Clause generally protects religious organizations from interference by the government in their religious activities.  The Supreme Court has held that organizations of any type do not have a constitutional right to refuse to comply with laws of general application that do not single out religious practices for prohibition.  At the same time, the Court has held that free exercise of religion includes giving religious organizations free reign in their employment policies regarding “ministers,” persons to be employed to carry out the religious mission of the organization.  There is some controversy about who can be deemed a ministerial employee, litigation tending to focus on teachers and administrators in religious schools who teach secular subjects but are deemed by the schools to be “ministers” nonetheless and required to sign employment contracts that commit them to avoiding conduct that violates the tenets of the religion.

After the Supreme Court issued its key ruling about the requirement to comply with laws of general application, Congress passed the Religious Freedom Restoration Act (RFRA), providing that persons with religious objections to complying with laws of general application could claim a religious exemption unless the government could show that the government had a compelling interest supporting the general law and that the law provided the least restrictive alternative to achieving that interest.  In effect, Congress wanted to restore prior Supreme Court case law to the extent possible through a statute by imposing upon itself and the federal regulatory apparatus a limitation on its ability to compel people to comply with legal requirements that would violate their religious beliefs.  Many states passed similar laws placing the same restrictions on their own legislative and regulatory functions.

Last month, the Supreme Court ruled in Burwell v. Hobby Lobby Stores that the federal Dictionary Act’s definition of “person” to include corporations applies to RFRA, in a case where two closely-held family-owned business corporations claimed an exemption from complying with regulations under the Affordable Care Act requiring them to cover certain contraceptive methods in health insurance for their employees.  The Court went on to hold that, assuming the government had a compelling reason for including these contraceptive methods in its coverage requirements, requiring these employers to arrange for and pay for the coverage was not the least restrictive method of achieving the coverage goal, as the government could provide the coverage directly itself, or could provide some other mechanism that would make the coverage available without imposing on the objecting corporation.  Another example of a less restrictive alternative cited by the Court was a regulation that the administration had adopted for religiously-identified non-profit corporations, who could signify their objections to the specific items of coverage on a form provided by the government that they would submit to their health insurer, which would then be required to provide the coverage and seek reimbursement from the government.  (That regulation is under attack by some religious non-profit corporations, that claim that executing the form and sending it t0 their insurer substantially burdens their free exercise rights as well.)

The Court’s Hobby Lobby ruling raised immediate fears about whether corporations owned or operated by individuals with religious objections to homosexuality and/or same sex marriage might claim exemptions from employing or serving gay people or same-sex couples.  In her dissenting opinion, Justice Ruth Bader Ginsburg cited two cases on this point, in which state courts had rejected religious exemption claims from state public accommodations laws by a Minnesota health club, which did not want to have gay members, and a New Mexico wedding photographer, who had rejected a job preparing a wedding album for a lesbian couple.  The New Mexico case also involved that state’s version of RFRA, which the New Mexico Supreme Court held was not violated by application of the public accommodations law to a small business.  Similarly, there is litigation pending in Colorado involving a baker who rejected an order to provide a cake for the wedding celebration of a gay male couple.  These are not the kinds of businesses that would likely contract with the federal government, but the nature of the problem is clear.

Under the Executive Order, for example, could a closely-held family-owned company that produces certain technology that the federal government wants to buy, or that provides consulting services that the federal government wants to obtain, insist that for religious reasons it cannot employ gay people, or more particularly cannot continue to employee gay people who marry same-sex partners?  (There are many reports now of Catholic schools that have employed gay people as teachers and administrators for many years suddenly terminating their employment after learning that these people are marrying or have married a same-sex partner.)  Could a federal contractor refuse to include the same-sex spouse of an employee in its employee benefits plan on the same-basis that it includes different-sex spouses, because of religious objections to same-sex marriage?  EO 11246, as amended on July 21 by President Obama, would probably say no.  But if the protesting contractor sought protection from the non-discrimination requirement under RFRA, how would it fare?

These questions are difficult to answer prospectively.  In his opinion for the Court in Hobby Lobby, Justice Alito said that the court was ruling on the case before it, focusing on whether a closely-held family-owned business with religious objections to some forms of contraception was entitled to an exemption from ACA coverage requirements, at least to the extent that non-profit religiously-affiliated organizations had already been accorded by the Obama Administration in its regulations.  The Court, according to Alito, was not purporting to establish a wide-ranging exception to all legal obligations for all business corporations.  Alito commented that an employer could not rely on its religious beliefs to  seek exemption from the race discrimination requirements of Title VII.  But we don’t know whether that comment implicitly relied on the status of race as a suspect classification under the Equal Protection Clause, or the fact that Title VII recognizes a bona fide occupational qualification defense in cases involving religion, national origin or sex discrimination but not in cases involving race or color.  Did Alito mean to suggest more broadly that the RFRA exemption would not extend to any discrimination claims?  Justice Ginsburg was concerned about this in her dissent when she cited the two gay-specific examples from prior case law.  She might well have also noted the Supreme Court’s decision in Boy Scouts of America v. Dale, where the majority found that the Boy Scouts’ 1st Amendment freedom of expression and association rights took priority over whatever interest the state of New Jersey had in forbidding public accommodations such as the Boy Scouts from discriminating based on sexual orientation.  What would the Supreme Court majority think about the relative weight of an executive order banning sexual orientation or gender identity discrimination as opposed to statutory protection for free exercise of religion in RFRA?  Statutes would logically outweigh executive orders when there is a conflict between the two.  Can a presidential executive order that is not effectuating a policy adopted by Congress (as the original 11246 was effectuating the policy of Title VII, albeit going beyond it by applying the non-discrimination requirement to businesses exempt from coverage under Title VII due to their size or the nature of their business) signify a compelling government interest, or does Congress have the sole authority to establish compelling government interests, since the President’s Executive Orders as a matter of law and custom are aimed at the internal policies of the Executive Branch?

When religious opponents of the LGBT executive order suggest that it is going to lead to litigation, they are not making empty threats.  It is likely that some contractor who loses or fails to obtain a contract because they will not comply on religious grounds with the non-discrimination requirement will go to court seeking injunctive relief, and the question will be squarely presented whether RFRA applies to the situation and whether a compelling state interest can be based on an executive order that is not effectuating a policy decision by Congress?

Other questions arise about the pending version of the Employment Non-Discrimination Act, approved last year by the Senate, which provides a rather broad religious exemption beyond the narrow exemption now found in Title VII, the ministerial exemption, or the Bush amendments to EO 11246.  In the wake of Hobby Lobby, one has to ask whether a narrower exemption, similar to that in Title VII, would survive challenge under RFRA?  Questions for which there are at present no firm answers…

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Atlantic Theater Company’s Production of “Between Riverside and Crazy”

I attended a performance this afternoon of Atlantic Theater Company’s production of Stephen Adly Guirgis’s new play, “Between Riverside and Crazy.”  It was not clear to me whether this was a preview or whether the production has actually opened, but everything went very smoothly and the cast and technical crew certainly have everything under control.

I was very entertained and impressed by this story of an elderly African-American former NYC police officer, retired on a disability pension and struggling along in his rent controlled Riverside Drive apartment.  Other characters are the officer’s son, his son’s girlfriend, another friend of the son who is living in the apartment as a guest, a “church lady” who pays a visit, and a police lieutenant and his police detective fiancé who come to dinner.  This seven-member cast provides lively entertainment in a drama that has moments of comedy and is fast-paced and engaging under the direction of Austin Pendleton.  The set by Walt Spangler provides an excellent representation of one of those big old Upper West Side Manhattan rent controlled apartments.

Stephen McKinley Henderson creates an unforgettable character as “Pops” Washington, the retired cop.  He has been given witty dialogue and he makes the most of it.  Victor Almanzar is amusing and horrifying as an ex-con junkie friend of Pops’ son, and Ray Anthony Thomas is solid as the son, Junior.  Rosal Colon as Junior’s girlfriend, Lulu, provides much of the comic relief as well as some of the pathos.  Michael Rispoli and Elizabeth Canavan play the police officers who are charming at first.  Finally, Liza Colon-Zayas is a “church lady” with an agenda.

I wouldn’t call this a “deep” show, but I think there are many interesting messages buried in it as it explores the perspective of somebody in the position of Pops who is determined not to become a victim of the system that he has come to detest.  This was very much worth seeing, and I hope it draws full houses for the rest of its run.

Theater | Tagged , , , , | Comment

Stay Days in the Marriage Equality Fight

On Friday, July 18, several new “stays” were added to the mounting list of pro-marriage-equality rulings that can’t go into effect as appellate courts ponder where they stand on the issue.

The 10th Circuit Court of Appeals ruled that Oklahoma’s ban on same-sex marriage is unconstitutional, but stayed its appeal while the Tulsa County Clerk, represented by Alliance Defending Freedom and the Tulsa County Attorney’s Office, decides whether to petition the Supreme Court for certiorari.  Since Oklahoma’s Governor denounced the court’s decision and said she will fight it, perhaps the state will now step up and have the Attorney General’s office step in to provide the legal representation at the Supreme Court level.  It would be less embarrassing for the state if it were not represented by the right-wing Christian ideologues at ADF, whose attorney argued the case at the 10th Circuit.

The U.S. Supreme Court announced a stay of the injunction that had been issued on May 19 by U.S. District Judge Kimball (D. Utah) in Evans v. State of Utah.  Judge Kimball had ordered the state to recognize the same-sex marriages that were performed between December 20, 2013, and January 6, 2014, pursuant to Judge Shelby’s Dec. 20 opinion finding Utah’s same-sex marriage ban unconstitutional.  The Supreme Court stayed Judge Shelby’s order on January 6, after both Shelby and the 10th Circuit had denied a stay.  In this second case, Judge Kimball denied a stay but temporarily put his opinion on hold to let the state seek a stay from the 10th Circuit.  Just days ago the 10th Circuit saw no reason to stay Kimball’s ruling, but gave the state until July 21 to get a stay from the U.S. Supreme Court.  Utah petitioned the Supreme Court on July 16, the ACLU (representing the plaintiffs) filed its response on the 17th, and Justice Sotomayor, to whom the petition was directed, referred it to the full Court, which granted the stay pending resolution by the 10th Circuit of the state’s merits appeal of Kimball’s ruling.  I had read the state’s petition to the Supreme Court and found it very convincing, in light of the Court’s prior decision to stay Judge Shelby’s order.

In Colorado, where clerks in three counties (Adams, Denver, Pueblo) have been issuing marriage licenses to same-sex couples, the Attorney General finally prevailed in his quest to stop those activities as appeals on the constitutionality of the state’s marriage ban work their way through the system.  On July 9, a state trial judge in Adams County had declared the ban unconstitutional, but stayed his order pending appeal by the state.  The clerk in Boulder had been issuing licenses since late June, when the 10th Circuit issued its ruling in the Utah case.  Her position was that even though the 10th Circuit stayed its ruling to give the state an opportunity to seek further review, the court had declared the marriage ban unconstitutional, and she would no longer be complicit with denying same-sex couples their constitutional rights.  The Attorney General sued the clerk, seeking a court order to stop her from issuing licenses until there is a final appellate ruling on the Colorado marriage ban.  On the same date that one Colorado judge was declaring the ban unconstitutional, another Colorado judge was hearing arguments on the Attorney General’s quest for injunctive relief against the Boulder clerk.  The next day, July 10, that court denied the request, and two more clerks — in Denver and Pueblo Counties — jumped into the fray, issuing licenses.  The Attorney General appealed the denial of an injunction to the Colorado Supreme Court, which issued a terse ruling on July 18, ordering the Adams County and Denver County clerks to stop issuing marriage licenses pending resolution of the state’s appeal of the July 9 decision from Adams County.  Curiously, the court did not mention the Pueblo County Clerk in this order, which emanated from the en banc court.  Governor John Hickenlooper, a recent convert to the marriage equality cause, had urged the Attorney General to refrain from these actions and allow the issuance of licenses, and to not appeal the Adams County trial court ruling, but the A.G. disagreed.

Additionally, we should note news from Florida, where the local press reports that Attorney General Pam Bondi’s action in filing an immediate notice of appeal from the Key West marriage equality decision that was issued this week means that decision is stayed pending appeal to the Florida 3rd District Court of Appeal, so the Monroe County clerk will not begin issuing marriage licenses on Tuesday, as the trial court’s order had specified.

The other significant and somewhat puzzling development of the week was that the 7th Circuit, which had scheduled oral argument in the marriage equality cases from Wisconsin and Indiana for August 13, cancelled that argument without explanation, merely stating that it would be rescheduled.  Possibly this related to the court’s agreement to allow some briefs to be filed as late as August 11, or to a request by one or both states for more time to prepare for oral argument of their appeals, as August 13 was a super-fast-track date.  The pending marriage equality appeals in the 6th Circuit will be argued on August 6, and the pending 9th Circuit appeals will be argued early in September.  The 5th Circuit hasn’t set an argument date yet for the Texas appeal.  The 4th Circuit heard arguments in the spring and, according to press reports in Virginia, is expected to issue its ruling in the Virginia case by the end of July.  Trial courts in other states in the 4th Circuit have put pending marriage equality cases “on hold” until after the 4th Circuit’s opinion is announced.  If the 4th Circuit rules in favor of the plaintiffs, one expects it will stay its ruling to allow the defendants (two Virginia county clerks) to decide whether to petition for rehearing en banc or certiorari; this will present the trial judges in the Carolinas and West Virginia with a judgment call about whether to reactivate those cases and decide summary judgment motions, or to hold up while the case plays out in the Supreme Court.  This was actually the strategy of District Judge Kern in Oklahoma, who had put that marriage case — which also included a challenge to DOMA Section 3 — on hold while the DOMA challenges in other states worked their way through Supreme Court review.

So, at present, there are lots of balls in the air, and plenty of stayed marriage decisions in places like Idaho, all the states of the 6th Circuit, Virginia, Wisconsin, Indiana, and Texas, as well as Utah and Colorado.  At this point, it seems that the only ways to win the right to marry quickly involve either persuading state officials not to appeal a trial court ruling (see Oregon and Pennsylvania, where the late-intervening clerk has not yet given up, having filed a new petition with the 3rd Circuit seeking en banc consideration of the denial of her intervention petition), winning a state constitutional ruling (New Mexico, New Jersey), or getting a legislature to take affirmative action (Hawaii and Illinois since last year’s U.S. v. Windsor ruling from the Supreme Court, which undoubtedly had an influence on wavering legislators).

 

Legal Issues | Comment

European Human Rights Court Rejects Discrimination Claim by Finnish Transgender Woman

A Grand Chamber (17 judges) of the European Court of Human Rights has rejected a claim by a transgender woman from Finland that her European Convention rights were violated when the Finnish government would not recognize her correct gender unless her wife agreed to have their marriage converted into a registered partnership.  The July 16  ruling in Hamalainen v. Finland drew a strong dissenting opinion from three judges on the court.

Ms. Hamalainen, a resident of Helsinki, was identified male at birth but has always felt that she was female.  She struggled to cope with her male gender role, but in 1996, when she was 33, she married a woman and they had a child in 2002. Her unease inhabiting a male role worsened, and she sought medical help in 2005.  In April 2006 she was diagnosed as transgender and she has lived as a woman since then, undergoing transition surgery in September 2009.  After her 2006 diagnosis, she changed her name and renewed her passport and driver’s license, but her attempt to get her Finnish identity number changed has been unsuccessful.  As of now, both her passport and her identity number mark her as male.  This has generated problems in everyday life, as her official identification documents conflict with her appearance and gender role.

The reason why the government will not officially identify her as female is because she remains married to her wife.  Finnish marriage law restricts marriage to different-sex couples.  Finland did adopt a registered partnership law for same-sex couples, which carries almost all the rights of marriage under national law.  Finland also has a transgender recognition law, but it provides that a married person’s gender transition will not be officially recognized unless their spouse consents to their marriage being converted to a registered partnership.  To do otherwise, contends the Finnish government, would violate the marriage law and undermine the nation’s policy of preserving the traditional definition of marriage.  There are proposals pending in the Parliament to adopt a marriage equality law, but so far they have not succeeded.  Ms. Hamalainen’s other alternative, if she wants official recognition of her female identity, would be to divorce her wife.

The complication here is that neither Ms. Hamalainen nor her wife want a divorce.  They also don’t want a registered partnership, as this would mark the wife socially as a lesbian, which she decidedly is not.  They are deeply religious people who consider marriage a sacred bond, reject the idea of divorce, and believe that they should stay married and continue to raise their child together.  Ms. Hamalainen expressed concern that her parental rights might be compromised if she is not married to her child’s mother.

Ms. Hamalainen argued that Finland’s refusal to accommodate her by recognizing her female sex but leaving her marriage intact violates three articles of the European Convention for the Protection of Human Rights and Fundamental Freedoms:  Article 8, which protects privacy and respect for private life; Article 12, which protects the right to marry; and Article 14, which forbids discrimination because of sex and has been interpreted also to prohibit discrimination because of sexual orientation and gender identity.  In 2012 a smaller panel of judges rejected her claim, and she requested that the case go to a Grand Chamber, which held a hearing on the case in October 2013.

The court agreed that all three of the provisions of the Convention potentially applied in this case, but ultimately determined that Finland’s position does not violate the Convention.  Ms. Hamalainen’s claims ran aground mainly on the Court’s preference to look to consensus or strongly emerging trends among the nations that are signatories to the Convention in deciding on the substance of protected rights.  Taking the position that what she is seeking is to have a recognized same-sex marriage, the court noted that ten member states of the Council of Europe permit same-sex marriages: Belgium, Denmark, France, Iceland, Norway, Portugal, Spain, Sweden, the Netherlands and the United Kingdom (but only in England and Wales as of now, as the Scottish marriage equality law has not yet come into effect).  In those countries, of course, the gender of marital partners is no longer an issue.  On the other hand, 24 member states “have no clear legal framework for legal gender recognition or no legal provisions which specifically deal with the status of married persons who have undergone gender reassignment.”  Six countries that don’t at present allow same-sex marriages do have relevant legislation: Hungary, Italy, Republic of Ireland, Malta, Turkey and Ukraine.  “In these States the legislation specifically requires that a person be single or divorced, or there are general provisions in the civil codes or family-law provisions stating that after a change of sex any existing marriage is declared null and void or dissolved.”  As of now, only three countries that are parties to the Convention would accommodate this kind of case: Austria, Germany, and Switzerland.

Thus, a European consensus in favor of Hamalainen’s claim doesn’t exist.  Furthermore, in recent cases the Court has said that Articles 8 and 12 do not require member states to allow same-sex couples to marry, or thus to render gender irrelevant to marriage, although the  Court has found violations of the Covenant when states refuse to provide an alternative legal status for same-sex couples that provides substantially all the rights of marriage.  Within the Council of Europe, civil unions or the like are the minimally acceptable requirement to conform to the obligation for respect for private life. (Italy is the major outlier here in Western Europe, and the government is moving towards some kind of civil union law.)  Since officially recognizing Ms. Hamalainen as female while married to a woman would be, effectively, to allow a same sex marriage, the Court refused to rule in her favor, having found that under existing European human rights law, Finland has a right to reserve marriage for different-sex couples.

The Court’s jurisprudence focuses on the “margin of appreciation” that member states have in terms of complying with established human rights norms.  In the past, the Court has said the margin of appreciation is narrow in sexual orientation or gender identity discrimination cases, which means that states must have good policy reasons for maintaining policies that discriminate on these grounds.  This reflects the emerging consensus among member states that such discrimination improperly intrudes on the autonomy of the individual.  However, as there is no European consensus on marital rights of transgender individuals, “the Court considers that the margin of appreciation to be afforded to the respondent State must still be a wide one.”

The Court found that since Finland has extended to same-sex registered partnerships almost all the legal rights of marriage, it had struck a “fair balance” between the individual’s claims in this case and the nation’s interest in preserving its traditional definition of marriage.  The Court rejected Hamalainen’s contention that Finland was effectively forcing her to divorce her wife if she wanted the state to recognize her correct sex, in light of the registered partnership alternative.  As long as her wife withheld consent from this alternative, however, it appears that Hamalainen must seek a divorce if she wants to have her gender properly recorded in her passport and indicated in her national identity number.

The Court made short work of the argument that Finland’s policy violates the right to marry, pointing out that Hamalainen is married already and was not denied that right.  The Court rejected her “equal protection” claim, finding the lack of comparators necessary to analyze a discrimination claim.

The dissenters rejected the Court’s conceptualization of the case, particularly arguing against the idea that the lack of a consensus among European states about how to treat this issue meant that Finland should have a “wide margin of appreciation” in deciding how to deal with it.  While conceding that the lack of a consensus was one factor to consider, the dissenters argued, “that same margin is restricted where a particularly important facet of an individual’s existence or identity is at stake.”  The dissenters argued that the Court “has some discretion regarding its acknowledgement of trends,” and in the past has not let the absence of a consensus get in the way of a ruling where an individual has a strong claim.  The dissenters note, for example, a landmark ruling involving transgender rights in England, the Christine Goodwin case, where the court held that “the lack of such a common approach among forty-three Contracting States with widely diverse legal systems and traditions is hardly surprising.  The Court accordingly attaches less importance to the lack of a common European approach to the resolution of the legal and practical problems posed, than to the clear and uncontested evidence of a continuing international trend in favor not only of increased social acceptance of transsexuals but of legal recognition of the new sexual identity of post-operative transsexuals.”  This decision led to a decisive change in English law, prompting the Parliament to undertake a study and enact a gender recognition statute that has become a model for other British Commonwealth countries. England’s recent enactment of marriage equality, of course, has solved the particular problem that Hamalainen faces in Finland.

The dissenters rejected the Court’s conclusion that Ms. Hamalainan had a “real choice between maintaining her marriage and obtaining a female identity number” just because the state would treat her marriage as a registered partnership if her wife consented.  “We believe that it is highly problematic to pit two human rights — in this case, the right to recognition of one’s gender identity and the right to maintain one’s civil status – against each other.”  The dissenters were particularly critical of the Court’s failure to take account of the religious objections to divorce by Hamalainan and her wife, and to her wife’s continued identification as heterosexual, which would be compromised in society’s eyes by considering her a party to a registered partnership, a status in Finland reserved for same-sex couples who are perceived as gay or lesbian.  “In this regard,” wrote the dissenters, “we believe that the majority did not take important factual information sufficiently into account.” The dissenters also suggested that requiring Finland to recognize the continued marriage status of gender-transitioning spouses would hardly amount to a large enough number of cases to endanger the country’s general policy against same-sex marriages.  It would not destroy public order or undermine the security of the state.

The dissenting judges are from Hungary (Andras Sajo), Switzerland (Helen Keller), and Belgium (Paul Lemens).

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10th Circuit Rules on Oklahoma Marriage Case, Affirming District Court’s Decision Striking Down the Ban

The same panel of three judges that ruled last month that Utah’s same-sex marriage ban is unconstitutional reiterated that ruling on July 18 in Bishop v. Smith, 2014 U.S. App. LEXIS 13733, holding that Oklahoma’s ban was unconstitutional for the same reason: it denies same-sex couples a fundamental right without sufficient justification.  Once again, 10th Circuit Judge Carlos F. Lucero wrote for the majority of the court in Bishop v. Smith, devoting most of his opinion to procedural and jurisdictional issues and, in fact, ceding one portion of the opinion to Judge Jerome A. Holmes, who also authored a separate concurring opinion to address an issue that technically wasn’t before the court: whether the Oklahoma Marriage Amendment was the product of unconstitutional animus, which Holmes concluded it was not.  As in the Utah case, Judge Paul J. Kelly, Jr., dissented, but the focus of his dissent this time was Article III standing of the plaintiffs, not the merits of their constitutional claim.  And, also as in the Utah case, the court stayed the effect of its ruling “pending the disposition of any subsequently-filed petition for writ of certiorari” to the Supreme Court. The Oklahoma marriage case has the distinction of having taken longer to get to this point — a ruling on the merits by the U.S. Court of Appeals — than any other marriage equality case.

It was filed nearly ten years ago, in November 2004, by two same-sex couples, Mary Bishop and Sharon Baldwin, who were seeking the right to marry, and Susan Barton and Gay Phillips, who were civilly united in Vermont in 2001 and subsequently married in Canada in 2005.  Barton and Phillips were originally concerned with the failure of the federal government to recognize their legal relationship.  That original lawsuit was filed against the Governor and Attorney General of Oklahoma and the federal government, and specifically challenged the Oklahoma Marriage Amendment, known as State Question 711 (SQ711) and the federal Defense of Marriage Act.

The case actually got to the 10th Circuit when the state officials appealed District Judge Terence C. Kern’s refusal to dismiss the complaint against them.  In an unpublished opinion, the 10th Circuit ruled that neither the Governor nor the Attorney General were appropriate officials to sue, because neither played a direct role in administering Oklahoma’s marriage laws.  The 10th Circuit said in that opinion that in Oklahoma the marriage laws were administered by the court system, through the court clerks in each county, so a lawsuit challenging the laws must be filed against a clerk. The case was sent back to the district court, where plaintiffs filed an amended complaint against the Tulsa County Clerk, Sally Howe-Smith, who refused to issue Bishop and Baldwin a marriage license.  By then Barton and Phillips had gotten married in Canada (in 2005) and in California (in 2008), so now they were specifically seeking recognition of their out-of-state marriages by both Oklahoma and the federal government.

The case sat before Judge Kern for years with nothing much happening, other than the Tulsa court clerk, Sally Smith, filing an affidavit swearing that her job had nothing to do with recognizing out-of-state marriages.  In 2011, when U.S. Attorney General Eric Holder announced that the Justice Department would no longer defend Section 3 of DOMA, the House Bipartisan Legal Advisory Committee (BLAG) entered the case to defend DOMA. After the Supreme Court decided U.S. v. Windsor last June, holding Section 3 of DOMA unconstitutional and setting off the avalanche of new marriage equality lawsuits around the country, Judge Kern reactivated the dormant lawsuit, which had been “on hold” while the DOMA litigation was playing itself out.

Placing great weight on Smith’s affidavit, Judge Kern ruled that Barton and Phillips, who were suing for recognition of their out-of-state marriages, had failed to sue an appropriate defendant and thus lacked standing to attack the state’s law on marriage recognition.  Under standing principles in federal court, the plaintiffs have to sue a party whom the court can order to do something to redress the plaintiff’s injury.  Barton and Phillips had never produced any evidence to contradict Smith’s affidavit, so it stood uncontradicted.  Thus, Kern refused to rule on the marriage recognition issue. As to Bishop and Baldwin’s claimed right to marry, Kern ruled in their favor, rejecting the Smith’s argument that they also lacked standing because their lawsuit challenged only the constitutional amendment and not Oklahoma’s marriage statute, which also provides that only different-sex couples can marry.  Kern brushed that problem aside, and held that the ban on same-sex marriage violated the 14th Amendment.

Smith appealed, represented by lawyers from Alliance Defending Freedom, an anti-gay litigation group based in Scottsdale, Arizona, as well as the Tulsa County District Attorney’s Office.  Barton and Phillips also appealed, represented by Don Holladay, the Oklahoma City lawyer who had initially conceived the lawsuit and represented the couples throughout the litigation with other lawyers from his firm, Holladay & Chilton PLLC.  Among other things, Barton and Phillips argued that they had appropriately sued the clerk, because that’s what the 10th Circuit had told them to do in the prior opinion.

Judge Lucero started his opinion by referring to the court’s ruling in Kitchen v. Herbert, the Utah marriage case, and reiterated the court’s holding from that case: same-sex couples are seeking to be included in the fundamental right to marry, and the state’s justifications for refusing to let them marry “that turn on the procreative potential of opposite-sex couples do not satisfy the narrow tailoring test applicable to laws that impinge upon fundamental liberties.” Smith had attempted to raise some new arguments, but Lucero rejected them.

More significantly, Smith argued that the right to marry claim should be dismissed on standing grounds because the complaint had attacked only the marriage amendment, not the marriage statute.  Judge Lucero found that under Oklahoma law the marriage amendment actually replaced the statute, so a ruling holding the amendment unconstitutional would completely resolve the issue.  Lucero quoted a prior Oklahoma case on point: “A time-honored rule teaches that a revising statute (or, as in this case, a constitutional amendment) takes the place of all the former laws existing upon the subject with which it deals.”  Thus, there was no need to specify the marriage statute in the plaintiffs’ complaint.

Lucero also rejected Smith’s challenge to Judge Kern’s conclusion that Baker v. Nelson, the Supreme Court’s 1972 dismissal of a marriage equality case from Minnesota as not presenting a “substantial federal question” was not binding on the court.  “Her argument that doctrinal developments do not allow a lower court to reject the continued applicability of a summary disposition is undermined by the explicit language of the case creating the rule,” Lucero wrote, citing the Supreme Court’s 1975 decision, Hicks v. Miranda, where the Court said that lower courts should adhere to the Supreme Court’s view that a case does not present a substantial federal question “except when doctrinal developments indicate otherwise.”  Doctrinal developments at the level of the Supreme Court since 1972 certain establish that a right to marry for same-sex couples now presents a substantial federal question.  If there were any doubt, the Windsor decision would lay that to rest.

Smith tried to revive the procreation argument, but in the guise of suggesting that the interest of children in being raised by both of their biological parents justifies the marriage ban. Lucero easily rejected this, explaining: “Oklahoma’s ban on same-sex marriage sweeps too broadly in that it denies a fundamental right to all same-sex couples who seek to marry or to have their marriages recognized regardless of their child-rearing ambitions.  As with opposite-sex couples, members of same-sex couples have a constitutional right to choose against procreation.  But Oklahoma has barred all same-sex couples, regardless of whether they will adopt, bear, or otherwise raise children, from the benefits of marriage while allowing all opposite-sex couples, regardless of their child-rearing decisions, to marry.  Such a regime falls well short of establishing ‘the most exact connection between justification and classification,” which is required where a fundamental right is at stake.

Judge Holmes wrote the next part of the opinion, dealing with Barton/Phillips’ appeal of Kern’s ruling that they lacked standing to challenge the marriage-recognition portion of the Oklahoma marriage amendment because they had sued the wrong defendant.  In its earlier decision in this case, the 10th Circuit had identified the court system – and specifically the county court clerks – as the appropriate defendant because the courts administer the state’s marriage laws through the clerks.  Ordinarily, this ruling would be treated as part of the “law of the case” and not subject to challenge later on.  But Holmes pointed out that there is an exception to the law of the case rule when new evidence is presented to the court that requires reconsidering the issue.  In this case, the new evidence was Smith’s affidavit, filed in response to the amended complaint, in which she swore that her duties did not involve recognizing out-of-state marriages.  This information was not part of the record for the prior 10th Circuit ruling because Smith was not a defendant then, having only been sued in the amended complaint filed after the case was returned to Judge Kern’s court.  This “new” information was dispositive of the standing issue, wrote Judge Holmes, because it was clear that the court could not redress the plaintiffs’ marriage claim by issuing an order to Smith.

So, who could be sued on the marriage recognition question?  Holmes pointed out that in other marriage equality cases, the plaintiffs had sued state officials who had a direct role in marriage recognition.  For example, in several cases the plaintiffs sued state tax officials after they had refused to accept joint tax filings from same-sex couples who had married out of state.  In Tennessee, a couple sued the commissioner of the department of finance and administration after the department turned down their application to participate in a family health insurance plan provided by one of their employers, a state university.  In another case, the defendant was the state registrar of vital records for refusing to issue an appropriate birth certificate for a jointly-adopted child, and in another, the director of the state health department for refusing to recognize the marriage on a death certificate.

The court rejected other arguments made by Barton and Phillips to try to resuscitate their challenge to the marriage recognition part of the Oklahoma marriage amendment.  “No matter how compelling the equitable arguments for reaching the merits of the non-recognition claim,” wrote the court, “its fate must be determined by the law, and the law demands dismissal.  The frustration that may be engendered by the court’s disposition today should be tempered, however.  Although it would not be appropriate to definitively opine on the matter, it is fair to surmise that the court’s decision in Kitchen [the Utah case] casts serious doubt on the continuing vitality” of the recognition ban.

Judge Holmes wrote an interesting and lengthy concurring opinion as well, explaining why the 10th circuit judges agreed with Judge Kern in not relying on “animus” as a basis to strike down SQ711.  Holmes traced in detail the development of the animus doctrine by the Supreme Court as an alternative way of dealing with challenged federal statutes, observing that when the court concludes that a statute disadvantaging particular groups was tainted by animus, it was unconstitutional because animus against a group never suffices as a legitimate ground for legislation. The prime example of this doctrine is Romer v. Evans, the Supreme Court’s 1996 decision striking down Colorado Amendment 2, which prohibited the state from protecting gay people from discrimination.  The Supreme Court concluded that Amendment 2 was motivated by animus because it was extraordinarily sweeping and that it was unprecedented for the state to single out a class of people and deny them all redress from any form of discrimination they might encounter. By comparison, said Judge Holmes, SQ711 was narrowly focused on marriage and was hardly unprecedented, inasmuch as it merely enacted in state constitutional law the definition of marriage that had prevailed in Oklahoma throughout its history.  Gay people had no fewer rights after it was passed than they had before it was passed.  By contrast, Colorado Amendment 2 effectively rendered unenforceable the gay rights law in several Colorado municipalities and appeared on its face to take away from gay people the protection of the state constitution’s equal protection requirement. Holmes also pointed to the example of California Proposition 8, which took away from same-sex couples in California a state constitutional right to marry that had been identified previously by the California Supreme Court.  In the Prop 8 litigation, the 9th Circuit held that Prop 8 was unconstitutional on the theory of Romer v. Evans, an animus case in that it withdrew a previously identified right. Holmes joined with Lucero to make up a majority of the court.

Judge Paul J. Kelly, Jr., dissented in part, arguing that the majority had misapplied Oklahoma precedents in finding that a challenge to the marriage amendment would suffice and there was no problem with plaintiffs having omitted a challenge to the marriage statute from their complaint.  He agreed, however, with the court’s ruling that Judge Kern lacked jurisdiction over the marriage recognition claim.  Because he found that the district court did not have jurisdiction over any of the claims due to the plaintiffs’ lack of standing, he did not address the merits, but he had already made clear in his Utah dissent that he believes that state bans on same-sex marriage do not violate the 14th Amendment.  So far, he is the only federal judge since the Windsor ruling to take that position.

As Utah officials have indicated they will be filing a petition to review last month’s ruling with the Supreme Court, it seems likely that Oklahoma will follow suit.  It would make little sense to petition for en banc review when a cert petition to review a ruling by the same 10th Circuit panel on marriage equality is pending before the Supreme Court.  It would be highly unlikely that the judges of the 10th Circuit would vote in favor of granting rehearing en banc in such circumstances.  But stranger things have happened.

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Key West (Florida) Trial Judge Rules for Marriage Equality

A state trial judge in Key West, Florida, has ruled that the state’s ban on same-sex marriage violates the 14th Amendment of the U.S. Constitution. Judge Luis M. Garcia ruled on July 17 that Monroe County Clerk Amy Heavilin must issue a marriage license to Aaron R. Huntsman and William Lee Jones, who have been a couple for eleven years, on July 22. Garcia wrote that he was giving the clerk until July 22 “in consideration of the Clerk of Court’s anticipated rise in activity, and preparation thereof.”

Attorney General Pamela Jo Bondi, evidently anticipating the ruling, immediately filed a notice that she was appealing the ruling to the Florida 3rd District Court of Appeal. Although the lawsuit was originally filed against Heavilin, the state intervened as a defendant and will be handling the appeal.

The plaintiffs and the defendants agreed that there were no factual issues that required a trial, authorizing the court to issue a ruling on the plaintiff’s motion for summary judgment. The court had allowed two organizations to file legal memorandums defending Florida’s constitutional and statutory same-sex marriage ban, and they had argued that a trial was needed, but Judge Garcia ruled that only the defendants had standing to make that argument.

The state’s first argument was that the plaintiffs’ constitutional claim was blocked by the Supreme Court’s 1972 ruling in Baker v. Nelson, a Minnesota marriage equality case, in which the Court dismissed the appeal, stating that it did not present a “substantial federal question.” Garcia pointed out that after Romer v. Evans, Lawrence v. Texas and United States v. Windsor, he concluded that Baker “is no longer binding and the issue of same-sex marriage has now become a Federal question.” He cited the 10th Circuit’s recent ruling in the Utah marriage case, as well as trial court rulings from Pennsylvania, Oregon, Oklahoma, Michigan and Virginia in support of this conclusion.

Moving to the plaintiffs’ Due Process argument, he found that Supreme Court rulings treat the right to marry as an individual right, and, refuting the state’s argument that plaintiffs were seeking the establishment of a “new” constitutional right, wrote, “The right these plaintiffs seek is not a new right, but is a right that these individuals have always been guaranteed by the United States Constitution. Societal norms and traditions have kept same-sex couples from marrying, like it kept women from voting until 1920 and forbid interracial marriage until 1967.”
Garcia concluded that the fundamental right to marry “encompasses the right to marry a person of one’s own sex,” and thus the Florida marriage amendment and statute are unconstitutional.

Turning to the plaintiffs’ Equal Protection argument, Judge Garcia noted that in U.S. v. Windsor the Supreme Court had ruled that unconstitutional animus was behind the Defense of Marriage Act, and found that the same analysis would lead to the same result regarding Florida’s marriage ban. In Windsor, Justice Anthony Kennedy wrote that “the purpose and effect of the law was to impose a disadvantage, a separate status, and so a stigma upon all who enter into a same sex marriage.” “Similarly,” wrote Judge Garcia, “the purpose and practical effect of [the Florida Marriage Protection Act] is that it creates a separate status for same-sex couples and imposes a disadvantage and stigma by not being recognized under Florida law.”

He also rejected the argument that there is “no evidence of animus towards homosexuals by the proponents of the Florida Marriage Protection Amendment,” finding that “there is ample evidence not only historically but within the very memorandum of law filed by the Amici Curiae.” Here the opponents of same-sex marriage hurt their own case by their outrageous assertions. “The Amici Curiae’s memorandum paints a picture of homosexuals as HIV infected, alcohol and drug abusers, who are promiscuous and psychologically damaged and incapable of long-term relationships or of raising children,” and thus it was rational, they argued, for Florida’s voters to “minimize the deleterious effect of these conditions on public health, safety and welfare by affirming that marriage in Florida remains the union of one man and one woman.” Garcia concluded that “animus has been established.”

He also concluded that the Equal Protection claim should be decided using a “heightened rational basis test,” and that the marriage ban could not survive such a test. Indeed, he wrote, “Only the Amici Curiae has attempted to put forward a rational basis for the unequal treatment of a segment of our society,” and he found their arguments unavailing. Their first basis was to argue that the law “memorialized millennia of history and tradition,” but, as Justice Scalia had pointed out in his dissent in Lawrence v. Texas, “Preserving the traditional institution of marriage is just a kinder way of describing the State’s moral disapproval of same-sex couples.” The other argument was the ban somehow “encourages procreation” among heterosexuals, but Garcia found that there was nothing in the marriage ban “that encourages heterosexual couples to procreate.” The third argument was that the law “encourages a better environment for the rearing of children,” but, Garcia pointed out, quoting from an Ohio marriage recognition ruling from last year, “The only effect the marriage recognition bans have on children’s well-being is harming the children of same-sex couples who are denied the protection and stability of having parents who are legally married.”

Unfortunately, however, the only plaintiffs in this case are two men who wish to be married, and Garcia found that they did not have standing to challenge the Florida statute that bans recognizing out-of-state same-sex marriages, so he limited his ruling to the right to marry. Of course there are several other marriage equality cases pending in Florida courts, both state and federal, and plenty of them have married couples seeking recognition, so that point will eventually be covered in another case.

“The court is aware that the majority of voters oppose same-sex marriage,” concluded Judge Garcia, “but it is our country’s proud history to protect the rights of the individual, the rights of the unpopular and the rights of the powerless, even at the cost of offending the majority. . . All laws passed whether by the legislature or by popular support must pass the scrutiny of the United States Constitution. To do otherwise diminishes the Constitution to just a historical piece of paper.”

The plaintiffs are represented by Florida attorneys Elena Vigil-Farinas, Bernadette Restivo and Thomas L. Hampton.

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Connecticut Supreme Court Rules on Pre-Marriage Equality Loss of Consortium Claim

The Connecticut Supreme Court ruled unanimously on July 16 that a woman whose same-sex partner was misdiagnosed with the wrong kind of cancer when it was too late for effective medical treatment can assert a claim for damages for loss of consortium if she can show that the women would have married had they not been prevented from doing so by state law.  Although the court’s ruling involves the only such claim that has been presented in Connecticut, it may have significance as a persuasive precedent in other states where recent extension of the right to marry to same sex couples might make such claims plausible.  The case is Mueller v. Tepler (SC 18939).

Because the trial judge in this case granted the defendants’ motion to strike the loss of consortium claim as legally deficient, the court sent the case back to the trial court to allow the surviving partner to file an amended complaint making the necessary factual allegations concerning the women’s relationship.

Margaret Mueller and Charlotte Stacey became domestic partners in 1985, living together continuously until Mueller’s death from cancer in January 2009.  In August 2001, Mueller was referred to Dr. Iris Wertheim after testing by her gynecologist showed that she had cancer.  Wertheim performed surgery to remove cancerous tumors, which were then examined by a pathologist, who identified the cancer as a cancer of the appendix. “Wertheim either failed to review the pathology report or misinterpreted its findings,” according to the opinion by Connecticut Chief Justice Chase T. Rogers.  “As a result of this negligence, Mueller was mistakenly diagnosed with ovarian cancer.  Mueller remained under the care of Wertheim until March 5, 2004.  Although the diagnostic error was discovered in April, 2005, Mueller’s cancer had progressed to a stage where some of the tumors no longer could be removed surgically.”  Mueller and Stacey entered into a civil union during 2005 when Connecticut’s new civil union law went into effect, after the negligent medical treatment she had received.

Dying from ovarian cancer, Mueller filed a medical malpractice action against Wertheim and Dr. Isidore Tepler in January 2006, and a subsequent amended complaint asserted a claim for damages for loss of consortium by Charlotte Stacey.  The complaint recited their long history as domestic partners to support the claim that Stacey had suffered the same kind of intangible injuries that a spouse would suffer in like situation.  The defendants filed a motion to strike the loss of consortium claim, arguing that Connecticut law recognizes such claims only for persons who are legally married.  Indeed, the Connecticut Supreme Court had previously rejected a claim brought by somebody who was engaged but not yet married, imposing a “bright line test” for reasons of public policy.  The trial court granted the motion to strike from the bench on February 11, 2008, and granted a motion for judgment against Stacey on the loss of consortium claim on August 20, 2008.   Just weeks later, the Connecticut Supreme Court ruled in Kerrigan v. Commissioner of Public Health that denial of marriage to same-sex couples violated a fundamental right to marry under the Connecticut constitution.   Stacey appealed the denial of her claim.

In responding to the appeal, the defendants were confronted with the changing legal landscape in Connecticut created by the Kerrigan case. Recognizing that Stacey could now raise a claim that denying her the right to seek damages for loss of consortium might be unconstitutional, the defendants raised for the first time the objection that Stacey’s complaint did not allege that the women would have been married had that option been available at the time the alleged negligence occurred in 2001-1004, and thus her complaint was factually insufficient to raise a loss of consortium claim.  The Appellate Court agreed with the defendants, and affirmed the trial court’s judgment against Stacey on this ground.  Stacey then appealed to the Connecticut Supreme Court.  Meanwhile, a jury had decided against one of the defendants and awarded $2.4 million in damages on the medical malpractice claim.  The other defendant had settled the claims against him.

Th Connecticut Supreme Court faced two question on appeal. First was whether the court of appeals should have sent the case back to the trial court to give Stacey a chance to amend her complaint to allege that the women would have been married had Connecticut law allowed same-sex marriage, and second was whether such an allegation by Stacey would defeat the defendants’ motion to strike her claim for loss of consortium.  The Supreme Court answered both questions in the affirmative.

Its answer to the first question depended on complicated issues of appellate practice, boiling down to the unfairness to Stacey in light of the change circumstances presented by the Kerrigan decision of not giving her the opportunity to amend her complaint to make the necessary factual allegations.  Of more significance as a precedent is the court’s answer to the second question, in which it expanded the tort of loss of consortium in Connecticut to include claims by partners who would have been married had the law not prevented it in situations like this one.

“We agree with Stacey’s claim that this could should expand the common-law claim for loss of consortium to members of couples who were not married when the tortious conduct occurred, but who would have been married if the marriage had not been barred by state law,” wrote Chief Justice Rogers.  Rogers explained that the common law includes the “dynamic principle” that a court can develop the law “based on the changing attitudes and needs of society.”  Thus, the court could expand the common-law loss of consortium legal claim to address such changes and, in light of the Kerrigan decision, it was appropriate to do so in this case.

“Specifically,” wrote Rogers, “society has come to accept the view that committed same sex couples who wish to marry are entitled to the same social and legal recognition as committed opposite sex couples who wish to marry” and thus that the court should reevaluate the right restrictions it had placed on loss of consortium claims in the past.  Since marriage laws at the time of the negligence that took place in this case were out of line with public policy “because they did not reflect existing societal attitudes toward same sex relationships and marriage,” “we conclude that it would be both illogical and inequitable to require proof that the plaintiffs were actually married when the underlying tort occurred as a prerequisite to bringing a loss of consortium claim,” wrote Rogers.

Prior Connecticut cases identified three public policies in favor of limiting compensation to married couples: if a couple was not married, their commitment was not strong enough to give rise to a loss of consortium claim, an individual should not be allowed to “marry a cause of action,” and “liability for injury must be delineated at some point for public policy reasons.”  The court had also recognized that such claims “should not be recognized if doing so would impair reasonable expectations and reliance interests in a serious way.”

As to the first of these, the court concluded that the “intangible elements” of a relationship of a committed same-sex couple and a married couple are the same.  “Accordingly, a member of such a couple has the same interest in being compensated for the loss of these ‘intangible elements’ as a member of a married couple.”  The court said that marriage could not equitably serve as the bright line test in this situation where “marriage is not an option.”  Furthermore, it would be illogical in such circumstances to say that recognizing a loss of consortium case in these circumstances involved marrying a cause of action.  Finally, said the court, it would be appropriate to require a person making such a claim to show that they would have been married if not for the legal bar, and that such a marriage would not have violated public policy otherwise.  For example, such a loss of consortium claim could not be made if the reason the claimant could not be married to the injured party was because they were too closely related to be married under state law.  The court found that allowing a same-sex couple to assert a loss of consortium claim would not undermine the public policies that the court had identified in its past cases that had rejected extending loss of consortium claims beyond married couples.

The court noted that the Massachusetts Supreme Judicial Court had reached a different conclusion in a similar case involving same-sex domestic partners in 2008.  In that case the court had seen the issue as an attempt by the plaintiff to achieve retroactive application of its 2003 marriage equality ruling, which it had deliberately stayed for six months in order to give the legislature a chance to make necessary adjustments to state law before the right to marry went into effect.  In Massachusetts the loss of consortium claim was statutory.  The Connecticut court saw the issue differently in evaluating Stacey’s claim, based on Connecticut’s common law, as to which the courts have greater freedom to adjust legal principles in response to social change.

Thus, the court reversed the decision by the Appellate Court, and send the case back to reverse the trial court’s judgment against Stacey on the loss of consortium claim.  The oral ruling on motion to strike the claim would be upheld, but this time with directions to allow Stacey to file an amended complaint making the necessary factual allegations.

The court’s decision won’t affect other Connecticut cases directly because the statute of limitations for such claims is two years, and same-sex marriage has now been available in Connecticut since 2008.  However, the ruling could be a persuasive precedent for courts in other states where marriage became available to same-sex couples much more recently, leaving the possibility that such claims might arise within the period of the statute of limitations.

Stacey was represented on this appeal by attorneys Sean K. McElligott and Joshua D. Koskoff.

 

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New York Philharmonic Summertime Classics – 2014 Edition

The vagaries of the NYP’s schedule limited this year’s edition of Summertime Classics to just two programs performed within the space of one week.  Between the spring tour and the return of the NYC parks concerts, no more time could be spared.  That was a pity, because this is a wonderful format for conductor Bramwell Tobey and those members of the Philharmonic (plus substitutes) who gathered to present two strong programs with great enthusiasm, albeit less polish than might have been achieved with more rehearsal time.

For some reason they decided to make the first program all-Russian, the second being the Independence-Day-Weekend all American-fare one would expect.  Shostakovich’s noisy and tuneful Festive Overture launched the proceedings with appropriate fanfare.  Joyce Yang provided an extroverted essay of Rachmaninoff’s Piano Concerto No. 1, followed after intermission by Modest Mussorgsky’s Night on Bald Mountain (Rimsky-Korsakoff version), Rachmaninoff’s Vocalise, and Tchaikovsky’s Walt of the Flowers (from the Nutcracker Ballet) and Marche slave.  The interpretations were not particularly subtle, the sound level was rather higher than one might hear during the regular subscription season when more rehearsing would be able to achieve more subtlety, but accuracy was good and enthusiasm was high.  I find Rach 1 the least persuasive of his concerti.  It originated as a student work (1890-91), which the composer revised extensively (1917), but the extended first movement does not hold together very well, and the finale is curiously restrained. The slower middle movement has the best music.  Of all the composer’s works for piano and orchestra, it’s the one I would be least interested in hearing, but I thought Yang and Tovey did the best that could be done for it.  (Certainly better than some prior renditions I’ve heard.)

As usual they invited one of the military service bands to participate in the Independent Day Weekend Program, which was titled Star-Spangled Celebration.  This time it was the U.S. Marine Drum & Bugle Corps, last heard from in these parts in 2007.  This is really an ensemble constructed for outdoor performance on the parade ground, it its agglomeration of bugles (soprano, mellophone, baritone, euphonium, contrabass) and percussion (17 players – two on xylophone and all the rest knocking drums and cymbals of various sizes) was really just too loud for Avery Fisher Hall, where the sound is already too brash to begin with.  The sheer noise level of the percussion was so high that they practically drowned out the music – even from this huge brass contingent – during some of their numbers, but their “spit and polish” surely amused the audience, which tittered every time the conductor raised his baton to start a piece and the instrumentalists jerked their instruments into playing position in practiced unison.  The first half of the concert presented just the NYP musicians, beginning with Arturo Toscanini’s recently resuscitated arrangement of The Star-Spangled Banner, Copland’s Fanfare for the Common Man, a medley of tunes from Gershwin’s show Strike Up the Band, and Copland’s Clarinet Concerto.  Mark Nuccio, the NYP’s Associate Principal, was the stellar performer in the Concerto, which struck a nice note of lyrical restraint in the midst of a super-noisy program.

As usual in these proceedings, there was the “Armed Services Salute” during which the combined musical forces, led by Major Brian Dix, performed a medley of the motto tunes of the various U.S. Armed Forces and veterans or current members in the audience stood in turn to be acknowledged, a nice July 4 touch.

And, as usual, some of the best music on the program was by John Phillip Sousa, from whom we heard The Washington Post March, Semper Fidelis, and The Stars and Stripes Forever.  Stars and Stripes gets played twice at these affairs: first conducted by Tovey, then conducted by the director of the military service band with Tovey sitting in with a euphonium in the brass section.

Tovey is an exciting conductor who likes to explore unusual repertory. Would that the Philharmonic would give him more of an opportunity to do so.  I remember when these concerts were first started there were more programs and Tovey was permitted to play more unusual repertory.  The idea, as he said in the program notes and again from the stage, was to present things that are not usually performed at Philharmonic programs.  But the Russian program was composed entirely of music that the NYP has actually played in the recent past, as were the Copland pieces on the second program.  My sense from attending over the years is that management has been restraining him a bit, and perhaps the difficulties imposed by the shorter rehearsal time for these concerts (two different programs prepared within one week, since the NYP’s subscription season ended only the week before with no real break in between) also incentivize against trying anything too challenging to put together.

Ideally, the Summertime Classics should last for at least two weeks, with three different programs spaced out enough for adequate rehearsal.  This is especially important because most of the Philharmonic’s principal players don’t participate and there is more than the usual presence of “substitutes” sitting in, so more rather than less rehearsal would probably be ideal.  That said, however, this year’s rendition was well-played and enjoyable and did a reasonably good job of filling the hall for the hiatus between the end of the subscription season and the launch of the parks concerts.

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Recent Broadway Expeditions: Bullets Over Broadway & A Gentleman’s Guide to Love & Murder

I recently had the opportunity to attend performances of two new musicals playing in Broadway houses: Woody Allen’s “Bullets Over Broadway” and Robert L. Freedman and Steven Lutvak’s “A Gentleman’s Guide to Love & Murder.”  And a fine time was had by all.

I don’t think one would necessarily imagine that “Bullets Over Broadway,” a Woody Allen film of long ago, would readily translate to musical comedy, especially without the active participation of a composer to create original music.  What Allen has done in collaboration with Douglas McGrath and director/choreographer Susan Stroman is to reimagine the piece with period music, so the entire thing has the appropriate flavor and many of the songs are already certified successes of an earlier time with music by a wide range of composers, culminating in a finale based on “Yes! We Have No Bananas” by Irving Cohn and Frank Silver.  The tale is simply told: a struggling young playwright is able to get his script produced by agreeing to cast a mobster’s girlfriend in a leading role so that the mobster will come up with the money.  Complications ensue when the mobster assigns a bodyguard to hover over the production to protect his girl and his investment, and the bodyguard, a creative sort, starts making suggestions of script-changes, eventually bullying the author into totally recasting his show along the lines dictated by the bodyguard.  Zach Braff is the young play-writer, and he does a fine job, but Nick Cordero, who plays the bodyguard, definitely walks off with the show.  Great sets and costumes, lively direction, and certified-success music, although the lack of a single composing team means a certain lack of musical unity to the whole, only somewhat overcome by the common vintage of most of the music.  As with much of Woody Allen’s comedy, the humor is situational and amusing but only rarely laugh-out-loud funny.  I had a good time.

“A Gentleman’s Guide to Love & Murder” is an Edwardian farce loosely based on an old English film, “Kind Hearts and Coronets.”  A young man mourning his recently deceased mother is startled to learn from a strange old lady that his mother was the disinherited daughter of a distinguished royal family, and he is 8th in line to a title and castle.  The young man sets out to reduce the barriers through a combination of knocking off people ahead of him in line, endearing himself to strategically placed members of the family, and even marrying one of the women (despite his prior emotional attachment) to another.  The music is more functional than memorable, although I found that a second go with the recently released cast-recording, which gave me a better shot at hearing and appreciating the witty lyrics by Freedman, left me with a higher opinion of the score than I had at the end of the performance.  The show features a large, enthusiastic and talented cast, with the main focus on Bryce Pinkham as the young social climber and Jefferson Mays playing a dizzying variety of roles, all member of the royal family (male and one female).  Mays is spectacular, as always, channeling at times “I Am My Own Wife,” the farce in which his spot as one of the modern’s theater’s leading drag performers was established.  Lisa O’Hare and Lauren Worsham are excellent as the women vying for the young man’s affections, and Jane Carr is memorable as the strange old lady who sets the man on his course and later steps in to complete the task.  I had an even better time at this show than at the other, not least because the plot is just so much more inventive and entertaining — and fast-moving — that it kept me more closely engaged.  The first act of “Bullets” sagged at times, but there was no let-up at “Gentleman’s Guide.”

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