New York Law School

Art Leonard Observations

1st Circuit Rejects Sex-Reassignment Surgery for Michelle Kosilek

In a startling about-face, the five active judges of the U.S. 1st Circuit Court of Appeals reversed a decision by District Judge Mark L. Wolf and rejected the holding of a three-judge 1st Circuit panel on December 16 in finding that the Massachusetts Department of Correction did not violate the 8th Amendment ban on “cruel and unusual punishment” when it refused to provide sex-reassignment surgery for Michelle Kosilek, a life-prisoner for whom such surgery was recommended as necessary medical treatment by the Department’s own medical staff.

The vote by the “en banc” panel in Kosilek v. Spencer, 2014 U.S. App. LEXIS 23673, 2014 Westlaw 7139560, was 3-2, with the majority from the three-judge panel dissenting vociferously.  The main dispute between the majority and the dissenters was over the appropriate role for the court of appeals in reviewing a district court decision that was heavily reliant on the factual conclusions that Judge Wolf had reached after a lengthy trial.  While claiming it was not doing so, the majority appeared to heavily substitute its own judgment of the facts for Judge Wolf’s, a procedure strongly decried by the dissenters.

Kosilek, formerly known as Robert, is in her mid-sixties and is serving a life term without any chance for parole after having been convicted of first-degree murder of her wife.  Kosilek twice attempted suicide while awaiting trial, and also ineffectively attempted self-castration.  After being imprisoned, Kosilek was diagnosed with gender dysphoria, but her request for hormone treatment and to be allowed to dress and groom as female was rejected by the Corrections Department, which maintained a policy against such treatment for inmates convicted as male and imprisoned in an all-male prison.  Earlier litigation resulted in Judge Wolf ordering the Department to provide hormone therapy for Kosilek and to allow her to live as female.   Mass DOC grudgingly complied, but kept Kosilek in the all-male prison and refused to allow the next step to sex-reassignment surgery. even though its own medical professionals recommended it and believed that Kosilek might attempt to castrate herself or commit suicide if denied the surgery.

Judge Wolf had concluded that the Department’s refusal violated Kosilek’s constitutional rights under the 8th Amendment.  Under Supreme Court precedents, inmates are entitled to receive appropriate treatment for serious medical conditions, and the lower federal courts have generally come to the view in recent years that gender dysphoria is a serious medical condition for which medical treatment must be given.  Little by little, the resistance to starting hormone therapy in prison has been broken down by a series of federal court rulings.  But Judge Wolf’s more recent ruling was the first to order a prison system to provide sex-reassignment surgery.

Mass DOC had advanced various arguments over the years as to why it should not be required to provide the surgery.  It did not generally rely on an expense argument.  Rather, it had quarreled with the view that such treatment was medically necessary, and as the litigation advanced (and with changes in the top personnel in the Department) it came to settle on security concerns as its main argument.  In brief, the concern was that after surgery there was no good place to house Kosilek for the remainder of her life imprisonment.  A post-operative transgender woman in an all-male prison, they contended, would have to be kept in isolation for her own protection against other inmates, and transferring her to the state’s one prison for female inmates was seen as inappropriate because many of the female inmates were victims of sexual abuse who would react very negatively – even be traumatized – by the introduction of Kosilek, a convicted wife-murderer, into their milieu.

Judge Wolf, noting the many and varied defenses advanced by DOC over many years of litigation, found this latest rationale noncredible and cited evidence that another state’s prison system, previously run by the current DOC Commissioner, had managed to house a post-operative transgender woman in the general male prison population without serious security problems, so he ordered the surgery, and the three-judge 1st Circuit panel upheld his order, finding that his factual determinations were supported by the trial record.

Disagreeing in an opinion by Circuit Judge Juan Torruella for the majority, the en banc court disputed several of Judge Wolf’s factual findings.  Courts ruling in inmate medical cases generally have taken the view that prisoners are not necessarily entitled to the treatment they would prefer.   The standard is that they are entitled to appropriate treatment for a serious condition, and where medical experts differ as to what treatment is appropriate, prison authorities can basically select a treatment that has the endorsement of a credible medical expert.

In this case, Wolf received testimony from a variety of medical experts, some of whom opined that sex-reassignment surgery was  medically necessary for Kosilek, others disagreeing.  In light of this, the court decided that it was error to find DOC’s refusal to provide the surgery constitutionally deficient.  The constitution forbids prison officials from being “deliberately indifferent” to serious medical needs.  In this case, the court pointed out, DOC was providing treatment, including psychotherapy and hormone treatment, and was allowing Kosilek to dress and groom as female, as a result of which there was testimony in the record that her mental state had improved.  Furthermore, the court held that Judge Wolf erred in rejecting the DOC Commissioner’s testimony about the security concerns that would be raised by housing Kosilek after surgery. The court also rejected Wolf’s conclusion that DOC’s resistance responded to political pressures and adverse press comment about the case.

The dissenters argued that the majority had overstepped its ruling as a reviewing court in substituting its view of the facts for Judge Wolf’s.  In particular, dissenters pointed out that after its own medical experts endorsed the surgery, DOC had sought out a “second opinion” from a doctor who was known to oppose such procedures, thus producing the alleged “split” in medical opinion relied upon by the majority.  While the majority had insisted that these cases are to be decided on a case-by-case basis and that it was not categorically ruling out the possibility that sometime in the future a trangender inmate might be found to be constitutionally entitled to sex-reasignment surgery, the dissenters, pointing to the security holding, were dubious about this.  Of course, the specific concern about housing Kosilek in a female prison due to her particular crime would not arise in a case involving a transgender prison who was imprisoned for a different crime.

Given the national notoriety attending the case and the numerous amicus parties who filed briefs in support of Kosilek’s claim, including the ACLU’s National Prison and LGBT Rights Projects and Gay & Lesbian Advocates & Defenders, it is possible that a petition for certiorari might be filed with the Supreme Court, which has never previously ruled on an 8th Amendment medical treatment claim by a transgender inmate.  Lead counsel arguing for Kosilek before the 1st Circuit was Joseph L. Sulman.

Legal Issues | Comment

9th Circuit Rejects Challenge to LA Condom Ordinance

A unanimous three-judge panel of the U.S. 9th Circuit Court of Appeals has rejected a constitutional challenge to a voter-initiated ordinance that compels producers of adult films to require their actors to use condoms during scenes of anal or vaginal intercourse while filming in Los Angeles  County.  The December 15 ruling affirmed a decision by District Judge Dean D. Pregerson, who actually struck out parts of the ordinance before denying a pretrial motion by film industry plaintiffs to enjoin its operation pending a final ruling on the merits.  The case is Vivid Entertainment v. Fielding, 2014 U.S. App. LEXIS 23560 (9th Cir., Dec. 15, 2015).

It was Judge Pregerson’s denial of the injunction that the plaintiffs appealed, while proponents of the ordinance objected to his striking out of various portions.

Los Angeles County voters approved the ordinance in November 2012, and it went into effect on December 12 of that year.  As originally enacted, it also required the use of condoms during oral sex scenes.  The ordinance required producers of “adult films” to pay a registration for a permit to film, conditioned on proof that specified employees have completed a county-approved training program about blood-borne pathogens, and to comply with various other requirements, including the use of condoms during filming. Surprise inspections during filming were authorized, and the measure also provided for suspension of permits and shutting down filming if producers were not in compliance.

Judge Pregerson agreed to block enforcement of the portions he specified — such as the requirement that condoms be used during oral sex scenes — and narrowed the definition of “adult films” to be limited to those in which a penis penetrating a vagina or an anus were being filmed.  He also struck out the requirement that producers pay a fee to get the permit, and limited enforcement powers to some extent.   The judge’s editing accorded with a severability provision in the ordinance.

The judge had allowed the proponents of the ordinance to intervene in the lawsuit, and they objected to the revisions.  The film industry plaintiffs objected to any portion of the ordinance being allowed to go into effect.  The county government did not appeal the ruling.

The plaintiffs contended that their First Amendment rights to freedom of expression were being unconstitutionally abridged by the ordinance, contending that it was a content-based regulation of speech that was not supported by a compelling state interest.  The district court, and the court of appeals, concluded that although regulation of the adult entertainment industry is generally a content oriented regulation of speech, the regulation of sexually-oriented speech is subject only to heightened scrutiny, not strict scrutiny, when the “primary motivation” for the regulation is to “prevent secondary effects.”  The court concluded that this was the appropriate test in this case.

The purpose of the ordinance, said the court, was to prevent sexually-transmitted diseases, particularly HIV, during the production of adult films, and responded to some news reports about HIV infection among adult film actors.  Thus, the voters were not trying to interfere with the erotic “message” of the film-makers, but rather to protect the performers.

The plaintiffs had argued that “the condom mandate amounts to a complete ban on their protected expression,” but the court disagreed.  Wrote Judge Susan P. Graber for the panel, “Plaintiffs’ argument presupposes that their relevant expression for First Amendment purposes is the depiction of condomless sex.”   In support of this argument, the Plaintiffs contended “that condomless sex differs from sex generally because condoms remind the audience about real-world concerns such as pregnancy and disease,” so that “films depicting condomless sex convey a particular message about sex in a world without those risks.”  The court found, however, that “whatever unique message Plaintiffs might intend to convey by depicting condomless sex, it is unlikely that viewers of adult films will understand that message.  So condomless sex is not the relevant expression for First Amendment purposes; instead, the relevant expression is more generally the adult films’ erotic message.”

Alternatively, the court suggested that if it were found that “special effects could be used to edit condoms out of adult films, that would provide yet another reason to apply intermediate scrutiny” instead of strict scrutiny in evaluating the plaintiffs’ First Amendment claim, since it would provide an alternative way for the film makers to convey an erotic message about condomless sex.

The court found that the measure survived intermediate scrutiny because it constituted a “de minimis” restriction on speech, imposed for a legitimate governmental purpose.  “The requirement that actors in adult films wear condoms while engaging in sexual intercourse might have ‘some minimal effect’ on a film’s erotic message,” wrote Judge Graber, “but that effect is certainly no greater than the effect of pasties and G-strings on the erotic message of nude dancing,” alluding to restrictions on nude dancing in public venues that have been upheld against similar constitutional challenges by the Supreme Court.

Although the plaintiffs accepted the contention by supporters of the ordinance that the government had a legitimate interest in preventing the spread of sexually-transmitted diseases, they argued that the ordinance was not sufficiently “narrowly tailored” to achieve this.  The main argument was that a regime of testing actors was sufficient to avoid transmission, and that a broad condom mandate went further than necessary to achieve the government’s legitimate objectives.  They pointed out that the industry has voluntarily adopted a testing regimen, including a requirement that actors present a certificate of a recent negative test for various STDs before filming can commence.

The district court received evidence, however, that the rate of sexually-transmitted disease among adult actors in L.A. County was larger by a statistically significant amount than the transmission rate among the general public, tending to counter the plaintiffs’ arguments that their voluntary efforts were effective.  The court of appeals found that the district court’s decision that the evidence showed the plaintiffs were unlikely to succeed on the merits of their constitutional claim was not an abuse of discretion by the district judge.  That is the standard for reviewing a district court’s grant or denial of injunctive relief before a full trial on the merits.

The court of appeals also found that the remaining portions of the ordinance’s enforcement provisions, including the licensing requirement, with its educational component, were clearly focused on the legitimate public health interests behind the ordinance.  By striking out the provision allowing for the government to suspend or revoke licenses without any hearing process, the district judge had left “little, if any, discretion to government officials,” and, once again, the court found the court had not abused its discretion by refusing to enjoin the remaining provisions.

Thus, the court concluded, Judge Pregerson did not abuse his discretion by holding that the invalid portions of the ordinance were severable from the remainder, or by denying a preliminary injunction against the condom and permitting requirements.

When it comes to the issue of HIV, the district court’s ruling in this case predated recent developments concerning new treatments that sharply reduce the likelihood of HIV transmission through condomless sex.  However, the ordinance is broadly-written to embrace all sexually-transmitted pathogens, not just HIV, so it is uncertain that this new evidence would produce a significantly different result when the district court conducts a trial on the merits.


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European Justice Court Rules on Gay Asylum Cases from the Netherlands

Ruling on appeals by three gay people from Africa seeking asylum in the Netherlands, the European Court of Justice held that it was a violation of European human rights law for officials attempting to determine whether the applicants are gay to base their questioning solely on stereotypes about homosexuals, to carry out detailed questioning as to the sexual practices of the applicants, to require applicants to submit to “tests” to establish their homosexuality or to provide evidence such as films of the applicants engaging in homosexual conduct.  Furthermore, said the Court, it is inappropriate to decide that applicants are not credible merely because they did not declare their sexual orientation in their first encounter with authorities.  The ruling is expected to produce significant changes in how national immigration officials in Europe deal with gay asylum applicants.

The court preserved the anonymity of the applicants in reporting its decision, so the case is titled A, B & C v. Staatssecretaris van Veiligheid en Justitie, listing as defendant the Dutch agency that processes asylum claims.  The opinion was announced on December 2, 2014.

Asylum claims by refugees are governed by a complex body of international and national law.  The Convention relating to the Status of Refugees, signed in Geneva in 1951 as one of several “Geneva Conventions” that relate to such issues as the treatment of wartime prisoners and the populations of countries subject to military occupation, uses the term “refugee” to refer to somebody who does not want to stay in the country of which they are a citizen “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion” and are seeking refuge in another country where they do not fear persecution on those grounds.  There is now a substantial consensus among parties signatory to the Convention that “particular social group” can include sexual minorities, such as lesbian, gay, bisexual and transgender people.

The European Union has adopted its own Directive governing compliance with the Geneva Convention on Refugees, which adopts the same definition of refugee, and specifies how individuals seeking asylum should be evaluated by member nations.  Member nations themselves have adopted laws and regulations on this issue.  In general, the burden is on somebody who is applying for asylum to show that they fit into one of the categories, which can be difficult for gay asylum seekers when government officials are skeptical about their claims of being gay.  Their cases can become hopeless when, having spent their lives hiding their sexuality in their home countries, they are fearful about revealing this information to the first government officials they meet in their intended place of refuge.  As a result, in some cases they make up stories about other forms of persecution and only later, upon becoming comfortable with the idea of putting their sexuality forward as a ground for asylum, do they raise this issue, creating credibility problems due to the conflicts with their prior stories.

Even setting that aside, applicants may have a difficult time establishing that they are gay as new arrivals in a country if they don’t speak the language, don’t know anybody who can vouch for them, lack documentation from their home country that could establish their sexuality, and confront officials who are inclined to doubt anybody who does not strike them as stereotypically gay.  Matters are complicated by the occasional case where somebody pretends to be gay in order to win asylum and is found out, which encourages asylum officials to be even more skeptical about undocumented claims.

In the cases before the European court, for example, applicant A was deemed not credible by authorities on his first application, but filed a second application, “stating that he was prepared to take part in a ‘test’ to prove his homosexuality or to perform a homosexual act to demonstrate the truth of his declared sexual orientation.”  The authorities rejected his second application, stating that the credibility of his declared sexual orientation had not been established and that it was “not appropriate to rely only on the declared sexual orientation of the applicant for asylum without making any assessment of the credibility of that orientation.”

Applicant B was rejected on the ground that his statements about his homosexuality “were vague, perfunctory and implausible.”  The government asserted that because he came from a county where homosexuality was “not acceptable,” he should have been able to “give more details about his emotions and his internal awareness of his sexual orientation.”  Applicant C’s first application, which was rejected, stated grounds other than homosexuality.  He second application raised homosexuality and ran into the credibility problem of not having raised it the first time.  In support of his application, C gave authorities a video showing him engaged in “intimate acts with a person of the same sex” to try to prove his homosexuality, but he was rejected anyway when he was unable to answer various questions about how he had become aware of his homosexuality and about Dutch organizations for gay rights.

The administrative appellate process in the Netherlands provided no relief for these applicants, but ultimately a court identified as the Raad van State, concerned about the process for determining the bona fides of allegedly gay asylum applicants, referred the question to the European Court of Justice, expressing concern about how such an investigation could be carried out consistent with the applicable international and national laws.

The Court confirmed that European Union states are allowed to require some sort of confirmation of claims that asylum applicants are gay, so there had to be some sort of assessment process as to credibility.  However, the Court found it inappropriate for authorities to decide these cases on some categorical basis, requiring instead that decisions be made on a case-by-case basis.  In particular, said the Court, “While questions based on stereotyped notions may be a useful element at the disposal of competent authorities for the purposes of the assessment, the assessment of applications for the grant of refugee status on the basis solely of stereotyped notions associated with homosexuals does not, nevertheless, satisfy the requirements” of the legal provisions governing the decision-making process, “in that it does not allow those authorities to take account of the individual situation and personal circumstances of the applicant for asylum concerned.”  Thus, the inability of an applicant to answer questions that an assessor would believe would be easily answerable by a genuinely gay person should not necessarily lead to an adverse credibility determination, since it relied upon stereotypical assumptions about the behavior and knowledge of gay people.

Furthermore, the Court declared that fundamental human rights protected under European law should preclude questioning about the sexual practices of applicants, as violating the Charter protection for private and family life.  Assessors should not accept evidence such as videos of people having sex, because “the effect of authorizing or accepting such types of evidence would be to incite other applicants to offer the same and would lead, de facto, to requiring applicants to provide such evidence.”

Most importantly, the Court rejected the idea that somebody’s credibility was automatically compromised when they didn’t raise their sexual orientation at the first opportunity in the asylum process.  Said the Court, “having regard to the sensitive nature of questions relating to a person’s personal identity and, in particular, his sexuality, it cannot be concluded that the declared sexuality lacks credibility simply because, due to his reticence in revealing intimate aspects of his life, that person did not declare his homosexuality at the outset.”  Thus, the requirement of the Directive that applicants raise relevant grounds for asylum “as soon as possible” should be “tempered by the requirement imposed on the competent authorities. . . to conduct the interview taking account of the personal or general circumstances surrounding the application, in particular, the vulnerability of the applicant, and to carry out an individual assessment of the applications, taking account of the individual position and personal circumstances of each applicant.”

The Court’s ruling is particularly timely as various nations in Europe are facing a sharp increase in asylum applications from gay refugees from Africa, the Middle East and Russia, many of whom might have great difficulty providing the kind of documentation that is routinely available for political or religious dissenters who are fleeing with family and compatriots.

The Court’s opinion lists attorneys N.C. Blomjous as counsel for A and C. Chen as counsel for B, but does not identify counsel for C.  Six member nations submitted arguments to the Court, as did the European Commisson and the United Nations High Commissioner for Refugees.  The decision was rendered unanimously by a Grand Chamber of the Court consisting of thirteen judges.

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ASO Triumphs with Obscure Schnittke Cantata – Nagasaki

I’ve had such a busy semester with legal developments that I haven’t been posting about the concerts, opera and theater that I’ve been attending for the Fall 2014 season.  A big stack of programs has accumulated, and sometime during the next few weeks I hope to catch up with some retrospective postings, since I’ve attended plenty of events that are worthy of comment.

But I decided to make an exception and post today about the extraordinary concert I attended last night at Carnegie Hall.  The American Symphony Orchestra directed by Leon Botstein presented a program titled “Requiem for the 20th Century.”  The 20th century is one that many people will say can never really rest in peace because of all the horrific things that happened during it, the millions slaughtered in wars, felled in epidemics and natural disasters, and so forth.  That aside, Botstein decided to put together three works responsive to that difficult century, and it made for a highly unusual and absorbing program.

The only purely instrumental piece on the program was the 6th Symphony by Ralph Vaughan Williams (1872-1958), a British composer whose active career spanned the first half of the century and then some, since he was composing until the last year of his life.  The 6th Symphony was his first major work to be premiered after World War II, having been written during 1944-47.  It received its first performance by Sir Adrian Boult and the BBC Symphony Orchestra in April 1948.  The American Symphony Orchestra’s founder, Leopold Stokowski, recorded the piece with the New York Philharmonic in 1949, and that gripping performance has never been out of the catalogue very long since then.  (The most recent CD coupling I know pairs it with a recording by Dmitri Mitropoulos and the NYP of the 4th Symphony.)   V-W eschewed the idea that this was a “war symphony” or directly related to the war. Although he wrote his share of program music, he considered this symphony to be purely abstract music, but listeners and commentators were not willing to accept this, because its unusual structure suggested all kinds of extra-musical images.  The opening movement is noisy, turbulent, churning, although interspersed is a noble march-like recurring theme that sounds like a slightly more modern version of an Elgar Pomp and Circumstances march.  The scherzo, which comes third, features a jaunty saxophone solo.  The second movement is an ominous slow march that gathers tension several times and can’t help but invoke military images in the listener.  The finale, titled Epilogue (a favorite designation by V-W), is marked Moderato but feels slower, perhaps because of its evanescent tonal quality as it just sort of fades away at the end, not with the tragedy of Tchaikovsky’s Pathetique or the dying gasps of Mahler’s 9th, but more like a gentle ascent to heaven, perhaps the best comparison being a much quieter version of the ending of Mahler’s 3rd Symphony.  V-W gave some hint of what he was trying for by quoting some Shakespeare: “We are such stuff as dreams are made on, and our little life is rounded [by] sleep.”

I thought last night’s performance was exemplary in every respect.  Botstein set perfect tempi and the orchestra achieved miracles of virtuosity.  I can’t recall the ASO ever playing better than it played in the V-W 6th.  My concert-going companion remarked on this at intermission, and I totally agreed.  In fact, the last time I thought they had played this well was several years ago when they performed Vaughan Williams’s 4th Symphony in a program dedicated to British music between the world wars, back in the days when they were performing at Avery Fisher Hall.  Botstein and this orchestra have a real flare for middle-period V-W.  I hope we can expect Symphonies 3 and 5 from them sometime in the future.  I consider the 5th Symphony among V-W’s greatest achievements, but it is rarely played in the U.S.

Second up on the program was Gyorgy Ligeti’s Requiem.  Ligeti (1923-2006) was one of a handful of composers who became dominant figures in the second half of the 20th century, bursting through to the general public’s consciousness when filmmaker Stanley Kubrick used excerpts from his Requiem in the soundtrack of the film “2001 – A Space Odyssey.”  It was interesting to hear the entire piece, which doesn’t get played very much, probably due to its great challenges to both listeners and performers.  Ligeti went through phases where his music became more or less listener-friendly as he became intrigued with particular modernistic devices.  This piece emerged in 1965 during his extreme modernistic phase, featuring tone clusters and deep buzzing sounds from the chorus, and tortured lines with great interval leaps for the mezzo and soprano soloists.  The text he selected was a portion of the Latin mass for the dead: Introitus-Requiem aeternum; Kyrie; De Die Judicci Sequentia (Dies Irae etc.), Lacrimosa.  However, because of the nature of his musical setting, the text was only intermittently understandable.  The point of this piece is that the voices are treated like instruments, the text provides inspiration for the composer, but the listener could just as well ignore the actual words and follow the dramatic-emotional path of the music.  The performance sounded like it might have used a bit more rehearsing, as there were a few tentative spots, but overall it was highly effective.  The vocal soloists, soprano Jennifer Zetlan and mezzo Sara Murphy, coped skillfully with the extremes called for by the music, and the Bard Festival Chorale, prepared by James Bagwell, seemed entirely caught up in the challenge of Ligeti’s demanding vocal parts.

Finally, the great discovery of the program: Alfred Schnittke’s cantata, Nagasaki.  I was unaware of this piece before first hearing about this program, and had no idea what to expect.  I’ve got a fair number of Schnittke compositions in my music collection, but I have rarely heard anything by him performed live in concert.  The NYP has performed a handful of things in the time I’ve been a subscriber.  I’ve always found him to be a difficult composer to pin down, because over time his style of music went through many changes.  My biggest complaint in the past has been that I’ve found many of his works to be essentially incoherent as musical statements – elusive, without any strong apparent structure, and lacking in any kind of memorable melodic invention.  Nagasaki came as a complete surprise.  Schnittke (1934-1998) wrote it as a “graduation exercise” set by his teacher Evgeniy Golubev during his final year at the Moscow Conservatory in 1958.  Golubev assigned Schnittke to write a piece using a poem by Valdimir Sofranov about the bombing of Nagasaki at the end of World War II.  Schnittke cut up the original poem a bit and interpolated verses by two other authors to create a five-movement work for chorus and large orchestra with a solo mezzo-soprano part in the fourth movement.  As a student work it is quite derivative, and it predates all of the stylistic experimentation that characterizes his mature work.  In some ways it seems reminiscent of various early and mid-20th century composers.  Shostakovich, of course, as well as Prokofiev (especially Prokofiev of the Alexander Nevsky film score).  The final movement had, to me, a strong flavor of Miklos Rozsa, the Hungarian-born composer who made his greatest contributions as the write of epic Hollywood film scores.  I’ve read some comments on-line suggesting Orff’s Carmina Burana as an influence, but I don’t hear that at all.

In any event, I thought this was a tremendous accomplishment for a conservatory student and was in some ways the most interesting and absorbing piece on the program.  This is not to say that it is “better” in any respect than the V-W symphony or the Ligeti Requiem, each a masterwork in its own way.  The cantata is so different in style and execution as to make any such comparison unnecessary.  But it was a work that stood on its own.  I was impressed with the range of its moods, the skillful use of the orchestra and voices (especially percussion effects), and the strong melodic gifts that I don’t recall from his later pieces.  In some ways it sounds like Soviet Realism poster music, such as the Shostakovich 11th Symphon;, in some ways it reminded me of the Weinberg symphonies that have been revived lately (mainly on recordings).  Some post-concert checking showed that there is one commercial recording, by BIS as part of their on-going Schnittke series, and it is  currently out of stock at most distributors.  My first attempt to order a copy from a third-party distributor on Amazon brought me an email stating my order had been cancelled because the vendor who listed it had failed to notify Amazon that it was out-of-stock.  I just ordered from another third-party vendor on Amazon and have my fingers crossed, because I would like to get a chance to become better acquainted with the piece.

Botstein, mezzo Sara Murphy, the Bard Festival Chorale (James Bagwell, director) and the ASO played their hearts out in this piece.  It was like they really believed in it, were delighted with their discovery, and were eager to share it with an audience for whom it would be a genuine discovery.  This was a “wow” performance, and I wish there were some way that they could release the concert-recording (the ASO records their Carnegie Hall concerts for internal use and some on-line distribution) on a commercial CD.  Or perhaps interest a record company in doing a studio recording.  The work deserves exposure.

Leon Botstein generally wins acclaim for his imaginative programming and brickbats for his conducting, but I thought last night that he had achieved truly fine performances of three difficult pieces and I could not find any fault with his conducting on this occasion.  Indeed, he had the entire large ensemble, with chorus and soloists, playing at the highest international level, and he seems to have inspired everybody involved to perform above and beyond expectations.


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Surprising Development in Florida Marriage Equality Case

When U.S. District Judge Robert Hinkle ruled on August 21 in Brenner v. Armstrong and Grimsley v. Armstrong that Florida’s ban on same-sex marriage was unconstitutional, he stayed his preliminary injunction until January 5, 2015, to give the state a chance to appeal to the 11th Circuit.  He indicated that if the state wanted to have the decision stayed longer until the Court of Appeals could decide on the merits, it should ask the Court of Appeals for a longer stay.  The state filed its notice of appeal, accompanied by a Motion to Extend Stay of Preliminary Injunction Pending Appeal and for Expedited Treatment of This Motion.”

This afternoon, December 3, a three-judge panel of the 11th Circuit issued a terse order, as follows:  “Appellants’ request for expedited review of the Motion is granted.  Having reviewed and fully considered the Motion, the parties’ briefs, and the orders issued by the District Court in the proceedings below, the Court hereby denies Appellants’ Motion.  The stay of preliminary injunctions entered by the District Court expires at the end of the day on January 5, 2015.”

This means, implicitly, that the 11th Circuit panel has concluded that the factors normally considered in deciding whether to stay a ruling pending appeal do not balance out in support of the state’s motion.  And, of course, the first and most important factor is whether the Appellant is likely to prevail on the merits of its appeal.  They would also consider the harms to the plaintiffs if the district court’s order is stayed further, and the harms to the state if the injunction is allowed to go into effect.  And, of course, they would ask whether such harms, if any, are irreparable by after-the-fact money damages.  Finally, they would consider the public interest in granting or denying a stay.  The district court had more or less resolved these questions against the state, but was willing to give the state the benefit of a chance to get an appellate panel to consider them as well before the decision goes into effect.  This means that unless the state is able to get a stay issued by a “higher authority” — the U.S. Supreme Court — marriage equality would go into effect in Florida on January 6, 2015, without a ruling on the merits by the 11th Circuit.  This seems like a rather strong signal by the 11th Circuit about how they think a merits ruling from a panel of their court would turn out.

On the other hand, this may be a high-stakes game of “chicken” being played by the 11th Circuit panel.  They may be kicking the question of a stay to the Supreme Court (assuming the state will petition for one, which would seem consistent with Attorney General Bondi’s position on these cases) on the theory that the national momentum has been going in one direction, with the notable exception of the 6th Circuit, and that presentation of a stay application to the Supreme Court coming out of a circuit that has not yet ruled on the merits of marriage equality will require the Court to show its hand, perhaps a bit prematurely, in light of the pending petitions for certiorari from the 6th Circuit and Louisiana decisions.

We are now running into interesting timing issues in the national campaign for marriage equality.  The Florida stay expires at the end of business on January 5.  On January 9, the 5th Circuit is scheduled to hear oral arguments in the Texas and Louisiana cases and, perhaps, the Mississippi case as well, since the state has noticed its appeal there.  Later in January, one expects the Supreme Court will be considering in conference the certiorari petitions from the 6th Circuit states (Ohio, Michigan, Kentucky, Tennessee) and Louisiana (petition filed by Lambda Legal on behalf of the plaintiffs).  If the Supreme Court grants cert in one or more cases, there is the question whether the cases can be argued and decided during this term of the Court (by the end of June 2015), or whether by the time the Court makes a cert decision the argument docket for this term will be filled and the cases will be scheduled for argument in the fall?  If the former eventuates, then the 5th and 11th (and most likely the 8th) Circuits may never have to rule on marriage equality, because they would probably put all appeals on hold while waiting for a ruling by the Supreme Court.

If the Supreme Court refuses to stay the Florida injunction, that would send a clear signal to the district judges in Alabama and Georgia who are now sitting on summary judgment motions in marriage equality cases, that if they rule in favor of plaintiffs, there is no need to stay their rulings, because the 11th Circuit and the Supreme Court are unlikely to stay them.  So marriage equality might spread in the 11th Circuit would ever achieving a ruling from the Court of Appeals.  (Wishful thinking?  It’s a pretty conservative circuit.)  And if the Supreme Court were to grant the Louisiana cert petition, the 5th Circuit would probably refrain from ruling in the cases pending there.

Perhaps the worst scenario for getting real progress expeditiously would be if the Supreme Court doesn’t grant a cert petition until too late to schedule arguments this spring.  Then we all play the waiting game until next fall and might not see a final marriage equality ruling until sometime next winter, most likely early in 2016.  And it is possible that none of the remaining circuits would rule on pending appeals so long as a case is scheduled for argument before the Supreme Court.

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The Dominoes Continue to Fall as Federal Courts Strike Arkansas and Mississippi Marriage Bans

On November 25, 2014, U.S. district court judges in Arkansas and Mississippi issued rulings declaring unconstitutional the constitutional and statutory bans on same-sex marriage in those states.  In Arkansas, District Judge Kristine G. Baker stayed her ruling pending an appeal to the 8th Circuit Court of Appeals by the state, but the situation was complicated by another marriage equality case pending before the state’s Supreme Court, which may render this ruling superfluous depending on timing.  In addition, Attorney General Dustin McDaniel, a Democrat who personally supports same-sex marriage but who had claimed to be defending the ban as his duty, indicated that he would confer over the Thanksgiving holiday with the incoming Republican Attorney General, Leslie Rutlage, an opponent of same-sex marriage, before deciding whether to appeal.  In Mississippi, District Judge Carlton W. Reeves granted the state a two-week stay during which it may seek a further stay pending appeal from the 5th Circuit Court of Appeals, where marriage equality cases from Texas and Louisiana are scheduled for argument on January 9.  There was little doubt that the state would immediately seek a stay from the 5th Circuit.

Both of the judges who ruled on November 25 were appointed by President Barack Obama and seated during his first term of office, Judge Reeves in 2010 and Judge Baker in 2012.

Although dozens of federal district judges have issued rulings in similar cases over the past year, neither of these judges skimped on their opinions, exploring both procedural and substantive issues in depth, as their opinions will likely be appealed to circuit courts that have yet to weigh in on the questions presented.  Both judges were undeterred by the recent ruling by the U.S. Court of Appeals for the 6th Circuit, rejecting challenges to the marriage bans in Ohio, Michigan, Tennessee and Kentucky.  Both judges were not persuaded by 6th Circuit Judge Jeffrey Sutton’s reliance on the Supreme Court’s 1972 summary affirmance of negative ruling by the Minnesota Supreme Court as a currently binding precedent, finding that it had been superseded by more recent developments in the Supreme Court, and emphasizing that the overwhelming majority of federal courts considering this issue over the past year have found Baker to be no impediment to striking down the bans.

Both judges were writing their opinions against the obstacles of circuit court rulings that preluded certain doctrinal moves.  In the 8th Circuit, a 2006 decision rejecting a challenge to Nebraska’s constitutional amendment included language indicating that the court believed the amendment would survive rational basis review, which that court deemed the appropriate standard for evaluating claims of sexual orientation discrimination.  Undeterred, Judge Baker followed the lead of 9th Circuit Judge Marsha Berzon, whose concurring opinion in the Nevada/Idaho marriage ruling of October 7 argued that bans on same-sex marriage are a form of sex discrimination, and thus merit heightened scrutiny.  In the 5th Circuit, prior precedents also reject heightened scrutiny for sexual orientation discrimination claims.  This did not deter Judge Reeves, who found that the Mississippi marriage ban fails even the usually deferential rational basis test.

Both judges also ruled against the same-sex marriage bans under an alternative Due Process theory, finding that Supreme Court precedents recognize a fundamental constitutional right to marry as an individual right of every citizen, subjecting to strict scrutiny any attempt by the state to interfere with the choice of marital partner.  A law that does not survive rational basis review or heightened scrutiny cannot, by definition, survive strict scrutiny, the most demanding level of judicial review.

Both judges were also careful to address various procedural and jurisdictional arguments raised by the state defendants, systematically and respectfully analyzing and then rejecting them.  Judge Baker confronted a particularly complicated argument, as the Arkansas Supreme Court held oral arguments less than a week earlier in the state’s appeal of a trial judge’s marriage equality ruling from earlier in 2014, and there is some argument that federal courts should abstain from deciding issues that are pending in the state courts.  Judge Baker demonstrated that there were distinctions between the cases that counseled against federal court abstention, not least that the plaintiffs in the federal case were not participating in the state case.  Both judges emphasized the duty of federal courts to deal with federal constitutional claims when they are appropriately presented by plaintiffs have meet the standing requirements.

The plaintiffs in the Arkansas case had presented Judge Baker with a panoply of constitutional arguments, and she carefully picked among them, rejecting — as have some other judges in recent decisions — the argument that the state’s failure to recognize marriages contracted out of state violates the constitutional right to travel between the states, as well as rejecting the plaintiff’s sexual orientation discrimination claim.  However, she found that while the plaintiffs had met all the tests required to obtain an injunction against the state, the Supreme Court’s issuance of a stay in January in the Utah case set the path for her response to the state’s request in this case to keep the ruling from going into effect while the state appeals.  However, she wrote, “If no timely notice of appeal is filed, this injunction shall take immediate effect upon the expiration of the time for filing a notice of appeal.”

Judge Reeves’ decision was substantially longer than Judge Baker’s, because he decided, despite 5th Circuit precedent, to take on the question whether sexual orientation discrimination claims should be subjected to heightened or strict scrutiny.  One suspects this was a reaction to extraordinary briefing on the question provided by the plaintiffs and their amici.  As a result, Reeves’ opinion includes within it a virtual monograph on the history of anti-gay discrimination in Mississippi, leading him to explicitly counter the suggestion by some judges that gay marriage litigants don’t need the assistance of the federal courts since they can obtain the right to marry through the ordinary political process.  While that might be possible someday in Michigan, for example, wrote Reeves, it seemed unlikely in Mississippi.

“A common argument against homosexual equality is that the gay and lesbian community is so popular that it needs no judicial protection from the will of the majority,” wrote Reeves.  “In this vein, the U.S. District Court for Nevada, which upheld that state’s same-sex marriage ban until the Ninth Circuit reversed, found that ‘the public media are flooded with editorial, commercial, and artistic messages urging the acceptance of homosexuals.’  He noted that the President now supports same-sex marriage.  But pointing to statements of popular support, those of individual politicians, or even the national ‘climate’ is not the standard.  The standard is whether homosexuals in Mississippi have ‘the strength to politically protect themselves from wrongful discrimination.’  Much of that discrimination, of course, happens at the state and local levels, far from celebrities and national politicians.  On this question, it can only be concluded the Mississippi’s gay and lesbian community does not have the requisite political strength to protect itself from wrongful discrimination.”  He noted particularly that the Mississippi anti-gay marriage amendment passed by the largest margin of any of the numerous such measures that appeared on state ballots in 2004, as well as the recent enactment of a measure that “was perceived to condone sexual orientation discrimination” by allowing businesses to deny their services based on the owners’ religious objections.

Thus, argued Reeves, if he were free from binding 5th Circuit precedent, he would apply heightened scrutiny to the plaintiffs’ sexual orientation claim, and he suggested that the 5th Circuit should reconsider its precedent.  He would not take the alternative approach of treating this as a sex discrimination case in order to apply heightened scrutiny because, as he pointed out, it was unnecessary to do so.  He was invalidating the ban using strict scrutiny under the Due Process Clause, and he also found that none of the state’s articulated justifications for the ban even met the less demanding rational basis test for an Equal Protection analysis.

Both Reeves and Baker, countering contentions by the state that U.S. v. Windsor was a federalism ruling that support the state’s right to ban same-sex marriages, invoked Justice Scalia’s dissents in Windsor and Lawrence v. Texas, in which one of the most conservative justices on the Supreme Court asserted that the reasoning of the Court in those cases would create an argument in support of a constitutional right for same-sex couples to marry.

“Today’s decision may cause uneasiness and concern about the change it will bring,” he concluded.  “But ‘things change, people change, times change, and Mississippi changes, too,” he wrote, quoting the former segregationist governor, Ross R. Barnett, Jr., who he commented “knew firsthand” the truth of these words.  “Mississippi continues to change in ways its people could not anticipate even 10 years ago,” when the marriage amendment was passed.  “Allowing same-sex couples to marry, however, presents no harm to anyone.  At the very least, it has the potential to support families and provide stability for children.  This court joints the vast majority of federal courts to conclude that same-sex couples and the children they raise are equal before the law.  The State of Mississippi cannot deny them the marriage rights and responsibilities it holds out to opposite-sex couples and their children.  Mississippi’s statute and constitutional amendment violate the Fourteenth Amendment to the United States Constitution.”

Lead counsel for plaintiffs in the Mississippi case is Roberta Kaplan of New York’s Paul Weiss Rifkind Wharton & Garrison, who represented Edith Windsor in her successful challenge to Section 3 of the federal Defense of Marriage Act.  Jack Wagoner, a Little Rock attorney, is lead counsel in the Arkansas case.

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New York High Court Affirms Setting Aside Hate Crime Conviction as Inconsistent

The New York Court of Appeals, the state’s highest court, ruled unanimously on November 24 that the Appellate Division had correctly reversed the hate crime manslaughter conviction of Dwight R. DeLee, who was charged in the murder of a New York transgender woman named Lateisha Green, because the jury’s verdict was inconsistent.  However, the court modified the Appellate Division’s decision by granting the prosecution an opportunity to resubmit the charge of manslaughter in the first degree as a hate crime to another grand jury, which may lead to a new prosecution.

The decision for the court by Judge Susan P. Read reveals nothing about the nature of the charged offense, and makes no reference to the fact that the victim was a transgender woman or that the defendant was charged with murdering her because of her gender identity.  Instead, the coldly analytical opinion focuses solely on the inconsistency in the jury’s verdict and the trial judge’s failure to correct the situation by explaining the inconsistency to the jury and asking them to resume deliberations to produce a consistent verdict.  A casual reader of the court’s opinion in isolation would have no idea what the case was actually about.

Under New York law, a jury can convict on a hate crime charge if they find all the elements of an underlying crime plus the element of bias on grounds prohibited by the state’s hate crime law.  DeLee was indicted for second-degree murder as a hate crime, second-degree murder, and third-degree criminal weapon possession.  The jury convicted him of first-degree manslaughter as a hate crime and a weapon possession offense, but acquitted him on the charge of first-degree manslaughter.  After the verdict was rendered, DeLee’s attorney argued that the verdict was inconsistent, since the acquittal on the manslaughter charge could be taken to mean that the jury found that the prosecution failed to prove all the elements of the crime of manslaughter.  If so, of course, logically DeLee could not be found guilty of manslaughter as a hate crime.

The defense lawyer moved to set the verdict aside as “repugnant,” a technical term meaning that it was fatally flawed due to inconsistency.  The trial judge denied the motion, and sentenced Lee to 25 years in prison.  But Lee successfully appealed, persuading the Appellate Division that the verdict was repugnant.  There was a heated dissenting opinion by Justice Erin Peradotto, who focused on the lack of clarity in the trial judge’s charge to the jury and the obvious misunderstanding by the jury that if they found all the elements of manslaughter as a hate crime satisfied, they should not acquit on the simple manslaughter count.  By its conviction, she argued, the jury was clearly indicating their conclusion that all the manslaughter elements had been met.

Judge Read wrote that this case “presents a straightforward application” of the relevant Court of Appeals precedents, “which clearly contemplate that when jury verdicts are absolutely inconsistent, the verdict is repugnant.  The rationale for the repugnancy doctrine is that the defendant cannot be convicted when the jury actually finds, via a legally inconsistent split verdict, that the defendant did not commit an essential element of the crime.”   Since the jury in this case acquitted DeLee of manslaughter, it arguably found that the prosecution failed to prove at least one element of that crime.

Read continued, “Repugnancy does not depend on the evidence presented at trial or the record of the jury’s deliberative process, and the instructions to the jury will be examined only to determine whether the jury, as instructed, must have reached an inherently self-contradictory verdict.  In making these determinations, it is inappropriate for the reviewing court to attempt to divine the jury’s collective mental process.  Jurors are allowed to compromise, make mistakes, be confused or even extend mercy when rendering their verdicts.”

The prosecution had presented an affidavit from the jury foreperson, attesting to the jury’s intention to convict DeLee, but the court dismissed that as “the opinion of just one juror, and, in any event, [it] cannot be considered under our longstanding precedent.”

However, the court concluded that the Appellate Division’s decision to order absolute acquittal of DeLee went too far, because “a repugnant verdict does not always signify that a defendant has been convicted of a crime on which the jury actually found that he did not commit an essential element.”  It is possible that a jury has decided to acquit on a lesser-included charge, as here, in order to exercise mercy.  “But if this mercy function is the cause of a repugnant verdict,” wrote Read, “the remedy of dismissal of the repugnant conviction is arguably unwarranted.  Indeed, it provides a defendant with an even greater windfall than he has already received.”  The court concluded that “permitting a retrial on the repugnant charge upon which the jury convicted, but not on the charge of which the jury actually acquitted defendant, strikes a reasonable balance.  This is particularly so given that a reviewing court can never know the reason for the repugnancy.  Accordingly, the People may resubmit the crime of first-degree manslaughter as a hate crime to a new grand jury.”

If the new grand jury indicts DeLee on the manslaughter as a hate crime charge, he can be retried on that charge without violating the ban on “double jeopardy” since he was not acquitted on that charge at the previous trial.  The federal constitution’s double jeopardy provision prohibits retrying a criminal defendant on a charge of which he has been acquitted by a jury.

In a concurring opinion, Judge Sheila Abdus-Salaam explained at length how a trial judge in a hate crime case should charge the jury to avoid the problem of inconsistent verdicts.  She concluded that “courts would provide particularly clear and legally correct guidance on this subject by telling the jury to treat a non-hate crime as a lesser included offense of an equivalent hate crime allegedly committed via the same criminal acts” and thus that “it is impossible to commit the hate crime without also committing the ordinary crime” on which it is based.  “To that end,” she wrote, “the court should instruct the jury that if it convicts the defendant of the greater offense, it will not consider the lesser included offense.  In that situation, the jury should be told to deliberate on any unrelated charges based on different criminal conduct,” such as the weapons possession charge in this case.  “Of course, if the jury instead acquits the defendant of the hate crime, it should next deliberate on the equivalent ordinary offense, and in the event of an acquittal on that ordinary charge, it may consider any lesser hate crime or lesser included ordinary crime which has been charged based on the same conduct.”

In this case, DeLee was charged with second-degree murder as a hate crime, for which ordinary second-degree murder, manslaughter as a hate crime, and ordinary manslaughter are lesser included offenses.  It is easy to see how a jury could become confused and produce a repugnant verdict, even if it concluded that the defendant was guilty of a hate crime.  The party most likely at fault for this result is the trial judge, whose failure to instruct the jury immediately upon the rendition of the inconsistent verdict and to resubmit the case to them has generated all the subsequent litigation on appeal.  Now the local prosecutor will get a second chance to seek justice for Lateisha Green by retrying Dwight DeLee.

James P. Maxwell represented the prosecution on appeal and Philip Rothschild represented DeLee.  Lambda Legal, the District Attorneys Association of NY and the NY State Association of Criminal Defense Lawyers submitted amicus briefs.


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Third Week of November 2014 Was a Busy Week on the Marriage Equality Front

Things have begun to happen so quickly that I have fallen behind in my blogging on marriage equality developments, so here is a quick summary about events during the third week of November.

Monday, November 17 –  Plaintiffs in the 6th Circuit marriage equality cases from Ohio, Kentucky, Tennessee and Michigan finished filing their petitions for certiorari with the Supreme Court.  These are the first petitions for certiorari in marriage equality cases to be filed with the Court since it denied petitions presenting essentially the same constitutional questions on October 6 in cases from Utah, Oklahoma, Virginia, Indiana and Wisconsin.  Since October 6, the Supreme Court had consistently denied applications to stay district court marriage equality rulings from other states in the 10th and 4th Circuits, as well as applications from states in the 9th Circuit, where the Court of Appeals struck down the Nevada and Idaho bans on same-sex marriage on October 7.  Cert petitions from the Ohio and Tennessee cases had been filed on Friday, November 14, and the petitions from the Michigan and Kentucky cases were filed on November 17.  The state respondents have up to thirty days to file responses, although they are not required to file anything.  There was wide speculation that the Supreme Court will grant one or more of these petitions once the filings are complete and the cases are scheduled for consideration at a conference of the Court.  If one or more petitions are granted by mid-January, it is likely that the cases can be scheduled for argument in the spring with decisions forthcoming by the end of the Court’s term in June.  If the Court takes longer to decide whether to grant a petition, it is possible that these cases would not be argued until the Fall 2015 term, with decisions coming by June 2016.  Thus, as Justice Antonin Scalia predicted in his dissent in the 2013 DOMA ruling, U.S. v. Windsor, the question of same-sex marriage would be back before the Court within a year or two of that ruling.

The speculation about what the Court will do was fueled in part by Justice Ruth Bader Ginsburg’s comments during an appearance at the University of Minnesota Law School in September, when she remarked that the Justices saw no urgency in taking up this issue as long as all the courts of appeals were deciding cases the same way, but that a circuit split would generate such urgency.  She specifically referenced the then-pending 6th Circuit case as possibly meeting that contingency.  Now the 6th Circuit has dropped that bomb, opening up a split with the 4th, 7th, 9th and 10th Circuits.

Also on Monday, November 17, Arizona Attorney General Thomas C. Horne filed a notice of appeal in Connolly v. Roche, seeking review of the U.S. District Court’s decision striking down Arizona’s state constitutional and statutory bans on same-sex marriage.  A.G. Horne had not sought a stay in that case, stating at the time that it would be “futile” to seek a stay from the 9th Circuit in light of its October 7 ruling in Latta v. Otter.  However, one suspects that Horne was under terrific political pressure to appeal the ruling regardless, and he announced a motivation of trying to avoid paying a large attorney fee award to the plaintiffs.  Of course, his appeal will contend that the district court erred in striking down the marriage ban.  The 9th Circuit set a deadline of February 25 for the state’s brief in support of its appeal, and set March 27 as the due date for the Appellee’s answering brief, so this case would not be argued until April or later.

Tuesday – November 18.  This was an incredibly busy day for marriage equality developments.  The 4th Circuit Court of Appeals turned down a motion by South Carolina Attorney General Alan Wilson for a stay of the U.S. District Court’s order requiring the state to allow same-sex couples to marry.   Wilson sought the stay pending his filing an appeal in the 4th Circuit from last week’s ruling by the District Court in Condon v. Haley.  As soon as he received the 4th Circuit’s order turning down his request, Wilson filed an “emergency application” with Chief Justice John Roberts seeking a stay from the Supreme Court.  Meanwhile, U.S. District Judge J. Michelle Childs issued her ruling on a pending summary judgment motion in Bradacs v. Haley, a marriage recognition case, holding the state’s refusal to recognize same-sex marriages performed in other jurisdictions to be unconstitutional.  The South Carolina Supreme Court had previously blocked the issuance of marriage licenses in the state to same-sex couples pending a ruling by Judge Childs, so her decision, in combination with the 4th Circuit denial of a stay in the Condon case and the lack of any immediate Supreme Court response to Wilson’s application, combined to bring marriage equality to South Carolina beginning on November 19.

There was another important development on November 18.  The 9th Circuit Court of Appeals posted a brief statement on the webpage it had opened up for developments in Hamby v. Parnell, Alaska’s appeal of a December 13 marriage equality ruling.  The state had requested that its appeal go directly to an en banc panel, bypassing the usual three-judge panel, as a three-judge panel would have been bound by the Circuit’s ruling in Latta v. Otter (as to which a petition for rehearing en banc filed by Idaho Governor Butch Otter is pending before the court).  The notice stated: “No active judge has requested a vote to hear this case initially en banc within the time allowed by General Order 5.2a.  The request is therefore denied.”  A briefing schedule order previously issued by the court suggests that the case will not be ready for oral argument until sometime in the spring.  This may also foreshadow a denial of Governor Otter’s pending petition for en banc review.

But that’s not all for November 18.  Also heard from that date was the Kansas Supreme Court, with a ruling in State v. Moriarty, a lawsuit instigated by Kansas Attorney General Derek Schmidt against 10th Judicial District Chief Judge Kevin P. Moriarty, who had responded the U.S. Supreme Court’s refusal to review the 10th Circuit marriage equality cases by deciding that because Kansas was in the 10th Circuit its ban on same-sex marriages was unconstitutional; thus, Moriarty ordered that clerks under his jurisdiction should begin issuing marriage licenses to same-sex couples.  Schmidt vociferously disagreed, taking the position that Kansas was entitled to its day in court on the constitutionality of its own marriage ban, even though the Kansas ban does not differ in any constitutionally material respect from the bans struck down in Utah and Oklahoma by the 10th Circuit.  Federalism, federalism! cried Schmidt.  The Kansas Supreme Court had responded to Schmidt’s suit by putting a temporary hold on Moriarty’s order.  On November 18, the court issued a somewhat ambiguous decision.  It seems that a federal district court ruled on November 4 that the Kansas ban was unconstitutional, the 10th Circuit had refused to stay that ruling, and the Supreme Court had denied an emergency application by the state for a stay pending appeal to the 10th Circuit.  But the district court’s preliminary injunction in that case specifically named only the clerks in two counties who were named defendants, and Schmidt took the position that no other clerks in the state were bound to issue licenses.  The Kansas Supreme Court’s November 18 decision lifted its temporary stay against Judge Moriarty’s order, but without taking a position on whether the U.S. District Court’s ruling was binding on all Kansas judicial district clerks, while noting of course that a state official, the Secretary of Health and Environment, was also a defendant in the federal case.  By the end of the week there was considerable confusion in Kansas, as many clerks were issuing licenses, others were not, and various state agencies were taking the position that until there was a final appellate resolution of the federal case, they were taking their marching orders from Attorney General Schmidt to deny recognition to same-sex marriages for purposes of state law.  This prompted an announcement by the ACLU that it was considering amending its lawsuit before U.S. District Judge Daniel Crabtree to seek a broader preliminary injunction ordering the state to recognize the marriages.  The Kansas Supreme Court made clear in its November 18 decision that same-sex couples who obtained a valid marriage license from a clerk in the counties that were issuing them could have their marriages performed anywhere in the state — just to muddy the waters further.

Wednesday – November 19.  On this date it was Montana’s turn. . .  Montana was the last state within the jurisdiction of the 9th Circuit that lacked a district court marriage equality ruling, until District Judge Brian Morris issued his Order in Rolando v. Fox, holding that the state’s same-sex marriage ban was unconstitutional, and issuing an injunction to “take effect immediately” requiring the state to allow same-sex couples to marry.  Realizing that filing a stay application would be futile, Attorney General Tim Fox immediately filed a notice of appeal with the 9th Circuit while same-sex marriages commenced in the state.  The 9th Circuit issued a briefing schedule under which an oral argument will not happen before April or later.

Thursday – November 20.  Lambda Legal, representing plaintiffs in the Louisiana marriage case, in which an appeal was already pending before the 5th Circuit with oral argument scheduled to take place in tandem with the state of Texas’s appeal from a decision rendered last spring, filed a cert petition with the Supreme Court, asking that Court to by-pass the 5th Circuit and take Lambda’s appeal from District Judge Feldman’s decision directly.  Lambda pointed out in its petition that there is already a circuit split, so no need to prolong things with arguments in more circuits.   It’s time for the Supreme Court to step in and make a nationally-binding decision.  (The other circuits in which appeals are pending are the 11th [Florida], the 8th [Missouri] and the 1st [Puerto Rico].)  Lambda also pointed out that granting cert in both the Louisiana case and one of the 6th Circuit cases would bring into play an unbroken string of states from the southern to the northern borders of the United States.  Later in the day, the Supreme Court posted its response to South Carolina Attorney General Wilson’s application for a stay.  The Court denied the application, noting that Justices Scalia and Thomas would have granted it.

Neither Scalia nor Thomas amplified their opposition with any written statement, but Thomas had gone on record as disagreeing with the Court’s decision to deny all the pending marriage equality certiorari petitions on October 6 when he filed a dissent from a denial of cert in an unrelated case, arguing that the Court needn’t wait for a circuit split in order to deal with questions of national importance from the lower courts, and citing the marriage petitions as examples of his point.

Also on November 20, the Arkansas Supreme Court heard arguments in the state’s appeal of Judge Chris Piazza’s ruling invalidating the Arkansas same-sex marriage ban from earlier in the year, and given the speed with which things are moving, a decision would be expected shortly.

Thus, as the busy week ended, the count of marriage equality states was continuing to trend upwards towards and beyond 35, even in the wake of the 6th Circuit’s anti-marriage-equality ruling, which seemed to have had little effect on the district courts that issued decisions this week.


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Federal Court Refuses to Dismiss South Dakota Marriage Equality Case

U.S. District Judge Karen E. Schreier denied a motion by South Dakota Governor Dennis Daugaard to dismiss the pending marriage equality case of Rosenbrahn v. Daugaard on November 14.  Although this was not a ruling on the merits of the case, Judge Schreier’s ruling suggests that she will become the second district judge within the jurisdiction of the 8th Circuit Court of Appeals to rule for marriage equality.  Following the lead of District Judge Ortrie Smith in his recent Missouri ruling, Judge Schreier found that the 8th Circuit’s decision rejecting a constitutional challenge to Nebraska’s marriage amendment, Citizens v. Equal Protection v. Bruning, did not stand in the way of entertaining a 14th Amendment challenge to South Dakota’s ban on same-sex marriage.

Before getting to Bruning, however, Judge Schreier had to deal with the state’s argument that the case should be dismissed because of the U.S. Supreme Court’s ruling in 1972 in Baker v. Nelson that same-sex marriage did not present a “substantial federal question.”  The judge expressly rejected the recent ruling by the 6th Circuit that Baker remained a controlling precedent for lower federal courts. After noting Circuit Judge Jeffrey Sutton’s assertion that a summary affirmance like Baker would remain binding precedent unless it was “overruled by name” or “overruled by outcome,” she noted that the Supreme Court has said that such summary dispositions are not “of the same precedential value as would be an opinion of this Court treating the question on the merits,” and commented, “The Sixth Circuit’s reading of the doctrinal developments exception is too narrow and would effectively eliminate that exception by requiring either an explicit or implicit overruling of a prior decision.  Furthermore, it is difficult to reconcile the Supreme Court’s statement in Windsor that the Constitution protects the moral and sexual choices of homosexual couples, with the idea that state laws prohibiting same-sex marriage do not present a substantial federal question.  Thus, the Sixth Circuit’s reasoning is not as persuasive as the reasoning of the Second, Fourth, Seventh, Ninth and Tenth Circuits on this issue.”

Judge Schreier also discounted the state’s argument that the 8th Circuit had “adopted” the Baker decision by mentioning it in Bruning.  Although it was mentioned in that opinion, there was not “any discussion of the continued validity of Baker or the doctrinal development exception,” she wrote.  “Despite defendants’ contention, Bruning does not compel this court to follow Baker.”

Turning to the 8th Circuit’s Bruning decision, she observed that the plaintiffs had framed that case as “an equal protection case based on a fundamental right of access to the political process,” arguing that by adopting the marriage amendment Nebraska had discriminatorily shut out gay couples from resort to the ordinary political process of seeking marriage equality from the legislature.  The 8th Circuit expressly stated that the plaintiffs were not seeking a ruling that same-sex couples had a right under the 14th Amendment to marry in Nebraska.  It did, however, rule that sexual orientation discrimination does not involve a “suspect classification” and thus the amendment would be evaluated using rationality review.

Acknowledging that she was thus bound not to use heightened scrutiny in ruling on the challenge to South Dakota’s marriage ban on a sexual orientation discrimination theory, the judge found that this did not mandating dismissing the case.  For one thing, she found, the Bruning court had not ruled on whether there is a fundamental right to marry from which same-sex couples are excluded.   “Burning is not dispositive of the central issue before this court,” she wrote, so “Bruning does not preclude plaintiffs from relief as a matter of law.”  Furthermore, she found that since Bruning had not pronounced on this fundamental due process question, “Plaintiffs are not consigned to rational basis review and have a plausible claim for relief with respect to their due process argument.”  That would suffice to reject the motion to dismiss.

However, Judge Schreier went further, exploring the plaintiffs’ equal protection claim.  She found that plaintiffs had stated “a plausible equal protection claim based on the alleged deprivation of a fundamental right where plaintiffs allege the classification is not precisely tailored to serve a compelling governmental interest.”  Furthermore, citing 9th Circuit Judge Marsha Berzon’s concurring opinion in the Idaho/Nevada marriage ruling, she found that plaintiffs also had a plausible “gender discrimination” case.   “At this stage — a motion to dismiss — the court finds that the complaint sufficiently states a claim for relief because it plausibly shows a classification related to gender,” she wrote.  “Even though several courts have rejected the argument that same-sex marriage bans discriminate based on gender because the plaintiffs did not present sufficient evidence of invidious gender discrimination to prevail on their claim, the complaint should still survive” a motion to dismiss.  She also pointed out that in light of the developing marriage equality case law, it would be improper to dismiss the plaintiffs’ sexual orientation discrimination claim either, as many courts have found that the states had presented no rational basis for their bans.

She did, however, find that the plaintiffs’ “right to travel” claim, asserted against the state’s refusal to recognize out-of-state same-sex marriages, should be dismissed, because she found it did not fit within the sphere of the constitutional right to travel mapped out in past decisions.  “Although plaintiffs in this case may lose certain benefits when they move to South Dakota,” she wrote, “the fact that they are treated the same as existing residents proves that South Dakota’s marriage laws do not operate as a penalty on the right to travel.  Therefore, plaintiffs have failed to state a claim that is plausible on its face with respect to their right to travel claim.”

The judge ordered the state to respond to plaintiffs’ pending motion for summary judgment by November 24, and plaintiffs would then have up to 14 days to file a reply, after which the court will rule on the pending motion for summary judgment.

Minnesota Attorney Josh Newville represents the plaintiffs, six same-sex couples who either seek to marry in South Dakota or to have their out-of-state marriages recognized.

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Michigan Ban on Benefits for Same-Sex Partners of Government Employees Ruled Unconstitutional

Even though the U.S. Court of Appeals for the 6th Circuit rejected a constitutional challenge to the state’s ban on same-sex marriage just days ago, U.S. District Judge David M. Lawson ruled on November 12 that Michigan’s Public Employee Domestic Partner Benefit Restriction Act, passed in 2011, violates the Equal Protection Clause.  Judge Lawson rested his ruling on the anti-gay animus he found in reviewing the enactment of the measure.

On the one hand, the court’s decision in Bassett v. Snyder could not have been too surprising, since Judge Lawson had previously granted a pre-trial motion to enjoin the operation of the law while the case was pending.  On the other, however, such apparent open defiance of a 6th Circuit ruling by a federal court whose decision is subject to appeal to that court is a bit unusual.

Judge Lawson took pains to distinguish the two cases.  Referring to his earlier order in the case, he wrote, “Since the injunction was issued, there has been a new development.  This district court declared that Michigan’s marriage amendment (which prohibits same-sex marriage) violated the Equal Protection Clause because there was no rational basis for the State to deny the benefits of marriage to same-sex couples.  The Sixth Circuit reversed that decision, hold that states ‘retain authority’ to regulate marriage by classifying who may marry; and if same-sex couples are denied that right, they can find no comfort in the Federal Constitution.”

But, he continued, “this case is not about marriage, as such, although allowing same-sex couples to marry would go a long way toward minimizing the discriminatory sting of the Public Employee Domestic Partner Benefit Restriction Act.  Rather, this case deals with couples who cannot marry under state law and their families.  It is one thing to say that states may cleave to the traditional definition of marriage as a means of encouraging biologically complimentary couples to stay together and raise the offspring they product.  It is quite another to say that a state may adopt a narrow definition of family, and pass laws that penalize those unions and households that do not conform.  The former represents the application of a generous and deferential standard of reviewing legislative classifications, one that permits ‘legislative choices [that] may rest on “rational speculation unsupported by evidence or empirical data.”‘  The latter amounts to a classification based ‘on irrational prejudice,’ which cannot be sustained.  And when that occurs, courts play a vital role in our constitutional system to protect individual rights.”

Judge Lawson recounted how the challenged statute was passed by outspoken legislative opponents of gay rights in response to an earlier decisions by the Michigan Supreme Court holding that governmental agencies were not forbidden to grant benefits to same-sex partners of their employees by the state’s Marriage Amendment, which prohibits same-sex marriage or any other similar recognized union for same-sex couples.  (This is the Amendment that was declared unconstitutional by a different federal judge in the DeBoer case, and then revived recently by the 6th Circuit.)  Anti-gay state legislators were particularly incensed when the state’s Civil Service Commission approved domestic partner benefits for state employees.  Although the legislature refused to overrule the Commission’s decision, individual legislators criticized it as “disgusting,” and political outraged mounted when the Michigan Supreme Court rejected the attorney general’s argument that the Marriage Amendment should be construed to prohibit the Commission’s action.

The title of the challenged law gives away its specific purpose: to deprive same-sex partners of benefits.  The court pointed out the particular harms suffered by the plaintiffs, all of whom were receiving benefits for themselves or their partners that were lost until Judge Lawson issued his preliminary injunction requiring their restoration.

The November 12 decision ruled on motions for summary judgment filed by Governor Snyder and the plaintiffs.  It appears that Judge Lawson waited to rule on the motions until after the 6th Circuit ruled in the marriage case, since a right for same-sex couples to marry would ultimately render this case irrelevant.

In evaluating the plaintiffs’ equal protection arguments, Judge Lawson summarized recent developments under which courts in other circuits had applied heightened scrutiny to claims involving anti-gay discrimination, but noted that in the 6th Circuit he was bound by precedent to apply the deferential rational basis test. However, he noted, there was strong precedent from the Supreme Court to apply heightened scrutiny if a discrimination government action was motivated by animus.  In an extended portion of his opinion, the judge determined that this was such a case.

First he found that the law, “as its title suggests,” was enacted specifically to impose restrictions on same-sex partner benefits, thus imposing a deprivation on a disfavored group.  “One need not look very far to learn that gays and lesbians are a disfavored group,” he wrote.  “In 2012, twelve percent of all reported hate crimes in Michigan targeted gays and lesbians.  Gays and lesbians in Michigan have a 27 percent change of experiencing discrimination in obtaining housing.  The State of Michigan provides no protection against harassment or employment discrimination on the basis of sexual orientation.  And the Michigan Legislature has not repealed its sodomy or gross indecency statutes, despite the Supreme Court’s decision in Lawrence v. Texas nearly twelve years ago.”  Lawson pointed out that even the 6th Circuit, in its anti-gay marriage decision, had conceded that gay people have suffered prejudice in the United States.  Going even further, Lawson quoted 7th Circuit Judge Richard Posner’s statement in that circuit’s marriage equality decision, “Until quite recently,” gays and lesbians “had, as [gays and lesbians], no rights.”

“In light of the reactions to the Michigan Civil Service Commission’s furnishing benefits to the same-sex partners of public employees,” he continued, “it is hard to deny that these attitudes persist today.  And it is equally difficult to ignore the inference that Act 297 emerged from those attitudes.”  Thus, heightened scrutiny should apply in this case, despite the 6th Circuit precedents on sexual orientation discrimination.

Lawson examined three alleged “purposes” for the law argued by the state, and found them all insufficient against the test of heightened scrutiny.  Lawson rejected the government’s argument that the purpose of the law was to “augment laws that maintain family relationships,” finding that this denial of benefits did nothing to strengthen heterosexual families while intentionally harming gay families.  The government claimed that the law “eliminates local government programs that are irrational and unfair to traditional families,” a justification whose “reasoning” the court skewered as “flawed,” pointing out that localities had adopted programs allowing employees to designate co-habitants to receive benefits solely as a workaround to avoid the problems imposed by the Marriage Amendment, and not to try to weaken traditional families.  Lawson found that this argument only made sense if “same-sex domestic partners do not constitute families,” but, he asserted, “They do.”  “That justification can be ‘rational’ only if the State could promote a favored group by imposing a deprivation upon a disfavored ‘other’ one,” but that justification, he found, “runs afoul of the Equal Protection Clause.”  He found that this justification supports a finding of animus.  He also rejected the “cost justification” advanced by the state, pointing out that the state saved little, if anything, by denying the benefits, especially when noting the costs to the state of providing medical care to uninsured people with serious medical conditions who would otherwise be insured under domestic partner benefits programs.  And, he pointed out, the state saves no money by prohibiting local governments and county and city agencies from providing such benefits, which do not come out of the state treasury.  Although he conceded that the state is entitled to adopt policies to save money, “the lack of substance behind this stated justification does little to dispel the ‘suspicion that bigotry rather than legitimate policy is afoot.'”  He also found that the law marked a departure from the state’s usual practice, which is to leave local governments a wide degree of autonomy in establishing their employee benefits policies.  Departures from usual practices, especially when they impose deprivations on targeted groups, are another sign of animus.

Quoting from the 10th  Circuit’s marriage equality ruling — in fact, a concurring opinion by Judge Holmes — Lawson wrote, “Once animus is detected, the inquiry is over; the law is unconstitutional.”  And, summarizing the Supreme Court’s ruling from the Colorado anti-gay amendment case of 1996, Lawson wrote, “A law is irrational if its purpose is to target a disadvantaged group.”  Thus, the outcome of this case is clear.  “Public Act 297 was enacted to deprive the same-sex partners of public employees of health and other fringe benefits offered by local units of government.  The defendant has not identified any other credible justification for the law.  The Supreme Court has explained that ‘the Constitution’s guarantee of equality ‘must at the very least mean that a bare [legislative] desire to harm a politically unpopular group cannot’ justify disparate treatment of that group.”

Thus, the court denied the state’s motion for summary judgment, granted the plaintiffs’ motion, and declared that the law violated the 14th Amendment.  Judge Lawson issued an injunction banning the state from enforcing the act.

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