New York Law School

Art Leonard Observations

Lesbian Co-Parent Seeks Expedited Supreme Court Review of Alabama Refusal to Recognize Adoption

Attorneys for V.L., the adoptive mother of children born to her former same-sex partner, have asked the U.S. Supreme Court (SCOTUS) to review an erroneous decision by the Alabama Supreme Court to refuse to recognize the adoption that was approved by the Georgia Superior Court, and have also asked SCOTUS to restore her visitation rights while the appeal is pending by suspending the Alabama Supreme Court’s order in the case.  The petitions were filed on November 16.

V.L., who is represented by the National Center for Lesbian Rights and cooperating attorneys from Jenner & Block LLP (Washington, D.C.), with local counsel Traci Owen Vella and Heather Fann in Birmingham, Alabama, lived with E.L. in a seventeen-year relationship.  In May 2000 V.L. changed her last name to E.L.’s last name, and the women decided to have and raise children together.  E.L. subsequently gave birth to one child in 2002 and twins in 2004 through donor insemination.  The women played equal parental roles in raising the kids.  In order to provide more security to their legal relationship, they rented a residence in Atlanta and obtained a legal adoption from the Georgia (Fulton County) Superior Court so that V.L. would be the legal parent of the children.  The Georgia judge construed that state’s adoption law to allow second-parent adoptions without terminating the birth mother’s parental rights, as several other Georgia trial courts have also done.  So far, there is no Georgia appellate ruling against such adoptions, and the Georgia Supreme Court has not addressed the issue directly.

After the adoption, the women returned to Alabama and resumed living there are a family until the women separated and E.L. eventually cut off V.L.’s contact with the children.  V.L. registered the adoption with an Alabama court and filed an action seeking custody or visitation.  The Alabama trial and appellate courts concluded that V.L. must be recognized as an adoptive parent entitled to seek a determination of custody or visitation, with E.L. appealing every step of the way, until she won a reversal from the Alabama Supreme Court on September 18.

The lower Alabama courts correctly applied the Full Faith and Credit Clause (FFCC) of the U.S. Constitution, which requires that the courts of one state accord “full faith and credit” to the judgments issued by courts in other states.  More than a century of well-established court precedents provide that courts may not refuse to accord full faith and credit to a sister state court’s ruling because of a disagreement over the merits of that ruling.  The limited exception to full faith and credit would be cases where the court that issued the judgment did not have jurisdiction to do so, either because the court was not authorized to decide such cases or because the parties were not properly within the jurisdiction of the court.  In this case, the Georgia Superior Court had specifically concluded that it had jurisdiction over the parties and the subject matter of the case.  Indeed, Georgia statutes provide that the Superior Court has jurisdiction over all adoption proceedings.

A majority of the Alabama Supreme Court, however, departing from established constitutional precedents, decided based on its own reading of Georgia’s adoption statute that the Georgia law could not properly be construed to allow second-parent adoptions.  Even though the Georgia appellate courts have never specifically disapproved such adoptions, and courts of several other states have approved them in the context of similarly-worded adoption statutes, the Alabama court decided that the Georgia Superior Court’s departure from the Alabama Supreme Court’s interpretation of the Georgia adoption statute is a “jurisdictional” fault that justifies refusing to recognize the adoption.

This startling result drew a sharp dissent from a member of the court, who wrote that it “creates a dangerous precedent that calls into question the finality of adoptions in Alabama: Any irregularity in a probate court’s decision in an adoption would now arguably create a defect in that court’s subject matter jurisdiction.”

Petitioning SCOTUS, V.L. argued that the Alabama Supreme Court’s departure from established constitutional precedent, in general contradiction with more than a century of precedent and in direct contradiction of the Denver-based U.S. 10th Circuit Court of Appeals’ 2007 ruling, Finstuen v. Crutcher, 496 F.3d 1139, requires a resolution of whether state courts are permitted to inquire into the merits of rulings by sister state courts in deciding whether to accord full faith and credit to those judgments, particularly in adoption cases where the result would be to interfere with family relationships that had been established and then legally ratified in completed adoption proceedings.   In the Finstuen case, the 10th Circuit invalidated an Oklahoma statute that barred recognition of same-sex couple adoptions, holding that the statute violated the obligation of Oklahoma courts under the full faith and credit clause to recognize such adoption judgments.

Under the rulings of the Alabama trial and intermediate appellate courts V.L. had been enjoying visitation rights with the children on a temporary basis while E.L. pursued her appeal.  Shortly after its ruling, the Alabama Supreme Court suspended that visitation.  In addition to her petition for review, V.L. filed a petition with SCOTUS requesting a stay of the Alabama Supreme Court order and restoring her visitation rights while this appeal is pending.  This is in accord with her argument that she is the legal adoptive parent of those children and thus is entitled to continued contact of some sort unless E.L. can show that she is unfit or poses a danger to the children.  Because of the appeals of the recognition rulings in this case, there has not yet been a determination by the Alabama trial court whether it is in the best interest of these children for their adoptive mother to have custody or visitation.  By its erroneous decision that V.L. is not a parent with standing to contest these issues, the Alabama Supreme Court has decreed that there be no inquiry into the best interest of the children — an inquiry that should be at the heart of custody and visitation decisions when parents split up.

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Oklahoma Supreme Court Uses “In Loco Parentis” Doctrine to Find Co-Parent Standing for Lesbian Mom

The Oklahoma Supreme Court has unanimously ruled that a woman who spent ten years raising a child with her former same-sex partner can use the equitable doctrine of “in loco parentis” to achieve standing to sue for custody or visitation of the child.  Ramey v. Sutton, 2015 OK 79. The November 17 opinion, written by Justice Joseph M. Watt, drew on the U.S. Supreme Court’s June 26, 2015, marriage equality decision, Obergefell v. Hodges, and its 10th Circuit analogue, Bishop v. Smith, which was denied review by the Supreme Court in October 2014.

Kimberly Sutton proposed marriage to Charlene Ramey in 2004, according to Justice Watt’s opinion.  The women exchanged rings and considered themselves to be life partners, even though at that time same-sex couples could marry nowhere in the United States except Massachusetts and Oklahoma did not recognize such marriages.  They decided to have a child together and to raise the child jointly, with Sutton conceiving the child through donor insemination.  A male friend of the couple agreed to donate sperm, with the understanding that he would have no parental responsibilities or rights.  The baby boy was born on March 22, 2005.

“Ramey attended all ultrasound appointments, shared in related pregnancy costs, and was present and participated in the delivery of their newborn,” wrote Justice Watt.  “Sutton prepared a baby book for their child identifying both Sutton and Ramey as parents.  Sutton gave a card to Ramey congratulating her on becoming a ‘mother’ to their son and that she would be a wonderful mom.”  Ramey supported the family during Sutton’s pregnancy and the child’s early months. Sutton returned to work in the winter of 2005.  Due to Sutton’s work and sleep schedule, Ramey ended up being the primary caregiver to their son, who always referred to Ramey as “mom” but, according to the opinion, “did not being to refer to Sutton as ‘mom’ until the age of five or six.  Even today,” continued Watt, “their child will sometimes refer to Sutton, the biological mom, as Kimberly and not as ‘mom.'”  Ramey was an active parent, serving as a home room mother at their son’s school, volunteering for school activities, and “built family traditions incorporating their child’s love of the outdoors.”  The women held themselves out as a family to friends and relatives, took vacations as a family, and Ramey claimed their son as a “dependent” on her tax return.  Even after the women ended their relationship, they continued living together as roommates for many months while continuing to raise the child together.

However, after Ramey moved out, Sutton opposed her attempt to maintain parental ties through a legal proceeding seeking custody and visitation rights.  Sutton argued that since they had no written parenting agreement and Ramey had no legal relationship to the child, she lacked standing to seek a court order.  The district court agreed with Sutton, dismissing the case for lack of a written parenting agreement, and Ramey appealed.

The court framed the questions presented on the appeal as follows: “(1) Whether the district court erred finding that a non-biological parent lacked standing because the same sex couple had not married and had no written parenting agreement; (2) Whether a biological mother has the right as a parent to legally erase an almost ten year parental relationship that she voluntarily created and fostered with her same sex partner.”  The court answered the first question “yes” and the second question “no.”  The court characterized this case as “a matter of first impression before this court,” noting that in 2014, in the case of Eldredge v. Taylor, 339 P.3d 888, it had upheld the right of a non-biological mother to enforce the terms of a written co-parenting agreement with her former same-sex partner.  The district court’s dismissal of Ramey’s case was thus based on a narrow reading of the Eldredge case to require such a written agreement in order to confer standing on a same-sex co-parent.

Justifying a broader reading of Eldredge, the court relied on the Obergefell and Bishop cases.  “Today we broaden Eldredge, acknowledging the rights of a non-biological parent in a same sex relationship who has acted in loco parentis where the couple, prior to Bishop or Obergefell, (1) were unable to marry legally; (2) engaged in intentional family planning to have a child and to co-parent; and (3) the biological parent acquiesced and encouraged the same sex partner’s parental role following the birth of the child.”

Thus, the ruling is really a transitional one, effectively applying the constitutional rulings of Bishop and Obergefell retroactively to benefit couples who had children at a time when they were being denied the constitutional right to marry or to have out-of-state same-sex marriages recognized in Oklahoma.  The ruling presumably would not apply to same-sex couples who do not take advantage of the right to marry and have their marriage recognized in Oklahoma, which became effective shortly after the Supreme Court denied review in Bishop on October 6, 2014, before having children together.  Presumably, same-sex couples who do not marry before having a child may still benefit from the Eldredge decision by executing a written co-parenting agreement.  For those who had children prior to October 6, 2014, or perhaps prior to the Obergefell ruling on June 26, 2015 (the court is not explicit about this), Oklahoma courts will be required to set aside the lack of marital status or of a written parenting agreement, and will instead apply the 3-part test set out in this new ruling.

A finding of co-parent standing will not be automatic, of course, as the application of “in loco parentis” requires the court to find that the parties had planned to have a child together and then held themselves out as a family while raising the child together for some period of time before ending their relationship.  The doctrine rests on a finding that the biological parent had intended her partner to be a co-parent to the child and voluntarily nurtured that parent-child relationship.

The court pointed out that this new case only applies to the issue of standing.  Once a trial court determines that a same-sex co-parent has standing to seek custody or visitation, it will then turn to the issue of what is in the best interest of the child, just as it would in a custody and visitation dispute involving divorcing  different-sex couples.  To drive home this point, three judges joined a separate opinion, concurring in the result, stating: “In child custody cases the Court must determine standing first based on an agreement of the parties. Then and only then is best interest considered to determine custody and visitation.”  This refers to the second part of Justice Watt’s 3-part test: intentional family planning to have a child and to co-parent.

The court’s decision is not without precedent in other jurisdictions, where courts have used various equitable doctrines including in “loco parentis” and “equitable estoppel” to establish standing for a same-sex co-parent to seek continued contact with the child he or she was helping to raise.  But some states, including New York, have refused to embrace this equitable route.  The New York courts still adhere to the now-anachronistic 1991 New York Court of Appeals ruling, Alison D. v. Virginia M., which treated co-parents as “legal strangers” to the child who have no right to seek custody or visitation, although a few lower courts confronted with the realities of family diversity have sought ways to get around that precedent.  Thus we now have the anomalous situation that the Oklahoma Supreme Court is more progressive on gay family law than the New York Court of Appeals!

Brady R. Henderson of the ACLU of Oklahoma Foundation and Oklahoma City attorney Rhonda G. Telford Naidu represented Ramey on this appeal.  Sutton was represented by Oklahoma City attorney Kacey L. Huckabee.

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Federal Judge Refuses to Dismiss Michigan Transgender ID Case

A federal judge has refused to dismiss a claim by six transgender Michiganders that a state policy governing changes of sex designation on driver’s licenses and personal identification cards violates their constitutional privacy rights.  The November 16 ruling in Love v. Johnson, 2015 U.S. Dist. LEXIS 154338, 2015 WL 7180471 (E.D. Mich), by Senior U.S. District Judge Nancy G. Edmunds, finds that transgender people have a fundamental right of privacy under the Due Process Clause of the 14th Amendment regarding their gender identity, which right appears to be heavily burdened by the state policy.

In 2011, Michigan Secretary of State Ruth Johnson adopted the following policy:  “An applicant may request to change the sex on their driver license or personal ID card.  The individual must provide a certified birth certificate showing the sex of the applicant.  A birth certificate is the only document accepted as proof to change an individual’s sex.  A U.S. passport cannot be accepted as proof of a sex change.”

According to the plaintiffs, this policy makes it very difficult for many transgender people to obtain such a change.  For one thing, people born in a state that refuses to issue replacement birth certificates for transgender individuals are stuck; they can never get an appropriate state government ID in Michigan.  (Such an ID is required, among other things, for voting.)  For another, people born in states that require gender reassignment surgery as a prerequisite may be stuck as well, since such surgery may not be available to them for financial or other reasons.  Indeed, that is the case in Michigan, which requires people to undergo sex-reassignment surgery to get a new birth certificate.

By contrast, the State Department does not require sex-reassignment surgery as a prerequisite to get an appropriate passport.  The Department will accept a doctor’s letter certifying that the individual “has had appropriate clinical treatment for gender transition,” without any specification of particular treatment.  Many  other states now have similarly permissive requirements to issue driver licenses or non-driver ID cards.

The consequences of carrying a driver’s license or state ID that does not correctly identify the bearer’s gender are many.  Encounters with police officers and security officers are only the most obvious.  In their affidavits opposing the state’s dismissal motion, the plaintiffs recount a wide range of circumstances in which they have encountered demeaning or antagonistic responses when complying with requests to show ID, including when voting or attempting to cash a check.  Every such occasion is an “outing” with respect to information they prefer to keep confidential, and they cite the incidence of violence against transgender people as a looming threat when their status is thus revealed involuntarily.

Judge Edmunds rejected the state’s argument that plaintiffs had not presented a claim of constitutional dimensions.  She found a wide range of precedents, including decisions from the 6th Circuit that would be controlling in a federal case in Michigan, recognizing privacy interests in medical information and sexually-related information.  In addition, she relied on a decision by the 2nd Circuit in a case involving a transgender prison inmate, Powell v. Schriver, where the court recognized in 1999 that the “hostility and intolerance” against transgender people bolstered its conclusion that “the Constitution does indeed protect the right to maintain the confidentiality of one’s transsexualism.”  That court based its ruling on the “bedrock principle” that “there exists in the Constitution a right to privacy protecting the individual interest in avoiding disclosure of personal matters,” and a recognition that a transgender person “potentially exposes herself to discrimination and intolerance” when forced to reveal this information.

Edmunds, appropriating language from the prior 6th Circuit case, found “no reason to doubt that where disclosure of this highly intimate information may fall into the hands of persons harboring such negative feelings, the Policy creates a very real threat to Plaintiffs’ personal security and bodily integrity.”

Since a fundamental right is involved, Edmunds observed that the state could only win this case if it could show a compelling interest, and that the policy was “narrowly drawn to further that interest.,” which requires that it be the least restrictive way to achieve the state’s goal.  In this case, she wrote, the state “vaguely identifies two purported interests — albeit not in the context of a fundamental right — in support of the Policy: (1) ‘maintaining accurate state identification documents’ to ‘promote effective law enforcement’ and, (2) ensuring ‘that the information on the license is consistent with other state records describing the individual.”

The judge found that the challenged policy “bears little, if any, connection to Defendant’s purported interests, and even assuming it did, there is no question that requiring an amended birth certificate to change sex on one’s license is far from the least restrictive means of accomplishing the state’s goal.  Indeed, as Plaintiffs point out, ‘because of the Policy, the sex listed on their licenses fails to match their appearance and the sex associated with their names.’  In this way, the Policy undermines Defendant’s interest in accurately identifying Plaintiffs to ‘promote law enforcement.'”  She pointed to a 2012 decision by an Alaska trial court criticizing a similar policy adopted in that state, which observed that the policy produces licenses that are inaccurate for identification purposes, causing inconvenience and worse in the everyday lives of transgender people.

As to the rejection of a passport as documentation of gender, Judge Edmunds wrote, “Defendant fails to articulate how this two-tiered system promotes the state’s purported interest in ensuring ‘that the information on the license is consistent with other state records describing the individual.'”  Why should a person be required to carry a driver’s license that contradicts her passport as to her gender?

The plaintiffs alleged that at least 25 states allow changes of sex designation on driver licenses without proof of sex reassignment surgery.  “The Court seriously doubts that these states have any less interest in ensuring an accurate record-keeping system,” wrote Edmunds.  Thus, at this point in the case, the court was unwilling to conclude as a matter of law that the policy “narrowly serves the state’s interest in maintaining ‘accurate’ identification documents or promoting effective law enforcement.”

The plaintiffs had made other constitutional claims, but Judge Edmunds decided that it was unnecessary to rule on them at this point.  So long as she had identified one claim on which the plaintiffs were entitled to maintain their legal challenge to the policy, the state’s motion to dismiss should be denied.  “Should future developments require the Court to rule on the viability of Plaintiffs’ remaining claims,” she wrote, “Defendant may seek leave to renew her motion at that time.”

Judge Edmunds’ refusal to dismiss the case puts the plaintiffs in a strong position to negotiate a change to the policy.  If negotiations fail, they can probably count on winning this case through a motion for summary judgment unless the state can come up with something better than its pathetic arguments in support of its motion to dismiss.

The plaintiffs are Ermani Love, Tina Seitz, Codie Stone, E.B., A.M., and K.S.  Their attorneys include Daniel S. Korobkin, Michael J. Steinberg and Jay Kaplan of the ACLU Foundation of Michigan in Detroit, John A. Knight of the ACLU Foundation in Chicago, Illinois, and cooperating attorneys Jacki Lynn Anderson, Michael Frederick Derksen and Steven R. Gilford of the Proskauer Rose law firm’s Chicago office.

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Heightened Scrutiny for Transgender Equal Protection Claim in S.D.N.Y.

For the first time within the 2nd Circuit, a federal district judge has ruled that a transgender person’s equal protection claim will receive “heightened scrutiny” from the court.  Senior District Judge Jed Rakoff’s ruling November 15 in Adkins v. City of New York, 2015 Westlaw 7076956, relied on the 2nd Circuit’s decision in Windsor v. United States (which was affirmed on due process grounds by the Supreme Court), finding that anti-gay discrimination merited a heightened scrutiny review.

Heightened scrutiny is the standard used to evaluate sex discrimination claims.  It places the burden on the government to show that the discriminatory treatment significantly advances an important government interest.  In this case, the City is defending steps that police officers took in detaining a transgender man arrested during the Occupy Wall Street Brooklyn Bridge demonstration.

Rakoff’s ruling should be a wake-up call to the New York City Police Department, since it rests in part on Adkins’ allegations that the department follows a policy of discrimination against transgender detainees and has failed to take any action in response to internal recommendations to modify its policies.

Justin Adkins was arrested on the Brooklyn Bridge on October 1, 2011.  He was taken to the 90th Precinct and placed in a cell with other men.  Although neither Adkins nor the other men in the cell raised any complaint about his presence, he was removed from the cell after police officers identified him as transgender, seated in a chair next to the bathroom, and handcuffed to a metal rail along the wall, where he was left for seven hours.  Other detainees were fed, but he was not.  He alleges that being restrained in that awkward position for so long caused soreness in his arm and shoulder that lasted for several weeks.  He ultimately was released without being prosecuted.

Adkins leveled a barrage of constitutional claims against the police officers responsible for this treatment and the City as their employer.  The City moved to dismiss his lawsuit.  Judge Rakoff dismissed most of the claims in summary fashion, but he found that the Equal Protection claim had enough merit to survive the City’s motion.

An Equal Protection claim must allege that the plaintiff was “treated differently than others similarly situated as a result of intentional or purposeful discrimination” and that “the disparity in treatment cannot survive the appropriate level of scrutiny.”  Rakoff found that Adkins had adequately alleged differential treatment, and that this treatment was purposeful “because it was pursuant to the NYPD’s custom of subjecting transgender detainees to special conditions,” such as, in this case, “handcuffing them to railings.”  Adkins also alleged discriminatory intent, citing individual police officers’ “responses to learning of his transgender status, which included gawking, giggling, and inquiring about his genitalia.”  Rakoff found that this met the plausibility requirements for pleading a constitutional claim.

The main issue, then, in deciding whether to dismiss the claim was whether Adkin’s complaint merits “heightened scrutiny” or would be relegated to the generally deferential “rational basis” standard of review, under which the defendants would escape liability if there was any imaginable justification for their action.

Rakoff turned to the 2nd Circuit’s Windsor decision, which analyzed this question in the context of the Defense of Marriage Act, which required the federal government to withhold any recognition of same-sex marriages performed under state law.  In that case, the 2nd Circuit held that heightened scrutiny would apply, finding that gay people qualify as a “quasi-suspect class.”  Rakoff reached a similar conclusion as to transgender people, applying the same sort of reasoning.  “While transgender people and gay people are not identical,” he wrote, “they are similarly situated with respect to each of Windsor’s four factors.”

The first factor is a history of persecution and discrimination based on membership in the class.  The 2nd Circuit said that this factor is “not much in debate” for gay people.  Speaking of transgender people, Rakoff wrote that “this history of persecution and discrimination is not yet history.  Plaintiff cites data indicating that transgender people report high rates of discrimination in education, employment, housing, and access to healthcare.”

The second factor is whether the status in question bears any relation to ability to contribute to society.  “Some transgender people experience debilitating dysphoria while living as the gender they were assigned at birth,” he wrote, “but this is the product of a long history of persecution forcing transgender people to live as those who they are not.  The Court is not aware of any data or argument suggesting that a transgender person, simply by virtue of transgender status, is any less productive than any other member of society.”

The third factor is whether transgender status “is a sufficiently discernible characteristic to define a discrete minority class,” and Rakoff found that it is.  Here the Windsor analysis really came in handy.  “Windsor helpfully describes the scenarios of a person of illegitimate birth applying for Social Security benefits and thereby making their illegitimate status manifest, or two gay people seeking a marriage license and thereby revealing their homosexuality.  Transgender people struggle with similar scenarios on an even more frequent basis: many forms of identification required for asserting legal rights, such as birth certificates, indicate the bearer’s gender.  A mismatch between the gender indicated on the document and the gender of the holder calls down discrimination, among other problems.  Document troubles aside,” he wrote, “transgender people often face backlash in everyday life when their status is discovered.  For instance, plaintiff alleges that, upon learning that he was transgender, police officers gawked and giggled at him and asked him what he had ‘down there.'”

Finally, courts look at whether a particular class is a “politically powerless minority.”  “Particularly in comparison to gay people at the time of Windsor,” wrote Judge Rakoff, “transgender people lack the political strength to protect themselves,” citing as an example the continued exclusion from military service.  “Moreover, like gay people, it is difficult to assess the degree of underrepresentation of transgender people in positions of authority without knowing their number relative to the cisgender population,” he wrote.  “However, in at least one way this underrepresentation inquiry is easier with respect to transgender people: for, although there are and were gay members of the United States Congress (since Windsor, in both houses), as well as gay federal judges, there is no indication that there have ever been any transgender members of the United States Congress or the federal judiciary.”

Having found that heightened scrutiny applies, Rakoff found that Adkins had put into play the question whether his removal from a general cell and handcuffing to a rail for seven hours was “substantially related to an important government interest.”  The City’s response was to argue that “there is no constitutional right to be detained with cellmates of the same gender,” but they cited a case for that proposition that did not involve heightened scrutiny, and thus didn’t address the question.  Secondly, they invoked “safety concerns,” referring to Adkins’ own complaint, which alleged that “numerous transgender individuals detained by the NYPD have alleged that they have been placed with individuals who posed a risk to their safety.”  But Rakoff pointed out that Adkins had not alleged that there were any safety concerns in this case: “Neither he nor the men with whom he was initially held raised any safety concerns,” and in evaluating the City’s motion to dismiss, Rakoff was required to treat Adkins’ allegation as true.  “Moreover,” he wrote, “defendants cannot argue their actions were substantially related to ensuring plaintiff’s safety when they removed him from an allegedly safe place and caused him injury, albeit minimal injury, by handcuffing him to a wall next to the sole bathroom in the precinct.”

However, Rakoff concluded, since his ruling on heightened scrutiny addressed a question of first impression within the 2nd Circuit, it could not come into play against the individual police officer defendants in this case.  Under the “qualified immunity” doctrine developed by the Supreme Court, individual public officials can be held liable for constitutional violations only when they violate established rights, not rights newly-identified in the case in which they are being sued.  Even if one dates the heightened scrutiny analysis back to the 2nd Circuit’s Windsor decision, it was announced on October 18, 2012, more than a year after Adkins was arrested.  “Accordingly, defendants could not be expected to know that their actions could be subject to any standard more stringent than rational basis review.”

Although Rakoff refrained from deciding whether Adkin’s complaint would survive a motion to dismiss using rational basis review, he held that “it would have been objectively reasonable for defendants to conclude as much and that qualified immunity therefore attaches.  Particularly because many transgender detainees have alleged that they have been held with individuals who posed a risk to their safety, it was reasonable for defendants to conclude that it would not be arbitrary or irrational to hold plaintiff separately.”  Thus, charges against the individual officers were dismissed, Rakoff having earlier in the decision minimized the seriousness of injury that Adkins claims to have suffered as a result of the handcuffing and the seven-hour fast imposed on him during his detention.

But, Rakoff wrote, the qualified immunity doctrine does not protect the City as a defendant.  In order to hold the City liable, Adkins would have to plausibly allege a practice or policy of discriminatory treatment of transgender detainees.  “Plaintiff has alleged that both eyewitness accounts and internal police documents show the existence of a specific pattern of misconduct, viz., handcuffing transgender detainees to railings, and further show official inaction in the face of this pattern.  Plaintiff claims that an internal NYPD recommendation called for changes in the department’s treatment of transgender people, but the NYPD chain of command took no steps in response to it.  He claims that numerous transgender people detained by the NYPD have alleged they were chained to railings,” citing, among other things, a 2007 deposition by a transgender man who had been subject to such treatment.

Rakoff ruled that Adkins’ allegations were sufficient to survive the City’s motion to dismiss his claim, finding that he had “nudged his claims across the line from conceivable to plausible,” enough to satisfy federal pleading standards.  Thus, Adkins’ claim against the City for violating his rights under the 14th Amendment’s Equal Protection Clause may go to trial if the City does not offer a settlement acceptable to Adkins.  Judge Rakoff instructed the attorneys to jointly call his chambers by “no later than November 19, 2015, to schedule further proceedings with regard to the remaining claim.”

Adkins’ attorneys cited the Atlanta-based 11th Circuit Court of Appeals’ decision in Glenn v. Brumby in support of their heightened scrutiny claim.  In that case, the court found that a transgender woman could maintain a constitutional claim against a state legislative office where she was employed alleging an equal protection violation based on her gender identity.  Rakoff is the first judge within the geographical bounds of the 2nd Circuit to reach the same conclusion.

Andrea Juanita Ritchie, a Brooklyn attorney, represents Adkins.  The City Law Department attorneys working on the case are Dara Lynn Weiss and Cheryl Leah Shammas.

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North Carolina Supreme Court Rejects 1st Amendment Challenge to Social Networking Ban for Sex Offenders

The North Carolina Supreme Court has rejected a 1st Amendment challenge to a provision of state law that forbids convicted sex offenders from accessing most commercial social networking websites, such as State v. Packingham, 2015 WL 6777114 (Nov. 6, 2015).


Lester Packingham, a convicted sex offender, established a page using the name J.R. Gerrard. A Durham Police Department officer investigating whether any convicted sex offenders were on recognized Packingham from his profile photo, triggering a search of Packingham’s residence that turned up a copy of a notice of “Changes to North Carolina Sex Offender Registration Laws” that specified the kind of social networking sites prohibited to sex offenders that he had signed, so he could not credibly raise a procedural due process argument that he was unaware of the prohibition. The prohibition specifically extends to any commercial social networking website to which minors may subscribe. fits within this description.


Packingham was indicted for violating the statute. The trial court denied his motion challenging the facial constitutionality of the provision, finding that it was constitutional as applied to him. He was then sentenced to jail time and probation. The court of appeals reversed, finding that intermediate scrutiny applied to this speech-targeted statute, and that the statute was too vague to withstand review by failing to “target the ‘evil’ it is intended to rectify” because of the sweeping prohibition extending to all social networking websites.


The Supreme Court vote was 4-2 to reverse, with one member not participating. Writing for the court, Justice Robert Edmunds held that the statute was a regulation of conduct, not speech, and that the legislature had a rational basis for enacting it in order to protect children from being approached by sex offenders through social networking websites. He pointed out that a sex offender was not barred from using the internet as a whole, and that there were plenty of websites apart from commercial social networking websites where he could express his views and interact with others.


Justice Robin Hudson, dissenting, agreed with the court of appeals that the statute regulates speech and fails to meet the test of heightened or strict scrutiny. Justice Cheri Beasley joined Hudson’s opinion in dissent.


Packingham is represented by an appointed Appellate Defender, Glenn Gerding. Perhaps the ACLU or a similar free-speech organization will step up and assist Packingham in seeking United States Supreme Court review.  The dissent makes cogent arguments about why the majority decision misses the mark on 1st Amendment grounds.

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When Gay Couple Breaks Up, Who Gets the Pooch?

Douglas Gellenbeck and Michael Whitton were domestic partners for thirteen years.  In 2008, they bought a co-op studio apartment together on East 11th Street, and the next year they registered their domestic partnership with New York City.  Some time during their relationship Stevie, a dog, entered their life as well.  Now Stevie is at the center of a heated custody dispute in Gellenbeck v. Whitton, Docket No. 154365/2014, NYLJ 1202741935478 (N.Y. Sup. Ct., N.Y. County, Oct. 26, 2015).

This once-happy family broke apart in 2014.  Whitton, who had fallen behind in paying his share of the co-op costs, moved out.  Gellenbeck filed a complaint in New York County Supreme Court on May 5, 2014, claiming that Whitton had not contributed to the costs of maintaining the apartment since July of 2012, and that Gellenbeck no longer desired to “own or hold the apartment in common” with Whitton.  Since it was a studio with only one entrance and one bathroom that could not be physically divided between the two men as separate apartments, Gellenbeck asked the court to authorize a sale and distribution of the assets, taking into account that Gellenbeck had paid the initial 20% down-payment and had, over time, paid the majority of the expenses, and thus should received a majority of the proceeds. After Whitton had filed his answer to this complaint on his own without legal representation, arguing that the apartment could be physically divided between the two men, Gellenbeck took the logical step of filing an affidavit with the City on June 17 dissolving their domestic partnership.  Although Whitton contested some of this and obtained legal counsel, Justice Arthur F. Engoron agreed with Gellenbeck on the disposition of the real estate in an opinion issued on March 2, 2015 (2015 N.Y. Misc. LEXIS 637).

But Stevie turned out to be a continuing subject of contention.  In his complaint, Gellenbeck described Stevie as “a tan, female, mixed-breed, part Basenji dog.”  Gellenbeck claimed that Whitton had given Stevie to him as a birthday gift, and that Gellenbeck was the “registered owner” in terms of the required license from the health department, so he should keep Stevie. Gellenback asked the court to issue a declaration that he is the owner of Stevie, and a permanent injunction against Whitton claiming any status as Stevie’s owner.

Whitton sharply disputed this, pointing out that he had “adopted” Stevie from a dog adoption agency and, he claimed, had been the stay-at-home partner who had spent more time taking care of the dog.  In effect, Whitten argued it was in the dog’s best interest that Stevie should be his.

Apparently moved by the affection of both men for the dog, Engoron decided in his March 2 opinion, based on a prior state trial court opinion in a similar dispute, that he would make a decision about “what is best for all concerned,” placing the burden on both parties to prove why Stevie would have “a better chance of living, prospering, loving and being loved” in the care of one partner as opposed to the other, in a proceeding that would be similar to warring parents trying to prove that it would be in the best interest of a child to be in the custody of one rather than the other.

Furthermore, Engeron denied Gellenbeck’s request for a preliminary injunction barring Whitton from the apartment and giving Gellenbeck “exclusive right of possession” of Stevie until the case was concluded.  He reasoned that until the apartment was sold Whitton was technically a co-owner, and that until the evidence was presented on the “best interest” issue regarding Stevie, it was not clear that Gellenbeck would prevail.

Since then, however, another New York County Supreme Court Justice, Geoffrey Wright, has issued another opinion in a dog custody case, Szubski v. Conrad (July 13, 2015), holding that pets are property, not people, and so the question of ownership should be decided by reference to property law, and not to the family law principle of “best interest of the child” familiar from the custody cases.  Szubski involved a dispute between a man and his former girlfriend about the ownership of a Doberman pinscher.  The girlfriend claimed it was best for the dog to be with her, but the judge decided with the man, who was clearly the owner of the animal.

In a new ruling issued on October 26 and published by the New York Law Journal on November 10, Justice Engoron backed away from his earlier decision.  He found that attempting to “harmonize” his ruling with Justice Wright’s ruling “would be problematic, if not impossible.”  Evidently Wright’s opinion had changed Engoron’s thinking since March.  “Logically,” Engoron wrote, “the word ‘all’ in the phrase ‘best for all concerned’ must either refer to all humans or to all humans and animals.  Assuming the former, if the courts were to decide cases based on the nebulous ‘best for all concerned’ standard, we would perforce redistribute earth’s wealth in a manner the likes of which hitherto have not been seen.  This might be good, bad, or indifferent, but authority to do so would have to come from the state or federal government, or some higher power.”

He went on to note that Justice Wright “emphasized the difficulty in determining what is best for animals who, after all, cannot exactly tell us what they want.  But what if they could?  Or what if we could determine that on our own?  Are courts obligated to take into account what is best for animals?  That would seem to depend upon whether animals have rights, specifically, the right to have courts take into account what is best for them.  Of course, this is, and arguably has been for some time now, a hot-button topic,” referring to a recent case that held that a court could not issue a writ of habeas corpus to release a chimpanzee from captivity, since animals don’t have constitutional rights.

Engoron now has concluded that “animals do not have rights,” being persuaded by Wright’s opinion as well as the chimpanzee case.  “Evolutionary psychologists would say that membership in the same gene pool confers rights; but much as humans love Stevie, they cannot procreate with her.  Some, including this Court, would say that a Rousseauian ‘Social Contract’ confers rights; but, alas, only human beings are deemed to have contract rights enforceable at law.  Some would say that ‘policy’ confers rights; but policy is for the legislature, law is for the courts.  One could posit that historical antecedents confer rights; but historically, Anglo Saxon law has conferred rights on people, not pets.”

Finally, Engoron observed that some would say that rights are derived from a “Supreme Being,” quoting from the Declaration of Independence.  “Alas,” he lamented, “the drafters equated people with each other, not with animals, and made no mention of the latter being endowed with any right.  If a ‘Supreme Being’ has bestowed rights on animals,” he concluded, “they need to be enforced elsewhere than in ‘Supreme Court.'”

Engoron went on at further length about the consequences of conferring rights on animals, and noted defensively “the Court’s prior ownership of Humprey the basset hound and Wabber the tabby cat, which were beloved beyond all reason.”

“Thus,” he concluded, “Stevie, for all the joy she brings to this world, does not have the right to have a court of law dictate a decision, in whole or even in part, on what is best for her.  Accordingly, this Court simply erred in declaring that a ‘best for all concerned’ standard should be applied to the hearing that still needs to be held in this case.  The correct law is the law of property, and this Court will determine and award possession of Stevie according to that law, and no other.”

The hearing to decide this question will take place on December 10.   Attorney David Wolf of Steven Landy & Associates represents Gellenbeck.  Daniel S. LoPresti represents Whitton.  Since she has no rights, no lawyer has been designated by the court to represent Stevie, whose opinions will not be consulted by the court on December 10.

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The Bitter-Enders in the World of Marriage Equality

When the Supreme Court says it’s done, then it’s done, right?  Well, not necessarily in Mississippi, where resistance to the impact and consequences of marriage equality lingers.  In recent days, the Mississippi Supreme Court has weighed in — sort of — on gay divorce, and a trial judge in Hinds County heard arguments about the state’s continuing ban on “same-sex” adoption.

The divorce case, Czekala v. State, No. 2014-CA-00008-SCT (Nov. 5, 2015), involves a lesbian couple who went to California during the freedom summer of 2008 and got married, then returned to continue living in Mississippi.  Lauren Beth Czekala-Chatham and Dana Ann Melancon separated on July 30, 2010 and Lauren filed a divorce action in the Chancery Court of Desoto County on September 11, 2013.  Why the wait?  This writer speculates that Lauren did not feel any urgency about filing for divorce so long as neither Mississippi nor the federal government recognized the marriage, but on June 26, 2013, the U.S. Supreme Court struck down the Defense of Marriage Act in the Windsor case and suddenly there were consequences under federal law if the marriage was not legally ended.

The problem was that Mississippi did not recognize the marriage.  For whatever reason of her own, Dana Ann decided to oppose the divorce, filing a motion to dismiss the case on the ground that her marriage was “null and void” in Mississippi.  Lauren responded with a motion to declare the state’s ban on recognizing the marriage unconstitutional.  This woke up the state, which moved to intervene to defend its marriage ban.  The chancery court judge upheld the marriage ban and dismissed the divorce petition.  Lauren appealed to the Mississippi Supreme Court, which heard oral argument on January 21, 2015, less then two weeks after the U.S. Supreme Court agreed to review the Obergefell v. Hodges case on marriage equality.

After the U.S. Supreme Court ruled on June 26 of this year, Lauren moved for an entry of judgment based on Obergefell.  If states cannot refuse to let same-sex couples marry or to recognize their marriages, she argued, then there was no reason for Mississippi to refuse to consider her divorce petition.  The attorney general agreed that under Obergefell the court should grant Lauren’s motion and send the case back to the chancery court.  This was enough for five members (a majority) of the court, which found that “no contested issues remain for resolution” and granted Lauren’s motion without further explanation.  This set off squabbling on the court, with four judges writing or agreeing with various objecting decisions and one judge writing a separate concurring statement joined by another.

The main points of contention were whether it was irresponsible of the court not to issue a full ruling on the merits, and further, at least on the part of two judges, whether the majority of the court had violated their oaths of office by following an “illegitimate” U.S. Supreme Court decision, which in turn drew responses from other judges on their duty to follow U.S. Supreme Court constitutional rulings.

Seizing upon irresponsible and intemperate statements by the four dissenting Supreme Court justices in Obergefell, Justices Jess H. Dickinson and Josiah D. Coleman insisted that Obergefell is an illegitimate ruling that should not be followed by the courts of Mississippi.  This extreme view is fanned by dozens of academics who have lent their names to a website instigated by Professor Robert P. George of Princeton University, an obsessive homophobe, under the title “Statement Calling for Constitutional Resistance to Obergefell v. Hodges.”  Using selective quotations from the four Obergefell dissents and out-of-context quotations by other historical luminaries, Prof. George and the dissenting Mississippi justices take seriously Chief Justice John Roberts’ parting shot in his dissent — that the decision has “nothing to do with the Constitution.”  If that is so, wrote Justices Dickinson and Coleman, then it would violate their oaths of office to comply with that ruling.  Dickinson included in his dissent the list of the signers on Prof. George’s website to support the argument that Obergefell is an “illegitimate” decision.

Even on the very conservative Mississippi Supreme Court this assertion drew only two votes.  Others objecting to the majority’s handling of the case would have preferred that the court issue a full ruling on the merits discussing the Obergefell case and explaining why its federal constitutional mandate would extend to striking down Mississippi’s marriage and recognition bans.  Indeed, one of the objecting judges included in his opinion the full text of what he would prefer the court to have issued as an opinion on the merits.  These judges argued that it was important for the state’s high court to explain for the benefit of the lower courts and the public about the current status of Mississippi law in light of Obergefell.

The lack of such affirmative guidance may be felt in the adoption litigation, where the state persists in arguing that it is not required to allow the same-sex spouse of a military service member to adopt their child who was born while the birth mother was living in Mississippi.  Attorney Roberta Kaplan, who represented Edith Windsor in the successful challenge to the Defense of Marriage Act, represents Donna Phillips and Jan Smith.  According to a news report about the case, Mississippi is the last state to have a statutory ban on same-sex couples adopting children, and the state is continuing to defend that ban in this case, even though it threw in the towel in the divorce case.

Phillips, the birth mother, happened to be stationed in Mississippi when she gave birth.  Now, as her spouse Jan Smith explained in an interview with WJTV on November 8, “We live our lives just like everyone else.  She was deployed. We struggled.  It was hurtful.  It was tough.  With that we just want the same protection that everyone has for their children.”  Said Phillips, “We want Jan’s name to be on our daughter’s birth certificate.  That’s all we are looking for, so she has equal rights to take care of her and to do what’s necessary for our daughter.”

Kaplan pointed out, “It’s very hard to say gay couples have the right to marry but they don’t have the right to adopt.”  But attorneys for the state insisted that the state’s ban remains constitutional, despite Obergefell, and urged the court to dismiss the case.  The judge reserved judgment at the end of the hearing, with no firm deadline for ruling on the case.

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Fantastic Young Singers for a NYC Musical Weekend

New York City is definitely the place to be if you want to hear lots of fantastic opera and art song singers in unusual settings.  That was my experience this weekend, when I attended the Brooklyn Art Song Society’s program at the Old Stone House in Brooklyn, and Venture Opera’s presentation of Mozart’s Don Giovanni at the Angel Orensanz Foundation on the Lower East Side of Manhattan.

Brooklyn Art Song Society is a project of its musical director and chief pianist, Michael Brofman, who is a very accomplished pianist and collaborator with singers.  One of the series he is presenting this season is Britannica, a survey of English art song ranging from the Baroque era to modern days.  On Friday afternoon, November 6, he presented the second program in the series: Britannica II: In Memoriam: Songs of the Great War.  The “Great War” from the British perspective is World War I, whose centennial we are in the midst of marking (1914-1918).  The war stimulated many British poets to produce meditations on war and death, and many British composers set them to music, including some who served in the conflict (and among whom we have important losses to mourn).  The 20th century vogue of adapting the typical melodies and harmonies of English folk song into art songs was at its height at the time most of these songs were written, resulting in music that is both accessible (certainly by comparison to what the leading-edge composer of Europe were producing) and achingly beautiful.

This program presented three very talented young singers:  baritones Jarett Ott and John Moore, and tenor Dominic Armstrong.  Mr. Brofman was the pianist for Ott and Armstrong, while Miori Sugiyama collaborated with John Moore.  The first half was all-baritone, the second half was given over to Armstrong & Brofman for a rare performance of both books of settings by George Butterworth of verses from A. E. Housman’s collection titled “A Shropshire Lad.”  Butterworth served in a combat unit and died at the front, a tragic loss to music.  Moore sang Ralph Vaughan Williams’ cycle “The House of Life,” setting verses of Dante Gabriel Rosetti, a poet who long predated the Great War, but the tie-in here is Vaughan Williams’ service driving an ambulance at the front and the themes of these poems which complement the overall theme for the concert.  Ott sang a variety of songs: two by Ivor Gurney, one by Gerald Finzi, and a rarity by William Dennis Browne, another composer lost in military service during the Great War.

All three singers made a deep impression on me.  Although still at the outset of their careers, they have already accumulated a wealth of experience, including opera at major houses, soloing with major orchestras, and highly regarded recital series.  To get to hear them in the small space of the Old Stone House, which felt almost like a private salon event, was an extraordinary privilege.   Unfortunately the next concert in this series presents a scheduling conflict for me, so I will have to miss the third in the series on December 3, which will present Armstrong and Sidney Outlaw singing works by Finzi and Vaughan Williams at the Brooklyn Historical Society.  This is urgently recommended for those who love English song or want to make its acquaintance.

It would be hard to top the musical experience I had Friday night, but then Sunday night brought Venture Opera’s first presentation of its inaugural season, Mozart’s Don Giovanni at the Angel Orensanz Center on Norfolk Street in Manhattan’s lower east side.  This building was constructed as a synagogue at a time when the neighborhood was solidly packed with Jewish immigrants a century ago.  After the neighborhood had changed drastically and the congregation diminished to a point of not being able to sustain the building, it was deconsecrated and turned into an arts center.  Some of the original iconography remains, but the space has been well adapted to support theatrical and musical events.

This Don Giovanni, conducted by Ryan McAdams (with a competent chamber orchestra assembled for the purpose from NYC’s extraordinary pool of freelance musicians), and imaginatively directed by Edwin Cahill, was absolutely, completely thrilling.  The excellent young cast included Philip Cutlip as Don Giovanni, Eric Downs as Leporello, Christian Zaremba as Il Commendatore, Amy Shoremount-Obra as Donna Anna, Yujoong Kim as Don Ottavio, Marquita Raley as Donna Elvira, Matthew Patrick Morris as Masetto, Cecelia Hall as Zerlina, and a fine collection of supporting players and choristers.  The space doesn’t lend itself to a traditional opera production.  Instead of an orchestra pit, the instrumentalists were assembled in a space under the side balcony to the left of the stage, such that Mr. McAdams could be seen by both the orchestra and the singers, although coordination was challenging and not always infallible.  There is a raised area in front, but no proscenium, but the entire space of the synagogue was enlisted in the production, with a fair amount of the singing taking place in the center aisle and the balconies being pressed into use as well.  No sets, as such, with everything being accomplished through movement, costumes, makeup and lighting.  The performance was in Italian with English projected titles on a screen suspended above the staging area.

What was thrilling about this performance?  First, McAdams provided vigorous leadership, tempos on the bright side for the most part, the action ever moving forward without any loss of momentum.  Second, the staging involved the audience in the drama at every moment, the action taking place amidst us much of the time.  Third, the fine acoustics of the old synagogue sanctuary made it possible to hear all the singers without any amplification at all times, with the placement of the orchestra off to the side providing sound that was clear and well balanced but sufficiently restrained by McAdams so that the singers could all be heard.

But, perhaps most importantly, all of the singers were magnificent.  Cutlip captured the rogue in Don Juan from the first moment.  Downs as Leporello was positively Satanic, giving an energetic performance that dominated the scenes in which he appeared, but without inappropriately tipping the balance between the characters.  Shoremount-Obra and Marquita Raley as the two Donnas were commanding and fully in charge of Mozart’s vocal pyrotechnics.  Young Morris and Hall won everybody’s hearts as the young couple whose wedding is screwed up by Don Juan’s machinations.  Zaremba was the Commendatore to the life – and his return as the Stone Guest in the final scenes was spine-chilling.

This was the second of three performances, the last to take place on Tuesday, November 10.  It appeared that Sunday’s performance was sold out.  Such is the hunger for good opera in New York.  I would estimate the audience capacity of the space at around 250.  If tickets remain for the last performance, they should be snatched up quickly.  Venture Opera has a minimalist website at this point, and future plans are still in formative stages.  They make bold to announce Bizet’s Carmen for February presentation, but neither the participants nor the venue are revealed yet, and tickets are not available to purchase.  I hope to be there.  This kind of immediate and involving opera is a rare treat, and NY’s music-lovers should hasten to support it.

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Jury Scrutiny of Chest Hair Patterns?

Will a Manhattan jury have to figure out whether a gay man can be identified by the pattern of his chest hair? Maybe, if the lawsuit brought by Doug Hill and James Moritz against plastic surgeon Douglas Steinbrech actually goes to trial in New York County Supreme Court.  Supreme Court Justice Cynthia Kern granted summary judgment to Dr. Steinbrech on some of the gay couple’s claims on September 28 in Hill v. Steinbrech, 2015 N.Y. Misc. LEXIS 3562, 2015 NY Slip Op 31827(U), but she refused to do so on others, finding, for example, that it was a jury question as to whether a photograph of Mr. Moritz’s torso running from his chin to his knees would be recognizable enough based on the distinguishing features of his chest and facial hair to constitute an unauthorized appropriation of his image for commercial purposes under New York’s Civil Rights Law.

Hill and Moritz describe themselves as a “well-known gay couple in Chelsea.”  This lawsuit may increase their fame!

Between January 2012 and October 2012, they retained the services of Dr. Steinbrech and his professional corporation, Gotham Plastic Surgery, to have some work done.  Apparently their goals included pec enhancement for Hill and tightening up the butt for Moritz.  As plastic surgeons generally do, Dr. Steinbrech made “before and after” photographs to document his work.  He also made a video recording of Hill after completing the procedures.

Hill and Moritz claim that more than a year later, in May 2014, they were surprised to find that their “before and after” photos appeared on “numerous commercial websites” without their consent.  They provided Justice Kern with photos and screen shots which they claim “depict their pre and post-operative states,” although as to some of these images one would have to take it on faith because their faces are not shown.

Justice Kern itemized the images presented to her: (1) a screen shot of the website, which contains what appears to be a video advertising defendants’ work that includes a picture of Hill’s chest in a pre and post-operative state; (2) a screen shot of the website, which contains an advertisement for defendants with a similar photo of Hill’s chest; (3) a screen shot of search results from google under the heading ‘Pec implant testimonial of NYC patient’, depicting a youtube video showing Hill in a post-operative state; (4) a screen shot of a commercial website advertising defendants’ services known as Men’s Plastic Surgery Manhattan, which includes photographs of Hill’s torso in a pre and post-operative state from a front and side angle; (5) a screen shot of a video posted to youtube entitled ‘Pec implant testimonial of NYC patient’ in which Hill is shown in a post-operative state; (6) a screen shot of a youtube video which purportedly includes a picture of Moritz’s buttocks in a post-operative state; (7) a frontal torso shot of Moritz in a post-operative state; and (8) a flier advertising defendants’ services which purportedly includes a side angle shot of Moritz’s buttocks in a pre and post-operative state.

Justice Kern wrote that in the youtube videos Hill’s face and torso tattoo are visible.  In the still pictures of Hill, on the other hand, Hill’s face is not visible but his tattoos on his torso and shoulder are.  The pictures of Moritz’s buttocks include nothing further than this portion of his body, but the frontal picture of Moritz shows from his chin to his knees.

The men advanced five different legal claims, but Kern explained that all of the other claims were preempted by an old New York statute, Civil Rights Law Sections 50 and 51, commonly known as the Privacy Act.  The Privacy Act provides that a person’s image cannot be used without their written consent for “advertising or trade” purposes, and authorizes those whose images are used without their consent to sue for damages, including punitive damages for intentional violations of the statute.

Justice Kern rejected the argument that the defendants could not be liable for any picture where a face is not shown.  “Rather,” she wrote, “the question is whether the objectionable material presents a recognizable likeness of the plaintiff,” which is “generally a jury question unless plaintiff cannot be identified because of the limited subject matter revealed in the photograph or the quality of the image.”  If the person in the photograph “is capable of being identified from the advertisement alone and that plaintiff has been so identified,” the court will not grant summary judgment to the defendants.

As Hill had submitted some pictures in advertisements from which he could readily be identified by his face and swore that he had not provided written consent for their use in advertising, Justice Kern granted summary judgment in his favor with respect to those images, as the consent forms produced by the defendants did not specifically authorize that they be used in advertising.  Hill had signed a consent form allowing pictures to be taken and disseminated “with the exception of his bodily tattoos,” but his tattoos were in the pictures and the video.  The defendants also offered a video in which Hill “says ‘I don’t care’ in regards to showing his tattoo in the video,” but this would not suffice under the law, which requires a signed, written consent for commercial use.

Moving to Hill’s photos that did not show his face, Justice Kern ruled that she couldn’t grant summary judgment in his favor as to those because a jury would have to decide whether he was recognizable from those pictures.  Since they did show his tattoos, “which are a distinguishing feature,” wrote Kern, the jury would have to decide whether they were recognizable as him.  Because there were distinguishing features, the judge could not rule against Hill as a matter of law.

Moving on to the Moritz photos, Justice Kern found that he was not entitled to summary judgment on the claim that the picture of his front torso was used for advertising purposes because the only evidence he presented was the photo itself, which was not clearly part of an advertisement.  He claimed that it was used in an advertisement, and defendants denied it, so there was a question of fact for a jury to sort out.  Furthermore, wrote Kern, “even if the picture was used for advertising purposes, summary judgment is inappropriate as there remains an issue of fact as to whether Moritz is identifiable from the picture alone.  The court cannot say that Moritz is identifiable from the picture as a matter of law.  Indeed, the only portion of Moritz’s face depicted in the picture is the lower portion of Moritz’s chin.  However, the picture contains distinguishing features such as Moritz’s facial and chest hair.  Thus, based on these distinguishing features, the court finds that a jury could find that Moritz is capable of being identified by the picture alone and, as such, determination of that issue must be left to the jury.”  The judge found that because the picture included Moritz’s chin — which by dictionary definition is part of his face — it exceeded the scope of the written release he had signed, which excluded disseminating pictures of his face.  This is the picture where the jury would have to find that the facial and chest hair and other features are distinctive enough to identify Moritz from the picture.

Bringing up the rear, as it were, is the advertisement that Moritz claims depicts his buttocks pre and post operative.  “As an initial matter,” wrote Justice Kern, “on their face, the pictures are devoid of any distinguishing or identifying features.  Further, Moritz has failed to present any evidence that he has actually been recognized from these pictures.  Thus, these pictures are not actionable and defendants are entitled to summary judgment dismissing Moritz’s claim for violation of the Civil Rights Law based on defendants’ alleged use of these pictures for advertising purposes.”  Alas, poor Moritz, thy butt is undistinguished and anonymous, as a matter of law.  All butt men who read this doth protest!

We wonder how coincidental it is that this case was assigned to Justice Kern, a lesbian, to decide?  Actually, we know that the cases in Supreme Court are assigned at random, but we couldn’t resist the irony.

Any volunteers for the jury?


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New York Trial Court Holds New York Property Acquired During a Vermont Civil Union is Not Subject to Equitable Distribution in New York Dissolution Proceeding

In a rather complicated opinion, New York Supreme Court Justice Richard A. Dollinger ruled on October 23 that New York property acquired by Deborah O’Reilly-Morshead during her Vermont Civil Union with Christine O’Reilly-Morshead is not subject to equitable distribution under New York law in the current divorce proceeding between the women, who married in Canada after the property was acquired. O’Reilly-Morshead v. O’Reilly-Morshead, 2015 N.Y. Misc. LEXIS 3843, 2015 NY Slip Op 25354 (Supreme Ct., Monroe County).

Deborah and Christine began their relationship in 2001 while living in Indiana, where they had a “union ceremony” with no legal significance. They moved to New York in 2002, Deborah selling a house she owned in Indiana. They went to Vermont in 2003 and contracted a civil union, while continuing to reside in New York. In 2004 Deborah used the proceeds from the sale of her Indiana house and her other resources to buy a house in Rochester, New York, which was recorded in her name only. In 2006, the women ventured up to Canada to marry, continuing to maintain their residence in Rochester. Five years later, Deborah filed a divorce action in Monroe County Supreme Court, seeking equitable distribution of “marital property.” She excluded from that category the house, which she had purchased with her own assets prior to the marriage. Christine countersued for divorce and dissolution of the Vermont Civil Union (calling on the equitable powers of the court for the latter), and contended that the house, purchased %after% the parties contracted their civil union, should be considered property of the civil union subject to distribution under Vermont law, and so should be included as part of the marital property subject to dissolution in the New York proceeding. As the parties could not resolve their dispute about the status of the house, it fell to the court to decide both whether it had the power to dissolve the civil union and also whether it had the authority or power to make an order regarding ownership rights to the house.

Relying on prior court decisions finding that New York Supreme Court justices can dissolve civil unions drawing upon their general equitable powers, Judge Dollinger had no trouble deciding that he could grant Christine’s request to dissolve the civil union, but dealing with the house was a more complicated matter.

The court’s authority to distribute property in a divorce proceeding is not based on general equitable principles, but rather on the equitable distribution provisions of New York’s Domestic Relations Law, a statute passed by the Legislature that provides that “marital property,” defined as property acquired during the marriage of the parties, is subject to distribution between the parties upon divorce. Clearly, this house was not acquired “during the marriage.” While it was clear to the court that if Christine brought an action to dissolve the civil union in Vermont, a Vermont court could treat the house as “property of the civil union” and thus subject to distribution between the civil union partners under Vermont law, it was not clear that a New York court would have that authority, and a review by Justice Dollinger of New York case law provided, in his view, little support for Christine’s argument.

He wrote, “This court considers ‘marital property’ as defined by the Legislature in the Domestic Relations Law as the linch pin on which New York’s entire system of marital property distribution rests. If the property is ‘marital,’ the court can equitably distribute it. If not, the court has no jurisdiction to change title or ownership to it. Because of the central importance of creating an exact context in which courts could order a transfer to title to property, the Legislature adopted a black line test for determining when ‘distributable property’ existed in a marriage. The date of marriage – and no other date – is the time when ‘marital property’ exists,” citing Dom. Rel. L. sec. 236(B)(1)(c). While the courts have adopted a broad definition of “property” for purposes of enforcing this statute, Dollinger wrote, they had not adopted a broad definition of “marital,” adhering strictly to the statutory definition. On top of this, of course, when adopting its Civil Union Act in 2000, the Vermont legislature included a provision expressly declaring that a civil union is not a marriage, and Dollinger saw no basis for arguing that a New York court should or could treat a Vermont civil union as a marriage.

He also rejected the notion that the court could apply the doctrine of “comity” in order to treat the property the way it would be treated under Vermont law, pointing out the difficulties that would ensue in dealing with property claims based on a civil unions and domestic partnerships from the various jurisdictions where those statuses were created during the period between 2000 and the Supreme Court’s marriage equality decision on June 26, 2015. This would require New York courts to inquire into the nature of legal relationships in other jurisdictions and how they treated property distributions upon dissolution.

While he noted that some other states had dealt with this problem through express statutory provisions when adopting their marriage equality laws – notably Vermont and New Hampshire – and that the Massachusetts Supreme Judicial Court had accorded marital-like status to Vermont civil unions for some purposes, he observed, “Neither the New York Legislature nor the Court of Appeals has yet moved New York’s law into the same orbit as our neighboring sister states. The Legislature, in the Marriage Equality Act, simply made same-sex marriage legal in New York. It did not mandate that same-sex couples, who were united in civil unions in other state, acquired property rights through that civil union that are equal to the property rights granted to married couples.” By contrast, Vermont’s marriage equality law says that civil unions from other states would be treated as equivalent to marriages in Vermont. If the New York legislature were to amend the NY Marriage Equality law to add similar language, this problem would disappear.

For those tracking the development of these issues in New York, Justice Dollinger’s opinion provides a useful summary of the court opinions that have had to grapple with how civil unions elsewhere should be treated by New York courts. Unfortunately, none of them provides direct guidance about how to decide this case. Most of them deal with disputes involving custody, visitation and child support.

The judge also considered an alternative theory of treating the Vermont civil union as equivalent to a contract under which the parties agreed that property acquired during their civil union would be deemed jointly-owned property. There is precedent under New York law for the enforcement of express pre-nuptial agreements, for example, that would control the distribution of property, and the Court of Appeals has extended that concept to express agreements by non-marital cohabiting couples about their property rights, but has refused to enforce “implied” agreements based on cohabitation. While acknowledging that Christine’s argument along these lines “has a power logic,” Dollinger concluded that it went beyond what he was authorized to do under current law. “In this court’s view,” he wrote, “the proof problems and other complications that drove the Court of Appeals to deny recognition of an implied agreement for asset distribution between an unmarried couple are not present, in the same degree, in a civil union.” The Court of Appeals was worried about the problem of “amorphous” agreements that would not provide the kind of “black line” test that the term “marital property” provides. Dollinger acknowledged that this problem might not pertain to civil unions, which had well-defined contours in statutes such as Vermont’s Civil Union Act. “However,” he wrote, “whether this court should, in interpreting the Court of Appeals use of the word ‘amorphous’ in these opinions, conclude that the common use of this word was a springboard to change the definition of ‘marital property’ to include property – acquired during a statutory well-defined union in another state, but not acquired during a marriage – is, in view of this court’s limited authority, unwise. This interpretative reed – based on the use of the same word by justices more than two decades apart – is too tender to carry such weight.”

Ultimately, Dollinger concluded that the failure of the New York legislature to pass any statute recognizing out-of-state civil unions for any purpose effectively tied his hands. “There is no general common law of equity that is equivalent to the statutory creation of an equitable distribution power in the Domestic Relations Law,” he wrote, pointing out that the Court of Appeals has frequently ruled that a “marriage – of whatever type or from whatever jurisdiction – is the only touchstone for equitable distribution of property in New York.”

“In reaching this conclusion, the court is struck by the anomaly this case represents: this court is dissolving a pre-existing civil union, but only allowing equitable property distribution based on the couple’s marriage. Any ‘civil union’ property – which would be subject to distribution if this matter were venued in Vermont – remains titled in the name of the current title holder and is not subject to distribution,” he wrote. “In short, this court provides one remedy to the couple – dissolving the civil union – but declines to provide any further remedies based on their civil union. This court has no solution for this conundrum without violating longstanding principles of New York marriage-based laws. Any further answer rests with the Legislature.”

Justice Dollinger granted Christine’s motion for summary judgment to dissolve the civil union, but held “as a matter of law, that neither party is entitled to equitable distribution of any assets, acquired in their own names during the period of the civil union, prior to the date of marriage.” He reserved to trial the issue of the cross-claims for divorce and distribution of “marital property.”

This case presents a problem that is typical of transitional periods in the law, and over time the nationwide availability of marriage for same-sex couples will obviate the need to deal with this kind of issue. However, this case shows that such transitional issues may linger for many years, so it would be helpful for the Legislature to accept Justice Dollinger’s implicit invitation to add a provision to the Marriage Equality Law specifying how out-of-state civil unions and domestic partnerships should be treated in the context of dissolution proceedings brought in New York.

Deborah is represented by Debra Crowder of Badain & Crowder, of Rochester, and Christine is represented by Vivian Aquilina of Legal Aid Society of Rochester. The women have a child, whose interests in the divorce proceeding are represented by Lisa Maslow, also of Rochester.  There is, of course, the possibility that Christine could appeal Justice Dollinger’s ruling, which would go to the Appellate Division, 4th Department, based in Buffalo, and eventually to the Court of Appeals. Any legislative developments in response to the court’s invitation would be probably be too late to effect the outcome in this case.

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