New York Law School

Art Leonard Observations

9th Circuit Denies On-Line Newspaper’s Anti-SLAPP Motion Against Porn Star’s Libel & False Light Lawsuit

A unanimous three-judge panel of the U.S. Court of Appeals for the 9th Circuit affirmed a decision by District Judge George H. Wu to deny an anti-SLAPP motion by Associated Newspapers LTD, publishers of Daily Mail Online, which is being sued by “Danni Ashe,” a straight porn diva whose real name is Leah Manzari, over the use of her picture to illustrate an article about HIV in the porn industry.  Manzari v. Associated Newspapers LTD., 2016 U.S. App. LEXIS 13488, 2016 WL 3974178 (July 25, 2016).  Manzari, who asserts without contradiction that she is not and has never been HIV-positive, claimed that the publication would lead viewers to believe that she was infected, and sought $3 million in damages for libel and “false light” invasion of privacy.  The 9th Circuit agreed with Judge Wu that Manzari was likely to prevail on the merits of her tort claims.  Judge M. Margaret McKeown wrote the opinion for the court of appeals.

According to its legislative history, California’s anti-SLAPP statute (SLAPP stands for “strategic lawsuit against public participation”) was passed in response to “a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” It is intended to protect those who want to comment or publish on issues of public importance from nuisance suits intended to discourage their exercise of free speech.  When a defendant responds to a tort suit with an anti-SLAPP motion, the burden falls on the plaintiff to establish that “there is a probability that the plaintiff will prevail on the claim.”  In a non-SLAPP situation, a plaintiff can survive a motion to dismiss merely by alleging facts sufficient to suggest a plausible legal claim.  Thus, the anti-SLAPP device, putting a greater burden on the plaintiff, is supposed to protect free speech by nipping non-meritorious lawsuits in the bud, before the defendant incurs significant expenses in discovery and summary judgment litigation defending against a non-meritorious case.

This case arose when Daily Mail Online published a story about a “shutdown of the Los Angeles-area porn industry” in 2013 after a female performer, whose identity was not then disclosed, tested positive for HIV. The author of the article, James Nye, asked the photo desk to supply “some pictures representative of the pornographic film industry that contained no nudity” that could be used to illustrate the article.  He was provided with several “stock” photographs selected from the Corbis Images database, one of which was identified in that database as follows: “Soft porn actress Danni Ashe, founder of, poses in front of a video camera connected to the Internet in one of her studios in Los Angeles in 2000.”

Judge McKeown described the article in her opinion. “The headline read ‘PORN INDUSTRY SHUTS DOWN WITH IMMEDIATE EFFECT AFTER ‘FEMALE PERFORMER’ TESTS POSITIVE FOR HIV.’  After a few lines of text, the article contained a picture of Manzari lying suggestively across a bed with ‘In Bed With Danni” written in neon lights behind her.  Under her photograph was the caption: ‘Moratorium: The porn industry in California was shocked on Wednesday by the announcement that a performer had tested HIV positive.’”

Somebody reading further into the article would learn that the actress who tested positive was “new to the industry” and that “the performer was not immediately identified.” Other “stock” photos depicting other porn actresses also appeared in the article. Neither Danni Ashe nor Manzari was named in the text of the article.

Manzari’s attorney contacted Daily Mail Online when the article was published, demanding that the photograph be removed. Daily Mail made the change on their website, but the damage had been done, according to Manzari.  The original version of the article had been syndicated on the Internet. She claimed that a Google search returned the original version with her picture from websites around the world.  Worse, the version that showed up on a search screen would have the headline and her photograph, without any of the explanatory text as to the actress being “unknown.”  Consequently, she alleged, most of those who saw the article on line or as part of a search would conclude that “Danni Ashe” was HIV-positive.

Daily Mail argued that this was a frivolous lawsuit intended to chill their publication of a newsworthy story, and that the “stock” photograph was an appropriate illustration for the article. They pointed out that they never named Manzari (or “Ashe”) in the article or stated that the model in the picture was HIV-positive.  Furthermore, they pointed out, the article was a true news story on an item of public interest, thus entitled to strong First Amendment protection.  “There is no serious dispute that the libel and false light suit targeted speech protected by the anti-SLAPP statute,” wrote McKeown, so “the burden shifts to Manzari to show a reasonable probability of prevailing on the merits.”  Daily Mail also argued that Manzari, in the guise of Danni Ashe, should be treated as a “public figure,” which means that Daily Mail could be held liable to her only if it was shown that they had published the picture with “actual malice,” which in this case would mean with actual knowledge that it communicated a false meaning or with reckless disregard as to the truth.

Manzari is making two claims. The libel claim contends that an untrue publication that she is HIV-positive would be damaging to her personal or professional reputation, and the “false light” claim contends that the photograph provides an inaccurate depiction of her to the public in the context in which it is presented.  In any tort case, the plaintiff has to prove actual injury, although libel law traditionally presumes “actual injury” if a person is falsely depicted as having a “loathsome” disease, and sexually-transmitted diseases  such as HIV generally fall into that category, or is falsely described in a way that would be harmful to their standing in the profession.  Interestingly, the court’s opinion contains no discussion whatsoever about whether falsely implying or communicating that somebody is HIV-positive would harm their reputation or professional status.  This is silently assumed, perhaps because it struck the court that it would be obvious to anybody that saying that a porn actress is HIV-positive would adversely affect her ability to work in her chosen profession.

The court focuses instead on other factors in the legal analysis. For example, it makes a difference whether the plaintiff is a “public figure.”  People who have achieved sufficient fame or notoriety that they are recognizable to the public at large are deemed to be “public figures” whose activities are inherently newsworthy, and thus they face a high burden in trying to hold the press liable for reporting about them.  The court found that although Danni Ashe’s fame might be somewhat specialized, she nonetheless qualifies as a public figure. “Manzari is a pioneer in the online adult entertainment industry,” wrote the court.  “Her website, which she designed and launched in 1995, began generating multimillion dollar revenues in the early 2000s.  During this time, ‘Danni Ashe’ was one of the most well-known and popular soft-core porn actresses in the world, as well as a highly successful entrepreneur, with one of the most visited websites on the Web.  She retired from the adult entertainment industry in 2004 and sold, but the website remains active under that name.”  The court found that press references to Ashe supplied by Daily Mail Online supported its contention that the public figure rules should apply, which means that in order to deny the motion to dismiss her case, the court would have to find that she could probably win on the issue whether the false representation was made with “actual malice” to meet the constitutional standard.

Next, the court confronted Daily Mail’s argument that the article never mentioned Danni by name. Actually, that wasn’t true, as the picture itself had her first name in neon lights as background to her image.  “The bold headline and its content, juxtaposed with her photograph and yet another caption under her picture that said the industry was ‘shocked’ that a ‘performer had tested HIV positive,’ was sufficient for a reasonable reader to infer that Manzari was the performer who had tested positive for HIV,” wrote Judge McKeown, treating this as an “implied” defamation case.

Daily Mail argued that “this case is different from the classic defamation by implication case because it did not make any statement by including a stock photograph selected as a ‘good, nonobscene photograph to illustrate the article.’”  McKeown characterized this argument as “disingenuous,” saying that it “overlooks the fact that a photograph itself can convey both an implicit and an explicit message and that the headline, caption and photograph taken together are also a statement.”  The court found that when it considered the article “as a whole” and in its full context, “a reasonable reader could infer that the article is about Manzari.”

As to the “actual malice” requirement, it was clear that the Daily Mail Online had done nothing to determine whether the person in the photograph, who was clearly a porn actress, was HIV-positive. “This case rests on the ‘reckless disregard’ prong of actual malice,” wrote the court.  “Recognizing that California law requires only ‘minimal merit’ to withstand initial dismissal under the anti-SLAPP statute, we hold that Manzari has raised sufficient factual questions for a jury to conclude that the Daily Mail Online acted with reckless disregard for the defamatory implication in its article on the Los Angeles porn industry shutdown.  Manzari’s evidence is sufficient to support her claim that the Daily Mail Online placed her photograph in the article, juxtaposed with the incendiary headline and caption, knowing or acting in reckless disregard of whether its words would be interpreted by the average reader as a false statement of fact.”

Not only was it likely that readers would infer Manzari was the subject of the article, but Daily Mail’s editorial staff “actively removed key contextual information from the ‘Danni Ashe’ photograph as it was presented in the Corbis database,” replacing the database description, quoted above, with the language about the industry being “shocked” about an actress testing positive. “The publishers also failed to include any explanation or disclaimer adjacent to the ‘Danni’ photograph, which would have informed readers that she was not the subject of the article.”

Furthermore, the court gave little weight to the publisher’s denial of any intention to communicate to readers that Manzari was HIV-positive. “If all a publisher needed to do was to deny the allegation, all implied defamation suits would be dead on arrival,” said the court.  “If, for instance, a newspaper ran the headline: ‘High Profile Figure Accused of Murder’ alongside a photograph of the Mayor of New York City, or ‘Industry Shocked that Grocery Sprayed Veggies with Pesticide’ alongside an image of a nationally-known grocery chain, the publishers would be hard-pressed to plausibly claim that they had simply selected a ‘stock’ photograph.  The same holds true for a story about the pornography industry, featuring a picture of a world-famous pornographic actress with her name written in neon lights.”  In a sarcastic footnote, McKeown added, “One need only look to the Daily Mail’s own evidence of Manzari’s public figure status to confirm the ubiquity of her image and her identity.  Her image can hardly be relegated to the status of a ‘stock’ photograph.”

“This sort of willful blindness cannot immunize publishers where they act with reckless disregard for the truth or falsity of the implication they are making,” concluded McKeown. “Manzari meets the ‘minimal merit’ threshold to avoid outright dismissal of her complaint,” so the district court “properly denied the Daily Mail’s motion to strike Manzari’s complaint.”

The usual consequence of denial of an anti-SLAPP motion would be for the defendant to offer a settlement to the plaintiff, since the court has already concluded that there is a reasonable probability that the plaintiff would win the case before a jury. If Daily Mail wants to pursue its motion further, it could seek reconsideration by a larger panel of the 9th Circuit or petition the Supreme Court for review, but neither of those routes seems likely to result in a reversal of the panel’s logical and unanimous decision.  Time for Daily Mail’s liability insurer to step in.

Los Angeles attorney Steven L. Weinberg represents Manzari. Katherine M. Bolger of the New York firm Levine Sullivan Koch & Schulz LLP and California local counsel Louis P. Petrich of Leopold, Petrich & Smith PC, represent Daily Mail.

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Kansas’ Narrow Interpretation of Obergefell Rejected by Federal District Court

U.S. District Judge Daniel D. Crabtree, who had ruled on November 4, 2014, that the Kansas constitutional amendment and statutes banning same-sex marriage were unconstitutional, has issued a final ruling in that case, Marie v. Mosier, 2016 WL 3951744 (D. Kan., July 22, 2016), effectively finding that Kansas officials cannot be trusted to comply voluntarily with the Supreme Court’s marriage equality ruling in Obergefell v. Hodges, 135 S. Ct. 2584 (2015), without the prod of an injunction that would subject them to contempt proceedings if they fail to comply fully.  In light of the initial refusal by the state to issue appropriate birth certificates for children of lesbian couples, and continuing ambiguity about how state officials will handle such situations, the court rejected the state’s argument that the lawsuit should be dismissed as “moot” or that its prior rulings should be vacated as unnecessarily in light of Obergefell.

When Judge Crabtree issued his preliminary injunction in 2014, the 10th Circuit Court of Appeals, which has jurisdiction over Kansas, had already issued rulings prohibiting Oklahoma and Utah from enforcing their laws against same-sex marriage, and the U.S. Supreme Court had refused to review those rulings on October 6, 2014, so they had gone into effect.  Shortly afterward, however, the 6th Circuit had ruled against marriage equality, and in January 2015 the Supreme Court announced it would review that decision.  On June 26, 2015, the Supreme Court ruled in Obergefell that same-sex couples were entitled to the same marriage rights under state law as different-sex couples.  After Obergefell, the Kansas defendants moved to dismiss Marie v. Mosier as “moot,” but the plaintiffs moved instead to have the court issue a declaration that the Kansas ban on marriage equality was unconstitutional and to issue an injunction requiring the state to comply with Obergefell.  This responded to an argument that was being made by some marriage equality resisters that the Supreme Court’s decision applied only to states in the 6th Circuit, and to the announced opposition to the Supreme Court’s decision by Kansas Governor Sam Brownback and other Kansas officials.  The plaintiffs feared that Kansas would not give full effect to the “equality” requirement of the Supreme Court’s decision, despite assurances by the state’s attorney that it would do so.

At that time, Judge Crabtree decided to give the state the benefit of the doubt. On August 10, 2015, he issued a declaratory judgment, but withheld injunctive relief to give the state time to comply voluntarily.  Voluntary compliance did follow in many respects, such as issuing marriage licenses, but the plaintiffs responded to the state’s contention that it had complied voluntarily by bringing to the court’s attention two instances in which state officials had refused to issue birth certificates listing both mothers of children born to married lesbian couples.  Indeed, in one of those cases the mothers had gone into state court to get an order to issue an appropriate birth certificate, and the state initially resisted the state court order.  Subsequently both of those cases were resolved by the state issuing appropriate birth certificates, but contradictory statements issued from officials of the Kansas Department of Health and Environment, one suggesting that in future same-sex couples would be treated the same as different-sex couples when children were conceived through donor insemination, but the other stating that same-sex couples would have to alert the department in advance so that a case-by-case determination could be made about whether a birth certificate listing both women would be issued.

Judge Crabtree concluded that the case was not “moot” and an injunction was necessary. In this case, there was clear evidence that state officials were complying reluctantly with Obergefell, sometimes only under the prodding of court orders, so the court could not conclude that there was no longer an issue of whether same-sex couples in Kansas could expect to receive equal treatment from all instrumentalities of the state government in all circumstances.

“Exercising its remedial discretion,” wrote Crabtree, “the court has decided to grant a permanent injunction forbidding defendants (and their successors) from enforcing or applying any aspect of Kansas law that treats same-sex married couples differently than opposite-sex married couples. As the court noted last August, a significant value exists in giving public officials a reasonable opportunity to comply voluntarily with a mandate by the Supreme Court.  The record here shows that defendants have said they will comply with Obergefell and, in many instances, they have acted to implement the changes that compliance requires.  But even after Obergefell and even after this court’s declaratory judgment, the record also demonstrated one defendant’s department deliberately refused to treat two same-sex married couples in the same fashion it routinely treats opposite-sex couples.  This disparate treatment did not result from oversight, inadvertence, or decisions made at lower levels of the department.  To the contrary, the conduct involved officials who the court would expect to know about Obergefell, this court’s preliminary injunction [from 2014], and the defendants’ assurances that they intended to comply with Obergefell.  This conduct required one same-sex couple to file an action in state court to get something that an opposite-sex couple would have received as a matter of course.”

In reaching this conclusion, Judge Crabtree listed the decisions by judges in numerous other states who issued permanent injunctions against those states after the Obergefell decision upon finding that the cases were not “moot” because of actual or potential failures of those states fully to comply with Obergefell’s equality mandate.  These included decisions from Alabama, Florida, Nebraska, Arkansas, South Dakota, Idaho, and Louisiana.  The only court to reach a contrary conclusion was in South Carolina, where the state government had quickly fallen into line after the Supreme Court refused to review the 4th Circuit’s decision in the Virginia marriage equality case.  Given the birth certificate contretemps in Kansas, the case was clearly distinguishable.

Crabtree sympathized with the plaintiffs’ concern about “whether defendants will comply voluntarily with Obergefell without the judicial oversight that an injunction permits.”  His response to this concern was to provide that the court will maintain supervisory oversight for three years, which means that at the first sign that a government official in Kansas is denying equal treatment to a same-sex couple, direct application can be made to Judge Crabtree for relief without the need to run into state court and start a new lawsuit.  “The court finds that permanent injunctive relief could prevent future same-sex married persons from having to do what the Smiths had to do,” he wrote: “initiate a separate lawsuit and incur expenses to secure the equal treatment that Obergefell promises.”

In rejecting the defendants’ argument that Obergefell was a narrow ruling that did not address the issue of birth certificates for children born to same-sex couples, Crabtree pointed out that Justice Anthony Kennedy’s opinion for the Supreme Court specifically mentioned this issue!  “The Supreme Court found that the rights, benefits, and responsibilities of marital status include ‘taxation; inheritance and property rights; spousal privilege; hospital access; medical decision making authority; adoption rights; the rights and benefits of survivors; birth and death certificates; health insurance; and child custody, support, and visitation rules.’”  By quoting from the Obergefell opinion, Crabtree made clear that Kansas may not impose any different treatment on same-sex couples regarding any of these issues without running afoul of Obergefell.

He also rejected the bizarre argument made by Kansas that one lesbian married couple that encountered birth certificate issues was not entitled to recognition of their marriage under Obergefell because they were married in Canada and the Full Faith and Credit Clause refers on to other states.  Judge Crabtree pointed out that Kansas’s own marriage recognition statute provides that “all marriages which would be valid by the law of the country in which the same are contracted, shall be valid in all courts and places in this state.”  If Kansas automatically recognizes different-sex marriages contracted in other countries, Obergefell’s equality requirement would mandate application of this rule to same-sex marriages.

“In sum,” wrote Crabtree, “defendants’ argument that Obergefell’s holding was narrow is unpersuasive,” and he quoted Justice Kennedy’s comment that a “slower, case-by-case determination of the required availability of specific public benefits to same-sex couples would deny gays and lesbians many rights and responsibilities intertwined with marriage.”  “Perhaps defendants will provide the voluntary compliance with Obergefell that they promise,” Crabtree wrote.  “But the court cannot assign plaintiffs’ constitutional rights to such uncertainty.  In short, defendants’ assurances of future compliance do not provide the reliability that those rights deserve.”

The last issue before the court was an award of attorneys’ fees to the plaintiffs. He ordered them to submit their fee bill promptly, and if Kansas disputes the amount (which they will likely do, since the state’s budget has been decimated by Governor Brownback’s unrealistic tax-cutting measures, which have led, among other things, to a crisis in school funding that caused a confrontation with the state’s Supreme Court), Judge Crabtree will address the issue promptly.

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Colorado Wedding Cake Baker Seeks Supreme Court Review of State Court Discrimination Ruling

On July 22, 2016, Jack C. Phillips, proprietor of Masterpiece Cakeshop, Ltd., a Colorado business, filed a Petition with the U.S. Supreme Court, seeking review of the Colorado Court of Appeals decision rendered on August 13, 2015, which rejected his appeal of a ruling by the Colorado Civil Rights Commission that Phillips and his business had violated Colorado’s Anti-Discrimination Act (CADA) by declining service to a gay male couple seeking to purchase an appropriately-decorated cake for their wedding reception. The Petition for Certiorari in Masterpiece Cakeshop v. Colorado Civil Rights Commission was filed by lawyers from Alliance Defending Freedom (ADF), a self-described “Christian” law firm, with local counsel Nicolle H. Martin of Lakewood, Colorado.  The Colorado Supreme Court had issued an order on April 25 refusing to review the case, which set the 90-day clock running for filing a certiorari petition.

The Petition positions this as a First Amendment free speech and free exercise case. Arguing that the creation of a wedding cake is an expressive act signaling the baker’s approval of the marriage for which it is being created, Phillips’ attorneys argue that penalizing him under the state’s public accommodations law for declining an order for a wedding cake from Charlie Craig and David Mullins is, in effect, government-compelled speech.  Furthermore, they argue, since Phillips is a devout Christian who is compelled by his faith to withhold any expression of approval from same-sex marriages, application of the public accommodations law to him violates his right to free exercise of religion.  Furthermore, the Petition asserts, when it became public that Phillips had refused to bake a wedding cake for Craig and Mullins, another bakery provided one at no charge, so the men were not deprived of this important component of their wedding celebration.  At the time Craig and Mullins sought to order the cake, same-sex marriage was not yet available in Colorado.  Their intention was to marry in another jurisdiction and then hold their wedding reception in Colorado so that their family and friends could easily attend.

In arguing that the Supreme Court should review the case, the Petition contends that there is a division of authority in lower courts about the underlying constitutional issues. The Petition contends that the Colorado Court of Appeals ruling conflicts with cases from the 9th and 11th Circuit courts of appeals “regarding the free speech protection of art,” that it “deepens an existing conflict between the 2nd, 3rd, 6th, and 11th Circuits as to the proper test for identifying expressive conduct,” and that it “conflicts with free exercise rulings by the 3rd, 6th, and 10th Circuits.”  None of the cases mentioned, of course, involves the issue of a baker refusing to make a wedding cake for a same-sex couple.  Of course, the contention that this is about “art” depends upon the court accepting the Petition’s characterization of Phillips as a “cake artist”, not just a baker who happens to design and execute wedding cakes.

As part of his argument, of course, Phillips goes to great lengths to endow wedding cakes with heavy symbolic importance, insisting that a wedding ceremony is incomplete without one and that the spouses feeding each other pieces of cake is, in effect, the high point of the event. Not to denigrate the creativity and artistic talent that may go into producing a custom-designed wedding cake, there might be some question whether the baker who designs and executes the cake is an “artist practicing in a visual medium,” the phrase lifted from the 9th and 11th Circuit cases.  As to the cases upon which the Petition relies, see Buehrle v. City of Key West, 813 F.3d 973 (11th Cir. 2015) and Anderson v. City of Hermosa Beach, 621 F.3d 1051 (9th Cir. 2010), where the issue was whether a person denied a permit to operate a tattoo parlor in a particular location had thereby suffered a violation of his 1st Amendment free speech rights.  The Petition argues, based on these cases, “Applying the 9th and 11th Circuit’s analysis to the facts at hand leads to the inevitable conclusion that Phillips’ custom wedding cakes and artistic design process are pure speech.”  The Petition argues that those circuit courts “would reject any artificial separation between Phillips’ artistic process and the custom wedding cakes that result.”  The Petition suggests that only the Supreme Court can resolve the logical conflict between these tattoo cases and the wedding cake case.

The Petition also argues that there is conflict among the circuits about where to draw the line between speech and conduct in determining the regulatory power of the state. The Supreme Court has tangled with the issue of expressive conduct in some cases, but not so precisely as to avoid disagreements among lower courts about where to draw the line for purposes of applying free speech doctrine, argues the Petition.  Ironically, the leading case upon which the Petition relies to argue for a broad reading of expressive conduct is Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995), in which the Supreme Court unanimously held that a parade is an inherently expressive activity, thus privileging the organizers of Boston’s St. Patrick’s Day Parade under the First Amendment to determine its message and whether inclusion of a particular group, the Irish-American Gay, Lesbian and Bisexual Group of Boston, would add a message that the organizers did not want to express as part of their parade.  The Petition argues that baking a wedding case is also an inherently expressive activity, signaling the baker’s message of approval and congratulations to the marrying couple, which should not be compelled by the government.

Virtually the same issue was posed to the Supreme Court just a few years ago in Elane Photography, LLC v. Willock, 134 S. Ct. 1787 (2014), denying certiorari, 309 P.3d 53 (N.M. 2013), where the Court refused to review a ruling by the New Mexico Supreme Court that applying the state’s public accommodations law to a wedding photographer who objected to providing her services to a lesbian couple for their commitment ceremony did not violate the 1st Amendment rights of the photographer.  It would be difficult to argue that a wedding photographer is less of an “artist working in a visual medium” than a wedding cake baker, but there was not sufficient support on the Court to take that case, where the petition was presented after the Court had ruled in U.S. v. Windsor that the federal government must recognize same-sex marriages, but had not yet ruled in Obergefell v. Hodges that the states must afford the same marriage rights to same-sex couples that they do to different-sex couples.  So far, lower courts around the country have unanimously rejected claims by small businesses that their refusals to comply with public accommodations laws because of their religious or free speech objections to same-sex marriages enjoy constitutional protection.

Turning to the other First Amendment issue raised by the petition, Free Exercise of Religion, the Petition argues that because the Colorado anti-discrimination law allegedly allows for case-by-case religious exemptions depending on the reason for the exemption, the determination by the Colorado Civil Rights Commission whether Phillips and his cake-shop are entitled to a religious exemption in this case should be subjected to strict scrutiny by the Court.  Thus, argues the Petition, the state should have to show a compelling interest justifying this imposition on Mr. Phillips’ religious beliefs.  Phillips’ cake-shop is an incorporated business, so the argument also relies on the Court’s ruling in the Hobby Lobby case that businesses are entitled to claim religious free exercise rights based on the beliefs of their owners.  (The 5-4 ruling in Hobby Lobby depended on the vote of Justice Scalia, since deceased, and this would seem to be a decision very vulnerable to overruling depending on who is eventually confirmed for that seat on the Court.)  The Petition’s argument on this point seems curiously twisted, since the Supreme Court decisions it relies upon involve a state imposing criminal penalties for somebody engaging in a religious act, rather than, as in this case, somebody declining to provide a service in a business context based on his religious beliefs.

In both arguments, the Petition refers to counterexamples, stating: “It is undisputed that the Colorado Civil Rights Commission does not apply CADA to ban (1) an African-American cake artist from refusing to create a cake promoting white-supremacism for the Aryan Nation, (2) an Islamic cake artist from refusing to create a cake denigrating the Quran for the Westboro Baptist Church, and (3) three secular cake artists from refusing to create cakes opposing same-sex marriage for a Christian patron.” One suspects the first two are hypotheticals addressed during argument before the Colorado court, while the third seems to stem from a stunt that was undertaken in reaction to the filing of the civil rights charge in this case.  In each of these instances, whether hypothetical or real, the customer was asking the “cake artist” to create a particularized political statement on a cake, which would seem distinguishable from requesting the creation of a wedding cake that merely congratulations the couple on their wedding without making any overt political statement.

Disputes of this type continue to arise around the country in states and localities that ban sexual orientation discrimination in places of public accommodation, generating litigation in state courts when civil rights agencies rule against the businesses. Eventually this issue is likely to get to the Supreme Court if a genuine split of authority emerges.  It seems unlikely that the Court will take up the issue when there is no direct split among lower courts about how to handle the particular issue of business refusals to provide goods or services for same-sex weddings, especially when the Court is shorthanded and seems inclined to avoid granting review in cases where the Justices are likely to be evenly divided, but one can never say “never” with the Supreme Court.

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Massachusetts Appeals Court Vacates Statutory Rape Conviction Because of Improper Admission of Gay Porn in Evidence

The Appeals Court of Massachusetts ruled in Commonwealth v. Christie, 2016 WL 3581839, 2016 Mass. App. LEXIS 79 (July 6, 2016), that the conviction of a man on charges of statutory rape, indecent assault and battery on a boy had to be reversed because of improper evidence based on the defendant’s possession of videos depicting “generic same-sex sex” involving adults.  At the same time, the court affirmed the defendant’s conviction on a charge of “dissemination to a minor of matter harmful to minors” for showing his 12-year-old male victim a pornographic video.

In 2005, wrote Judge Rubin, Daniel “disclosed to his mother and the police a single alleged act of the defendant performing oral sex on him, and on that basis the defendant was charged with one count of statutory rape. On the eve of trial, in 2007, Daniel disclosed to the district attorney and the police all the other alleged sex acts.”  Police obtained a search warrant for the defendant’s residence, and turned up DVDs and videotapes depicting both heterosexual and homosexual pornography depicting adults.  At trial, Daniel testified that during the summer of 2005, when he was 12, he and his mother were living with the defendant, who twice performed oral sex on him and got him to penetrate the defendant anally.  He also testified about waiting in the car while defendant purchased a “sex toy” (i.e., a dildo) and some pornographic DVDs, and that the defendant “inserted the sex toy into Daniel’s anus, stopping when Daniel said he was ‘uncomfortable.’”  Daniel also testified that defendant showed him some gay pornography depicting men having intercourse.

The court described the defendant as “openly gay.” Referring to rulings at trial on admissibility of the pornography evidence, “the judge concluded correctly that evidence of a man’s homosexuality is irrelevant to whether he has a sexual interest in children,” wrote Judge Peter J. Rubin, “but in part in reliance on our decision in Commonwealth v. Wallace, 70 Mass. App. Ct. 757 (2007), he concluded that the same-sex pornography was relevant to the defendant’s sexual interest in Daniel and to the manner and means by which the charged rapes and sexual assault were allegedly committed, that the risk of unfair prejudice from this evidence did not substantially outweigh its probative value, and that with a proper limiting instruction the videotapes could be admitted in evidence.  The judge excluded the heterosexual pornography.”  As an attempt to lessen prejudice to the defendant, the trial judge refused to have the gay pornography exhibited to the jury, instead allowing the prosecution to introduce testimony describing its content.

The appeals court disagreed with the trial judge as to admissibility of the descriptions of the gay videos. While agreeing with the prosecution that “these descriptions were not introduced as impermissible propensity evidence” and that the judge had carefully instructed the jury that “the challenged evidence could not be used to demonstrate the defendant’s propensity to engage in such conduct in order to prove that he committed the charged acts in this case,” nonetheless it was improper for the judge to tell the jury that they could rely on these descriptions of the videotapes as evidence of “sexual interest and state of mind … as it relates to [Daniel] and as it relates to the manner and means by which the Defendant allegedly accomplished the alleged sexual assault.”  While the Wallace case had allowed admission of heterosexual pornography, the court found the circumstances distinguishable in light of the contentions of the parties and the overall state of the evidence in that case.  “As the judge in this case recognized, however,” wrote Judge Rubin, “and as this court has held, evidence of an adult’s homosexuality is irrelevant to sexual interest in children.”  Rubin cited on this point the appeals court’s ruling in 2009 setting aside the conviction of Bernard Baran, a young man who was convicted of molesting children at the day care center where he work based on subsequently-discredited “rehearsed” testimony by young children and by the fact that he was openly gay.  (Baran was discharged from state prison after lengthy and debilitating incarceration and died prematurely a few years later.)

Once again citing the Baran ruling (74 Mass. App. Ct. 256), Rubin wrote, “the myth that homosexual men have an interest in sex with underage children has been discredited.  The use of evidence of an adult’s homosexuality to demonstrate a sexual interest in underage boys (or, indeed, underage children of either gender) is thus impermissible.  Given this, we agree with the defendant that evidence of his interest in viewing depictions of adult males engaged in generic acts of same-sex sex, absent any additional factors like the ones present in Wallace, is irrelevant to whether he has an interest in sexual contact with an underage boy.  The impropriety of admitting this evidence to show the defendant’s state of mind and sexual interest with respect to boys becomes clear if one imagines that the evidence was about heterosexual pornography and the victim were a girl.  No court properly could find a defendant’s mere possession of adult heterosexual pornography relevant to proving his sexual interest in a female child.”

“The ingrained stereotypes and mistaken views still held by some individuals render evidence such as that introduced here unfairly prejudicial. Even though there was other evidence that the defendant here, who never disputed his sexual orientation, was gay, and that he owned pornography, the error in the admission of the explicit descriptions of his interest in same-sex sex, exacerbated by the instruction on its permissible use, was prejudicial.”  The court concluded that reversal was required on all counts except dissemination, “with respect to which the jury were expressly informed they could not use this evidence.”

Since retrial was likely, the court addressed other flaws in the trial court’s instructions. The jury had been told they could take the descriptions into account “as it relates to the manner and means by which the defendant allegedly accomplished the alleged sexual assaults.”  Judge Rubin rejected the prosecution’s argument that the acts depicted in the videos were “unique enough” to “show that the defendant had an interest in engaging in those acts, whether with an adult or a child.”  This was “generic” gay porn, the judge pointed out, “the ordinary means of men having same-sex sex.  It follows from our holding above that, standing alone, an interest in viewing lawfully possessed depictions of adult men having gay sex is not relevant to the question whether a male adult has an interest in engaging in sex acts of that kind with underage boys, just as, standing along, an interest in viewing lawfully possessed depictions of adults engaged in heterosexual sex cannot support a conclusion that a male adult has an interest in engaging in sex acts of the same kind with underage girls.”

Judge Rubin also commented that because it was “undisputed” that the videos seized by the police in 2007 were not shown to Daniel by the defendant in 2005, they could not be admitted in support of a theory that the defendant showed him the videos to “groom him” into accepting the idea of having sex with the defendant. “Any such corroborating value of the defendant’s possession of these videotapes of generic acts of adult same-sex sex – at a different residence, two years after the crimes are alleged to have been committed – is too attenuated to overcome the risk of undue prejudice from this evidence,” he wrote.  “These depictions thus may not be admitted for such a corroborative purpose under the applicable standard.”

One of the videos seized by the police showed the use of a dildo, and one of the counts of statutory rape “involves an allegation of the use of such a device in a similar manner on Daniel,” wrote Rubin. However, he wrote, the prosecutor “has not put any evidence in the record before us to show that use of a sex toy is a sufficiently distinctive sexual act that it could be admitted to show the defendant’s specific interest in this practice. . .  There is nothing in the record to support a conclusion that this conduct is so unusual that the probative value of evidence that the defendant possessed a visual depiction of it is more probative of his interest in engaging in it than unfairly prejudicial.  Nor is there evidence that interest in the use of such a sex toy with an adult would be probative of an individual’s interest in using one with an underage child with whom he was unlawfully having sex.”

The court disclaimed expressing any view about the defendant’s guilt or innocence, but held that the statutory rape convictions must be reversed and the verdicts set aside, although, as noted above, the conviction on the dissemination charge was affirmed. The defendant was represented on this appeal by Alexei Tymoczko.

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Maryland High Court Adopts De Facto Parent Standing for Lesbian Co-Parents

Overruling a 2008 precedent and reversing lower court decisions in this case, the Court of Appeals of Maryland, that state’s highest court, ruled on July 7 that the same-sex spouse of a birth mother, who gave birth to their child shortly before they were married, has standing as a “de facto parent” to pursue custody and visitation in the context of their present divorce proceeding, even though she never adopted the child. Conover v. Conover, 2016 WL 3633062.  The co-parent will not be required to show that the birth mother is unfit or that the co-parent can prove “exceptional circumstances” justify departing from the general rule that unrelated “third parties” do not have standing to seek custody of children.  The court found that the decision it overturned, Janice M. v. Margaret K., 404 Md. 661 (2008), was based on a faulty reading by the court of the Supreme Court’s decision in Troxel v. Granville, 530 U.S. 57 (2000) that failed adequately to perceive the narrow scope of that ruling and had also relied improperly on distinguishable earlier Maryland cases.  Furthermore, the court characterized Janice M. as an archaic precedent that was out of step with the trend of decisions in other states.  (Ironically, on July 7 the Michigan Court of Appeals issued a ruling on the exact same issue, taking the opposite position, see below.)  Judge Sally D. Adkins wrote the court’s opinion, which had the support of four judges.  There were concurring opinions by three judges suggesting slightly different tests, but all ultimately ruling in favor of the co-parent’s right as a “de facto” parent to obtain custody and/or visitation depending upon the trial court’s determination of the best interest of the child.

“Child custody and visitation decisions are among the most serious and complex decisions a court must make,” wrote Judge Adkins,” with grave implications for all parties. The dissolution of a non-traditional marriage just compounds the difficulties of this already challenging inquiry.”  Michelle and Brittany Conover’s relationship began in July 2002.  They decided together that Brittany would conceived with anonymous donor sperm obtained through Shady Grove Fertility Clinic, and she became pregnant in 2009, giving birth to their son in April 2010.  The birth certificate listed only one parent: Brittany.  The space for a father was left blank.  When their son was about six months old, they married in the District of Columbia.  Maryland at that time recognized same-sex marriages contracted in D.C. but did not issue marriage licenses to same-sex couples.  After a year of marriage the women separated.  Brittany allowed Michelle overnight and weekend access to their son until July 2012, when she prevented further contact, and she filed a formal divorce action in February 2013 in the Circuit Court in Hagerstown.  Her divorce complaint stated that there were no children of the marriage.  Michelle filed an answer seeking visitation rights with their son, and subsequently counter-complained for divorce, against requesting visitation rights (but not custody).  Brittany opposed custody, arguing that Michelle was not related to the boy and thus lacked standing under Maryland law.

Michelle asked the court to interpret Maryland’s statute governing custody disputes involving children “born to parents who have not participated in a marriage ceremony with each other” to place her in the same position as a father. The statute allows a father in such circumstances to assert parental rights if four tests are met: a judicial determination of paternity, the father’s acknowledgement in writing that he is the father, the father has “openly and notoriously recognized the child to be his child; or has subsequently married the mother and has acknowledged himself, orally or in writing, to be the father.”  Michelle took the position that she satisfied at least three of these tests, most pertinently the last, so she should be deemed a parent.  The lower courts determined, however, that Michelle lacked standing.  Since the son was conceived and born before they married, no presumption applied that Michelle, as the spouse of Brittany, was the boy’s parent, and the court found that the statute Michelle was relying upon could not be construed in gender-neutral terms.  The courts also rejected Michelle’s argument that she should be deemed a “de facto” parent, relying on the precedent of Janice M. holding that Maryland did not recognize that doctrine.  The court granted the divorce but denied Michelle’s request for visitation based solely on lack of standing.  Thus, the trial court never determined whether ordering visitation would be in the best in interest of the child.  The intermediate appellate court affirmed, and the Court of Appeals granted Michelle’s petition for certiorari.  The court’s opinion answers affirmatively the first question posed in Michelle’s petition: “Should Maryland reconsider Janice M. v. Margaret K. and recognize the doctrine of de facto parenthood?”

Ultimately, the logic of the court’s decision was derived from its conclusion that “the primary goal of access determinations in Maryland is to serve the best interests of the child.” This must be done while respecting the constitutional right of a fit parent to have custody and to control the raising of her child, where it is claimed that a “non-parent” should be entitled to access to the child.  Courts in other states have used a variety of legal theories when confronted with unmarried same-sex couples terminating their relationships and battling over access to the children they were raising.  One doctrine that has emerged and achieved wide acceptance – the de facto parent doctrine — was first adopted by the Wisconsin Supreme Court in In re Custody of H.S.H.-K., 533 N.W.2 419 (1995).  This doctrine poses a four-part test: “the legal parent must consent to and foster the relationship between the third party and the child; the third party must have lived with the child; the third party must perform parental functions for the child to a significant degree; and most important, a parent-child bond must be forged.”  In other words, in order to be a de facto parent, somebody must be a parent in all practical respects as a result of a relationship supported by the child’s legal parent.  (In a concurring opinion in Conover, Judge Shirley Watts would modify this test in cases where the child has two known legal parents to require that the relationship of the third party have been fostered with the consent of both of them; her reservations were not essential to deciding this case, because the son was conceived through anonymous donated sperm.)

The Maryland Court of Appeals concluded that this de facto parent doctrine should be adopted to determine whether an unmarried partner of a birth parent should be able to seek custody and/or visitation in the event of a dissolution of the adults’ relationship. Thus, the co-parent would not be obliged as a mere third party to prove that the child’s legal parent is “unfit” or that “exceptional circumstances” would justify invading her constitutional parental rights.  In deciding whether to award visitation in this case, the court would be concerned with the best interest of the child once the de facto parent status of Michelle was recognized.  The court rejected Brittany’s argument that the legislature has the sole authority to make this change in Maryland law, pointing out that the existing legal framework is largely the result of judicial decision-making, not legislation.

“We overrule Janice M. because it is “clearly wrong” and has been undermined by the passage of time,” wrote Judge Adkins, making clear that “de facto parents are distinct from other third parties.  We hold that de facto parents have standing to contest custody or visitation and need not show parental unfitness or exceptional circumstances before a trial court can apply a best interests of the child analysis.”  Judge Adkins described the best interest of the child as being “of transcendent importance,” and concluded, “With this holding we fortify the best interests standard by allowing judicial consideration of the benefits a child gains when there is consistency in the child’s close, nurturing relationships.  We do so carefully, adopting the multi-part test first articulated by the Wisconsin Supreme Court in H.S.H.-K.  This test accommodates, we think, the dissonance between what is in the best interest of a child and a parent’s right to direct and govern the care, custody, and control of their children.”

The court returned the case to the Circuit Court “for determination of whether, applying the H.S.H.-K. standards, Michelle should be considered a de facto parent, and conduct further proceedings consistent with this opinion.”  Thus, it will remain for the trial court both to determine Michelle’s status and, if she is a de facto parent, whether it is in the child’s best interest to order visitation. This determination will naturally have to take into account the fact that Brittany has not allowed contact with the child, now age 6, since July 2012, four years ago, so one anticipates that the trial court will hear expert testimony from both parties about the impact of reestablishing contact after this prolonged gap in the life of a very young child.

Interestingly, Michelle Conover now identifies as a transgender man and transitioned after the divorce, but the court indicated in a footnote that “she explained that she would refer to herself using female pronouns and her former name for consistency with the record and that her gender identity is not material to any legal issue in this appeal.” The court agreed to this arrangement, and Michelle’s current name appears nowhere in the opinion, but a press release by Free State Legal, whose deputy director and managing attorney Jer Welter, represents Michelle, identifies the appellant as “Michael Conover.”  One wonders whether or how the trial court will take this transition into account in making the “best interest” determination.  Case law is thin on the point, and unfortunately there are older published opinions taking the view that exposure to parents who had transitioned could be traumatic for their children.  If Brittany (who is no longer using Conover as her surname) remains strongly opposed to visitation, it would not be surprising if she sought to make this an issue in the best interest determination by the Circuit Court.

More than 45 organizations collaborated on seven amicus briefs that were filed in support of the appellant before the Court of Appeals, including LGBT rights groups, women’s rights groups, and a large group of law professors specializing in family law.

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Michigan Appeals Court Rejects Lesbian Co-Parent Standing in Visitation Suit

A unanimous panel of the Court of Appeals of Michigan ruled on July 5 that Michelle Lake, a lesbian co-parent, lacked standing to seek “parenting time” with the biological child of her former same-sex partner, Kerri Putnam. Reversing a decision to award parenting time by the Washtenaw Circuit Court in Lake v. Putnam, 2016 Mich. App. LEXIS 1297, 2016 WL 3606081, the appeals court held that the co-parent was a mere “third party” who did not come within the standing requirements of the state’s Child Custody Act.  Judge Colleen A. O’Brien wrote the opinion for the panel, with Judge Douglas B. Shapiro filing a concurring opinion.

Judge Shapiro’s concurrence provides a more sympathetic version of the facts than O’Brien’s. “While the parties disagree as to details,” he wrote, “it is undisputed that they lived together for about a decade as a same-sex couple, that about five years into the relationship defendant bore a child by artificial insemination, that for several years the parties each acted as a parent to the child, and that they were both viewed as parents by the child.  It is also undisputed that several years later, around September 2014, defendant ended the relationship, moved out with the child, and entered into a new relationship with a different woman.  Defendant initially allowed plaintiff visitation with the child, but eventually she refused to do so.  In June 2015, plaintiff filed this action seeking parenting time.”  In addition, as Judge O’Brien pointed out in her opinion for the court, although the women could have married in other jurisdictions, they did not do so.  Neither did the plaintiff adopt the child with the consent of the defendant, although that would have been possible when the women were living with the child for some time in Florida, where the state courts had invalidated a statutory ban on “homosexuals” adopting children. (At the time, Michigan courts did not allow co-parent adoptions, which was one of the issues in DeBoer v. Snyder, one of the cases that was ultimately consolidated in Obergefell v. Hodges.)  Thus, the plaintiff was not legally related to the child or to the child’s mother at any time.

The Family Court judge in Washtenaw County, Darlene O’Brien, overruled the defendant’s objection to the plaintiff’s standing and awarded parenting time to the plaintiff, but the court of appeals granted the defendant leave to appeal.

The question, then, was whether some legal doctrine recognized in Michigan was available for her to assert standing to seek visitation after the women’s relationship ended. Courts in other states are divided on this question.  The plaintiff pinned her hopes on the doctrine of “equitable-parent” recognized in Michigan.  As Judge O’Brien describes Michigan’s version of the doctrine, “a husband who is not the biological father of a child born or conceived during wedlock may, nevertheless, be considered that child’s natural father if three requirements are satisfied: (1) the husband and the child must mutually acknowledge their father-child relationship, or the child’s mother must have cooperated in the development of that father-child relationship prior to the time that the divorce proceedings commenced; (2) the husband must express a desire to have parental rights to the child; and (3) the husband must be willing to accept the responsibility of paying child support.”  If these tests are met, the husband would be deemed an equitable parent with standing to seek custody and/or visitation as part of a divorce proceeding, the determining factor in that ruling being the best interest of the child.  Plaintiff asserted that she met the tests. However, O’Brien pointed out, the plaintiff “ignores one crucial, and dispositive, requirement for the equitable-parent doctrine to apply — the child must be born in wedlock.”  She pointed out that Michigan courts have consistently refused to extend this doctrine to heterosexual partners who have a child while living in unmarried cohabitation where the man is not the biological father of the child.  In other words, although the court did not describe it as such, this equitable –parent doctrine is similar to the “parental presumption” that other states apply to determine a husband’s parental status when his wife gives birth, without requiring proof in every case that the husband is the child’s biological father.

Responding to the plaintiff’s argument that refusing to extend this doctrine to give her standing discriminates because of her sexual orientation, the court asserted that its failure to extend the doctrine to unmarried heterosexual couples refutes that argument. As to the argument that the two women should be treated as if they were married because Michigan and Florida’s refusal to allow same-sex marriage during the time they were living together violated their constitutional rights as proclaimed in Obergefell v. Hodges, the court pointed out that plaintiff did not introduce any evidence suggesting that the women would have married had that option been available to them.  After all, at the time their child was born, they could have married in other states or Canada (just across the border from Michigan), although their home states did not then recognize out-of-state same-sex marriages.  Another part of the Obergefell ruling, however, was that states were obligated to recognize such out-of-state marriages.

As an alternative argument, the plaintiff urged the court to follow the persuasive precedent of Ramey v. Sutton, 2015 OK 79, 362 P.3d 217 (2015), in which the Oklahoma Supreme Court applied a theory of “in loco parentis” to a similar set of facts to find that a lesbian co-parent should be afforded a hearing to show that it was in the best interest of the child for her to be recognized as a legal parent for purposes of custody and/or visitation.  Judge O’Brien found that Oklahoma’s version of “in loco parentis,” which had never been embraced by Michigan courts, was distinguishable from Michigan’s equitable-parent doctrine, and “our Supreme Court has squarely rejected the argument that holding oneself out as a child’s parent, alone, is sufficient to be considered that child’s parent under the equitable-parent doctrine.”

The court acknowledged that “especially in light of the Obergefell decision” this sort of case is “complex”, but “we simply do not believe it is appropriate for courts to retroactively impose the legal ramifications of marriage onto unmarried couples several years after their relationship has ended,” which the court said was “beyond the role of the judiciary.”

“In sum,” concluded O’Brien, “while we acknowledge that the issues presented in child-custody disputes, including those involving same-sex couples, present challenges, we conclude that the equitable-parent doctrine does not extend to unmarried couples. This is true whether the couple involved is a heterosexual or a same-sex couple.”  Thus, the trial court’s visitation order had to be reversed.

In his concurring opinion, Judge Shapiro asserted that the case could have turned out differently had the plaintiff presented some evidence that the women would have married before their child was born had the states where they resided (Michigan and, briefly, Florida) allowed it. He pointed out that last year the Court of Appeals had ruled in favor of parental standing in a case where a same-sex couple had married out-of-state before having their child, using the reasoning of %Obergefell to confer, in effect, retroactive recognition of the marriage for purposes of determining standing of the non-biological parent.  See Stankovich v. Milliron, 313 Mich. App. 2233 (2015).  “I would not limit our application of Obergefell to cases where the parties actually married in another jurisdiction,” he wrote.  “The fact that marriage was available in some other jurisdiction did not remove the unconstitutional burden faced by same-sex couples residing in a state that barred same-sex marriage within its borders.  The impediment was defined by state law, and the existence of that law to those who lived under it should not now be treated as constitutionally insignificant because other states treated the issue differently.”

Thus, in Shapiro’s view, “plaintiff is correct that Obergefell demands extension of the equitable-parent doctrine,” but only if the plaintiff can show that the women would have married had the state allowed it.  “My colleagues are rightfully concerned about retroactively imposing marriage on a same-sex couple simply because one party now desires that we do so,” he continued.  “However, that concern is fully addressed by a factual inquiry into the facts as they existed at the time the child was born or conceived.  The question is whether the parties would have married before the child’s birth or conception but did not because of the unconstitutional laws preventing them from doing so.”  He referred to the Oregon Court of Appeals decision In re Madrone, 350 P.3d 495 (2015), to support this point. “I would adopt this approach and hold that a party is entitled to seek equitable-parent rights arising out of a same-sex non-marital relationship where the evidence shows by a preponderance of the evidence that but for the ban on same-sex marriage in the parties’ state of residency, they would have married prior to the birth of the child.”  But that is not this case.  “While the affidavits presented to the trial court on behalf of the plaintiff state that the parties were in a committed relationship and that while in that relationship they raised the child together as co-parents, none of the affidavits, including plaintiff’s, state or allow for an inference that but for the then-existing unconstitutional barriers to same-sex marriage the parties would have married.”  Shapiro concluded that if the plaintiff had presented such evidence, the correct move for the court of appeals would be to remand the case for a hearing by the trial court to determine whether such a thwarted intent to marry could be proven by a preponderance of the evidence.

This kind of opinion can be very frustrating to read, because it focuses on legality and avoids human issues that should, logically, weigh heavily in a family relationship dispute. The keystone of custody and visitation determinations is supposed to be what is in the best interest of the child.  Asserting technical standing requirements prevents the court from reaching this issue.  The trial judge in this case, having accepted the plaintiff’s argument that she could assert the rights of an equitable-parent, did get to that ultimate issue and concluded she should have parenting time with the child.  The court of appeals’ insistence on the technical rules of standing override that finding, resulting in a decision that seemingly sacrifices the best interest of the child, which is contrary to the usual policy goal of family law.

The plaintiff also tried to argue that depriving the child of contact with one of her parents violates the child’s own constitutional rights, but the court quickly dismissed this argument without any serious consideration, blithely asserting, “Generally, persons do not have standing to assert constitutional or statutory rights on behalf of another person. That is precisely what plaintiff is trying to do, i.e., assert the child’s constitutional rights.  Accordingly, we reject this argument as well.”  One wonders whether the trial judge appointed a guardian ad litem to represent the child’s interest, as such a party could advance this constitutional argument on the child’s behalf.  Perhaps Michigan attorneys will respond to this ruling by adopting a different litigation strategy to require the court to confront the issue of the child’s best interest free of the standing barrier.  In the meantime, of course, the plaintiff could seek review of this decision in the Michigan Supreme Court.

The plaintiff is represented by Jay Kaplan of the American Civil Liberties Union of Michigan. Anne Argiroff represents the defendant.

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Federal Court Agrees to Let VAWA Funding in North Carolina to Continue During Pendency of H.B. 2 Lawsuit

When the Justice Department filed suit against North Carolina for a declaration that H.B.2’s bathroom provision violates the Violence Against Women Act (VAWA), it put into play a provision of that statute, 42 U.S.C. sec. 13925(b)(13)(c), which provides that upon the filing of a civil action “alleging a pattern or practice of discriminatory conduct on the basis of sex in any program or activity of a State government or unit of local government which receives funds made available under [VAWA], and the conduct allegedly violates the provisions of [VAWA] and neither party within forty-five days after such filing has been granted such preliminary relief with regard to the suspension or payment of funds as may be otherwise available by law, the Office of Justice Programs shall cause to have suspended further payment of any funds under this chapter to that specific program or activity alleged by the Attorney General to be in violation of the provisions of [VAWA] until such time as the court orders resumption of payment.” In other words, federal funding for a variety of rape prevention and domestic violence programs in North Carolina that depend on federal funds under VAWA would have to be suspended 45 days after May 10.

For a while nobody was really paying attention to this, but suddenly somebody woke up to the reality that before the end of June the federal money would stop flowing to these programs unless the court issued a preliminary injunction to keep the money flowing. United States v. State of North Carolina, 2016 WL 3561726 (M.D.N.C., June 23, 2016).  The State and the Justice Department quickly reached an agreement to ask the federal court to issue such a preliminary injunction, which District Judge Thomas Schroeder did on June 23.

However, Judge Schroeder agonized through a rather lengthy opinion trying to explain how such an injunction could be issued when the state failed to show that it was likely to prevail on the merits of the underlying issue: whether the bathroom provisions of H.B. 2 violate the VAWA, as alleged by the Justice Department. Alone among the statutes cited by DOJ in its complaint, VAWA actually explicitly defines its ban on discrimination “because of sex” to include discrimination because of gender identity; on top of that, of course, the 4th Circuit has already ruled in G.G. v. Gloucester County School Board, 2016 WL 1567467 (April 19, 2016), rehearing en banc denied (June 1), that the ban on sex discrimination in Title IX (and by analogy Title VII), also cited in the complaint, includes a ban on gender identity discrimination.

The state is arguing, without much credibility, that the bathroom provision does not discriminate against transgender people, “merely” requiring them to use single-gender facilities or facilities consistent with their biological sex as specified on their birth certificate when they need a bathroom. In a summary judgment motion subsequently filed on July 5, DOJ blasted that contention out of the water, but, of course, that motion hadn’t been filed yet when Judge Schroeder had to decide before a statutory deadline for suspending funding that would hit on June 23.

Ultimately, he concluded that even though preliminary injunctive relief normally depends on a strong showing that the defendant is likely to prevail on the merits, there is no controlling 4th Circuit precedent that would prevent him from issuing the jointly-requested injunction in light of the practical consequences of cutting off federal funding for these important programs for the duration of the litigation. While pointing out that lack of a showing of likelihood of success “is normally fatal to any request for a preliminary injunction,” this was not the usual case.  “With the consent of all parties, however,” he wrote, “courts sometimes enter preliminary injunctions without any findings regarding the likelihood of success on the merits. . .  The Fourth Circuit has acknowledged this practice without comment.”

In stating his decision to grant the injunction, he wrote: “The court does so particularly mindful of how the entrenched positions of the parties would otherwise likely inflict substantial harm on innocent third parties if VAWA funding were to be suspended. As the parties acknowledge, the continued operation of rape crisis centers and the other VAWA-funded programs unquestionably serves the public interest.  The court is also cognizant, however, that if the allegations of the complaint are correct, maintenance of the status quo will continue to inflict harm on transgender individuals under enforcement of the law.”  He cautioned that by agreeing to allow funding for these programs to continue, neither party was making any representation “as to any other party’s likelihood of success on the merits.  As a result, the entry of this preliminary injunction shall not prejudice the parties’ positions in this case or further findings by the court.”

Presumably, if Judge Schroeder were to grant the DOJ’s motion for preliminary injunction that was filed on July 5, the State would have to cease enforcing H.B.2’s bathroom provision while the litigation continued, and thus the flow of federal money would no longer be endangered. Since the %G.G.% ruling by the 4th Circuit intimated, if not actually holding, that schools receiving federal funds from the Education Department might have to let transgender students access bathrooms consistent with their gender identity, chances do not look good for the State to succeed in defeating DOJ’s motion for preliminary injunction.

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Federal Judge Orders Indiana to List Two Moms on Birth Certificates

U.S. District Judge Tanya Walton Pratt ruled on June 30 that Indiana was failing to comply with the Supreme Court’s mandate for marriage equality in Obergefell v. Hodges, decided last June 26, when the state refused to list the same-sex spouses of birth mothers on their children’s birth certificates.  Ruling on cases brought by several same-sex couples who were married before their children were born, Judge Pratt found that the mandate to afford equal marriage rights to same-sex couples included a requirement that the “parental presumption” applied to husbands of women who give birth should also be applied to their wives.  Henderson v. Adams, 2016 U.S. Dist. LEXIS 84916 (S.D. Ind.).

Judge Pratt explained that the usual procedure in Indiana for issuing birth certificates starts when hospital staff “work with the birth mother to complete the State of Indiana’s ‘Certificate of Live Birth Worksheet,’” which was created by the state as part of its Birth Registration System.  “Staff at the hospital upload the information provided on the Indiana Birth Worksheet to a State database.  The county health department then receives notification that birth information has been added to the database.  A notification letter to the birth mother is generated on a form provided by the State, which indicates that information has been received by the county health department and requests that the mother notify the county health department if there is an error with respect to the child’s identifying information.”  If the mother wants a birth certificate, she has to request one, which will then be generated out of the database.

One of the questions on the Worksheet is whether the birth mother is married.  If she answers “no,” she is asked whether a paternity affidavit has been completed for the child, in which case the person identified as the father will go into the database and be listed on the birth certificate.  If there has been no affidavit, then the space is left blank, even if the mother knows the identity of the child’s biological father, and the birth certificate will list only the mother.  If the answer is “yes,” the husband’s name will go into the database, and ultimately will be listed on the birth certificate.  Even if the child of a married couple is conceived with donated sperm, there is a presumption that the husband is the father, unless the mother takes steps during this initial information-gathering process to make clear that her husband is not the biological father.

Even though all of the plaintiff couples in this case are married, the state refused to accept same-sex spouses into the database or to list them on the birth certificate.  The state’s position was that the database and the birth certificates generated from it are supposed to create a true record of the biological parentage of the child, and that because a same-sex spouse of a birth mother is not biologically related to the child, listing her in the database and on the birth certificate would create a false record.  The state took the position that a same-sex spouse could only be listed in the database and the birth certificate if she adopted the child with the permission of the birth mother, a process involving expenses and delay, during which time the child would have only one legal parent.

Judge Pratt accepted the plaintiffs’ argument that “Indiana’s refusal to grant the status of parenthood to female spouses of artificially-inseminated birth mothers while granting the status of parenthood to male spouses of artificially-inseminated birth mother violates the Equal Protection Clause,” because it was sex discrimination, pure and simple.

Furthermore, sex discrimination requires heightened scrutiny, putting the burden on the state to justify its policy and show that it advances an important state interest.  Because the state presumes, without proof, that the husbands of birth mothers are the parents of their children, the policy does not, in fact, advance the state’s asserted interest of creating a “true” record of the child’s biological parents.  The state argued that it was the duty of the married birth mother to advise hospital staff while completing the Worksheet if her child was conceived through donor sperm so that her husband’s name would be excluded from the database, but this was clearly a spurious argument, since the Worksheet does not prompt hospital staff members to ask this question.

“The State Defendant’s argument that the birth mother should acknowledge that she is not married to the father of her child when she has been artificially inseminated or else she is committing fraud when she has been artificially inseminated is not consistent with the Indiana Birth Worksheet, Indiana law, or common sense,” wrote Judge Pratt.  “The Indiana Birth Worksheet asks, ‘are you married to the father of your child,’ yet it does not define ‘father.’  This term can mean different things to different women.  Common sense says that an artificially-inseminated woman married to a man who has joined in the decision for this method of conception, and who intends to treat the child as his own, would indicate that she is married to the father of her child.  Why would she indicate otherwise?”

Judge Pratt pointed out that the Worksheet, devised by the state, made no attempt to elicit the information that the State deemed to be so important, and, furthermore, “there is no warning of fraud or criminal liability.”  She pointed out that some other states had enacted specific statutory language to deal with the use of donor insemination by married couples and the issuance of appropriate birth certificates, but Indiana has failed to do so.  She pointed out, however, that in one such state, Wisconsin, litigation is pending because that state has also been refusing to list same-sex spouses on birth certificates.

Ultimately, she pointed out, the Worksheet process as set up by the state did not achieve its articulated purpose of creating a “true” record of biological parents, and was administered in a way that clearly discriminated against same-sex couples.  Rejecting the state’s argument that employing a parental presumption was not required under Obergefell’s mandate of equal marriage benefits, she pointed out, “the state created a benefit for married women based on their marriage to a man, which allows them to name their husband on their child’s birth certificate even when the husband is not the biological father.  Because of Baskin [the 7th Circuit’s marriage equality ruling] and Obergefell, this benefit –which is directly tied to marriage – must now be afforded to women married to women.”

In addition to finding an equal protection violation, Judge Pratt found a Due Process violation because in Obergefell the Supreme Court referred to both clauses of the 14th Amendment as a source of the freedom to marry.  Since the Supreme Court identified that freedom as a fundamental right, strict scrutiny would apply, and the state’s rationale for its position of this case was obviously insufficient to meet the “compelling interest” test, and Judge Pratt so found.  The judge concluded: “Given Indiana’s long-articulated interest in doing what is in the best interest of the child and given that the Indiana Legislature has stated the purpose of Title 31 is to protect, promote, and preserve Indiana families, there is no conceivable important governmental interest that would justify the different treatment for female spouses of artificially-inseminated birth mothers from the male spouses of artificially-inseminated birth mothers.  As other district courts have noted, the holding of Obergefell will inevitably require ‘sweeping change’ by extending to same-sex married couples all benefits afforded to opposite-sex married couples.  Those benefits must logically and reasonably include the recognition sought by Plaintiffs in this action.”

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Federal Court Blocks Implementation Mississippi HB 1523

 Just minutes before Mississippi’s anti-LGBT H.B. 1523 was scheduled to go into effect on July 1, U.S. District Judge Carlton W. Reeves filed a 60-page opinion explaining why he was granting a preliminary injunction to the plaintiffs in two cases challenging the measure, which he consolidated for this purpose under the name of Barber v. Bryant.


                According to Judge Reeves, H.B. 1523 violates both the 1st Amendment’s Establishment of Religion Clause and the 14th Amendment’s Equal Protection Clause.  His lengthy, scholarly opinion expands upon some of the points he made just days earlier when he granted a preliminary injunction in a separate lawsuit, blocking implementation of one provision of H.B. 1523 that allowed local officials responsible for issuing marriage licenses to “recuse” themselves from issuing licenses to same-sex couples based on their “sincere” religious beliefs.


                Unlike the earlier ruling, the June 30 opinion treats H.B. 1523 as broadly unconstitutional on its face.  Although Mississippi Governor Phil Bryant, the lead defendant in all three lawsuits, announced that the state would immediately appeal to the U.S. Court of Appeals for the 5th Circuit, Reeves’ scholarly opinion seemed likely to withstand judicial review.  Attorney General Jim Hood, Mississippi’s only Democratic statewide elected official and also a named defendant, suggested that he might not be joining in such an appeal, voicing agreement with Reeves’ decision and suggesting that the legislature had “duped” the public by passing an unnecessary bill.  He pointed out that the 1st Amendment already protected clergy from any adverse consequences of refusing to perform same-sex marriages, and that the state’s previously-enacted Religious Freedom Restoration Act already provides substantial protection for the free exercise rights of Mississippians.


                At the heart of H.B. 1523 is its Section 2, which spells out three “sincerely held religious beliefs or moral convictions” that are entitled, as found by Judge Reeves, to “special legal protection.”  These are “(a) Marriage is or should be recognized as the union of one man and one woman; (b) Sexual relations are properly reserved to such a marriage; and (c) Male (man) or female (woman) refer to an individual’s immutable biological sex as objectively determined by anatomy and genetics at birth.”  According to the statute, any person or entity that holds one or more of these beliefs is entitled to be free from any sanction by the government for acting upon them by, for example, denying restroom access to a transgender person or refusing to provide goods or services to a same-sex couple for their wedding.


                Of course, the state may not override federal rights and protections, and the plaintiffs argue in these cases that by privileging people whose religious beliefs contradict the federal constitutional and statutory rights of LGBT people, the state of Mississippi has violated its obligation under the 1st Amendment to preserve strict neutrality concerning religion and its obligation under the 14th amendment to afford “equal protection of the law” to LGBT people.


                Reeves, who ruled in 2014 that Mississippi’s ban on same-sex marriage was unconstitutional, agreed with the plaintiffs as to all of their arguments.   For purposes of granting a preliminary injunction, he did not have to reach an ultimate decision on the merits of the plaintiffs’ claims.  It would suffice to show that they are “likely” to prevail on the merits.  But anybody reading Reeves’ strongly-worded opinion would have little doubt about his view of the merits.


                In an introductory portion of the opinion, he spells out his conclusions succinctly: “The Establishment Clause is violated because persons who hold contrary religious beliefs are unprotected – the State has put its thumb on the scale to favor some religious beliefs over others.  Showing such favor tells ‘nonadherents that they are outsiders, not full members of the political community, and adherents that they are insiders, favored members of the political community,’” quoting from a Supreme Court decision from 2000, Santa Fe Independent School District v. Doe, 530 U.S. 290.  “And the Equal Protection Clause is violated by H.B. 1523’s authorization of arbitrary discrimination against lesbian, gay, transgender, and unmarried persons.”


                Much of the opinion was devoted to rejecting the state’s arguments that the plaintiffs did not have standing to bring the lawsuits, that the defendants were not liable to suit on these claims, and that injunctive relief was unnecessary because nobody had been injured by the law.  Reeves cut through these arguments with ease.  A major Supreme Court precedent backing up his decision on these points is Romer v. Evans, the 1996 case in which LGBT rights groups won a preliminary injunction against Colorado government officials to prevent Amendment 2 from going into effect.  Amendment 2 was a ballot initiative passed by Colorado voters in 1992 that prevented the state from providing any protection against discrimination for gay people.  The state courts found that the LGBT rights groups could challenge its constitutionality, and it never did go into effect, because the Supreme Court ultimately found that it violated the Equal Protection Clause.


                Judge Reeves ended his introductory section with a quote from the Romer v. Evans opinion:  “It is not within our constitutional tradition to enact laws of this sort.”


                In his earlier opinion, dealing with the clerk “recusal” provision, Reeves had alluded to Mississippi’s resistance to the Supreme Court’s racial integration rulings from the 1950s and 1960s, and he did so at greater length in this opinion, focusing on how H.B. 1523 was specifically intended by the legislature as a response to the Supreme Court’s ruling last year in Obergefell v. Hodges, holding that same-sex couples have a constitutional right to marry.  Mississippi legislators made clear during the consideration of this bill that its intention was to allow government officials and private businesses to discriminate against LGBT people without suffering any adverse consequences, just as the state had earlier sought to empower white citizens of Mississippi to preserve their segregated way of life despite the Supreme Court’s rejection of race discrimination under the 14th Amendment.


                Reeves quoted comments by Governor Bryant criticizing Obergefell as having “usurped” the state’s “right to self-governance” and mandating the state to comply with “federal marriage standards – standards that are out of step with the wishes of many in the United States and that are certainly out of step with the majority of Mississippians.”  In a footnote, Reeves observed, “The Governor’s remarks sounded familiar.  In the mid-1950s, Governor J.P. Coleman said that Brown v. Board of Education ‘represents an unwarranted invasion of the rights and powers of the states.’”  Furthermore, “In 1962, before a joint session of the Mississippi Legislature – and to a ‘hero’s reception’ – Governor Ross Barnett was lauded for invoking states’ rights during the battle to integrate the University of Mississippi.”  Reeves also noted how the racial segregationists in the earlier period had invoked religious beliefs as a basis for failing to comply with the Supreme Court’s decisions.


                Turning to the merits of the case, Reeves addressed the state’s argument that the purpose of the statute was to “address the denigration and disfavor religious persons felt in the wake of Obergefell,” and the legislative sponsors presented it as such, as reflected in the bill’s title: “Protecting Freedom of Conscience from Government Discrimination Act.”  Reeves pointed out what was really going on.  “The title, text, and history of H.B. 1523 indicate that the bill was the State’s attempt to put LGBT citizens back in their place after Obergefell,” he wrote.  “The majority of Mississippians were granted special rights to not serve LGBT citizens, and were immunized from the consequences of their actions.  LGBT Mississippians, in turn, were ‘put in a solitary class with respect to transactions and relations in both the private and governmental spheres’ to symbolize their second-class status.” (The quotation is from Romer v. Evans.)  “As in Romer, Windsor, and Obergefell,” Reeves continued, “this ‘status-based enactment’ deprived LGBT citizens of equal treatment and equal dignity under the law.”


                Because state law in Mississippi does not expressly forbid discrimination because of sexual orientation or gender identity, the state tried to claim that in fact the bill did not have the effect of imposing any new harm.  However, recently the city of Jackson passed an ordinance forbidding such discrimination, and the University of Southern Mississippi also has a non-discrimination policy in place.  “H.B. 1523 would have a chilling effect on Jacksonians and members  of the USM community who seek the protection of their anti-discrimination policies,” wrote Reeves.  “If H.B. 1523 goes into effect, neither the City of Jackson nor USM could discipline or take adverse action against anyone who violated their policies on the basis of a ‘Section 2’ belief.”


                The court held that because of the Establishment Clause part of the case, H.B. 1523 was subject to strict scrutiny judicial review, and also pointed out that under Romer v. Evans, anti-LGBT discrimination by the state is unconstitutional unless there is some rational  justification for it.  He rejected the state’s argument that it had a compelling interest to confer special rights upon religious objectors.  “Under the guise of providing additional protection for religious exercise,” he wrote, H.B. 1523 “creates a vehicle for state-sanctioned discrimination on the basis of sexual orientation and gender identity.  It is not rationally related to a legitimate end.”  Indeed, he asserted, “The deprivation of equal protection of the laws is H.B. 1523’s very essence.”


                Reeves easily found that the standard for ordering preliminary relief had been met.  Not only was it likely that H.B. 1523 would be found unconstitutional in an ultimate ruling in the case, but it was clear that it imposed irreparable harm on LGBT citizens, that a balancing of harms favored the plaintiffs over the defendants, and that the public interest would be served by enjoining operation of H.B. 1523 while the lawsuits continue.  “The State argues that the public interest is served by enforcing its democratically adopted laws,” he wrote.  “The government certainly has a powerful interest in enforcing its laws.  That interest, though, yields when a particular law violates the Constitution.  In such situations the public interest is not disserved by an injunction preventing its implementation.”


                Reeves concluded, “Religious freedom was one of the building blocks of this great nation, and after the nation was torn apart, the guarantee of equal protection under law was used to stitch it back together.  But H.B. 1523 does not honor that tradition of religious freedom, nor does it respect the equal dignity of all of Mississippi’s citizens.  It must be enjoined.”


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Federal Court Will Enjoin Part of Mississippi H.B. 1523 to Enforce Equal Protection Rights of Same-Sex Couples



U.S. District Judge Carlton W. Reeves announced on June 27 that he will order Mississippi officials not to enforce part of H.B. 1523, a recently-enacted state law scheduled to go into effect on July 1, because it would circumvent the Supreme Court’s 2015 ruling requiring states to afford equal marriage rights to same-sex couples.   The challenged provision,  Section 3(8)(a), allows Circuit Court Clerks to “recuse” themselves from issuing marriage licenses to same-sex couples if they have a sincere religious belief opposed to same-sex marriage.  The provision says that same-sex couples will be entitled to get marriage licenses, but provides no mechanism to make sure that they can get them in case there is nobody in a particular clerk’s office who has not recused himself or herself.  The Order is published as Campaign for Southern Equality v. Bryant, 2016 U.S. Dist. LEXIS 83036 (S.D. Miss., June 27, 2016).


Recalling a 1962 ruling by the U.S. Court of Appeals for the 5th Circuit, Meredith v. Fair, 305 F.2d 343, which “chastised our State for ‘a carefully calculated campaign of delay and masterly inactivity” in response to federal  desegregation orders, Judge Reeves announced that he would “reopen” the Mississippi marriage equality case “for the parties to confer about how to provide clerks with actual notice of the Permanent injunction” and for the parties “to confer on appropriate language to include in an Amended Permanent Injunction.”


Robbie Kaplan, a New York attorney who represents the Campaign for Southern Equality, the plaintiff in the Mississippi case, had filed a motion seeking to reopen the case in order to ensure that same-sex couples in the state are not subjected to unconstitutional discrimination because of H.B. 1523.  A large team of pro-bono attorneys from Paul, Weiss, Rifkind, Wharton & Garrison, a New York firm where Kaplan is a partner, is working on the case together with attorneys from several southern states including local counsel from Mississippi.


Reeves is also considering two other lawsuits involving challenges and defenses to the constitutionality of other provisions of H.B. 1523, which was explicitly enacted in response to the Supreme Court’s Obergefell v. Hodges decision and which shelters public employees and private businesses from any liability or adverse consequences if they refuse to deal with same-sex couples based on their religious beliefs.   The law also allows government offices and businesses to deny transgender people appropriate access to restrooms and other gender-designated facilities, once again based on a “sincere religious belief” that a person’s gender is immutably determined at birth.  Reeves is expected to issue rulings in those cases shortly.


Judge Reeves, an African-American man who was appointed to the district court by President Barack Obama, presided over the Mississippi marriage equality case, Campaign for Southern Equality v. Bryant, issuing a ruling in November 2014 that the state’s constitutional and statutory bans on same-sex marriage violate the 14th Amendment.  He issued a preliminary injunction to that effect on November 25, which was stayed while the state appealed to the 5th Circuit, which, after hearing oral argument in this and cases from other states in the circuit in January 2015, put a hold on the appeal until the Supreme Court decided the Obergefell case.


The Obergefell decision, announced on June 26, 2015, said that same-sex couples were entitled to enter into civil marriages “on the same terms and conditions as opposite-sex couples.” “This resolved the issue nationwide,” wrote Reeves, who subsequently issued a Permanent Injunction in response to an order from the 5th Circuit (see 791 F.3d 625) directing him to “act expeditiously on remand and enter final judgment.”  Reeves’ Permanent Injunction ordered that the state “and all its agents, officers, employees, and subsidiaries, and the Circuit Clerk of Hinds County and all her agents, officers, and employees, are permanently enjoined from enforcing Section 263A of the Mississippi Constitution and Mississippi Code Section 93-1-1(2).”


Shortly after Reeves issued his injunction, the Mississippi Attorney General’s office advised all 82 Circuit Court clerks to grant marriage licenses “to same-sex couples on the same terms and conditions accorded to couples of the opposite sex.” But in response to this motion, the State argued that the only Circuit Court Clerk bound by the court’s injunction was the Hinds County Clerk, who was named in that Order, because the clerks are county employees rather than state employees.


When the Mississippi legislature convened for its 2016 session, it promptly passed H.B. 1523, which was clearly intended to send a message that the state would happily tolerate and protect discrimination against same-sex couples and LGBT individuals by privileging those with anti-gay religious beliefs. This was largely symbolic when it came to discrimination by private businesses and landlords, since Mississippi law does not forbid discrimination because of sexual orientation or gender identity in employment, housing and public accommodations, and it was only after H.B. 1523 was enacted that the city of Jackson became the first jurisdiction in the state to legislate against such discrimination.  Thus, at the time H.B. 1523 was passed, this “privilege” was not necessary to “protect” free exercise of anti-gay religious views by Mississippians.


The provisions about bathroom use and marriage licenses threatened to have more significant practical effect, setting up a clash with federal constitutional and statutory requirements. Over the past few months, issue has been joined in several lawsuits in other federal districts contesting whether federal sex discrimination laws override state laws and require employers not to discriminate against LGBT people or deny bathroom access to transgender employees and students. As Judge Reeves pointed out in his June 27 Order, states “lack authority to nullify a federal right or cause of action they believe is inconsistent with their local policies.”  In this case, the marriage license provision clearly violates federal constitutional requirements established in the Obergefell decision.


“In H.B. 1523,” wrote Reeves, “the State is permitting the differential treatment to be carried out by individual clerks. A statewide policy has been ‘pushed down’ to an individual-level policy.  But the alleged constitutional infirmity is the same.  The question remains whether the Fourteenth Amendment requires marriage licenses to be granted (and out-of-state marriage licenses to be recognized) to same-sex couples on identical terms as they are to opposite-sex couples.”  And the precise question before Reeves was whether it was necessary to modify his 2015 injunction to make it clear that all government employees involved in the marriage process, including the State Registrar and the Circuit Court Clerks, are bound by his injunction.


Reeves concluded that the Registrar was clearly bound, but that it would be preferable to make it more explicit that the Circuit Court Clerks are bound as well, since a violation of the injunction would subject them to potential liability, including the costs of defending lawsuits against them and possible contempt penalties if they refused to obey the court’s Order.


Much of his June 27 Order was devoted to technical procedural and jurisdictional issues, which he resolved in every instance against the state defendants, from Governor Phil Bryant on down.


He also agreed with the plaintiffs that they should be able to conduct discovery against the State Registrar in order to learn which Clerks had filed forms seeking to recuse themselves from issuing marriage licenses. The Registrar, who is supposed to receive those forms under H.B. 1523, had been claiming that since she was not a party to the marriage lawsuit, she was not bound by the court’s injunction and thus not subject to a discovery demand in this case.  Reeves asserted that “there are good reasons to permit discovery from the Registrar strictly for purposes of enforcing the Permanent Injunction.  In 2016, Mississippi responded to Obergefell by creating a new way to treat same-sex couples differently than opposite-sex couples.  That the differential treatment is now pushed down to county employees should be irrelevant for discovery purposes.  The State will have the documents that show exactly where and by whom the differential treatment it authorized in HB 1523 will now occur.  The Plaintiffs should be able to receive that post-judgment discovery from an appropriate State employee, like the Registrar.”


Reeves rejected the technical argument that the State, as such, was not a party to the lawsuit. For technical reasons of constitutional law, the State as an entity can’t be sued in federal court by its citizens without its consent, so state officials rather than the State itself are designated as defendants in cases like the marriage equality lawsuit.  But this is really a technicality.  The Attorney General defended the marriage ban using state funds and employees and, Reeves pointed out, it is well established that a federal court “may enjoin the implementation of an official state policy” because the state is “the real party in interest” even though the lawsuit was brought against named state officials.


Reeves signaled that the amended form of the Injunction will add language from the Obergefell decision to make clear that same-sex couples are entitled to the same treatment as different-sex couples because, as the 5th Circuit said last July, Obergefell “is the law of the land and, consequently, the law of this circuit.”


“Mississippi’s elected officials may disagree with Obergefell, of course, and may express that disagreement as they see fit – by advocating for a constitutional amendment to overturn the decision, for example,” wrote Reeves. “But the marriage license issue will not be adjudicated anew after every legislative session.  And the judiciary will remain vigilant whenever a named party to an injunction is accused of circumventing that injunction, directly or indirectly.”


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