New York Law School

Art Leonard Observations

Federal Court Rejects Challenge to Montana Law Against Plural Marriage

U.S. District Judge Susan P. Watters has accepted a recommendation from Magistrate Judge Timothy Cavan to grant the state’s motion for summary judgment in Collier v. Fox, 2018 WL 1247388 (D. Mont., March 9, 2018), adopting Findings and Recommendations, 2018 WL 1247411 (D. Mont., Feb. 22, 2018), a challenge to the constitutionality of Montana’s ban on plural marriage.

Nathan and Vicki married in South Carolina in 2000, and remain married today. “Nathan is also in a committed romantic relationship with Christine [Parkinson],” wrote Judge Cavan, “and they desire to legally marry.  Vicki and Christine are aware of Nathan’s relationship with one another, and each consents to be married to Nathan simultaneously.”  They have been living together and “raising their eight children jointly for several years.”

Nobody has threatened them with prosecution, but when Nathan and Christine applied for a marriage license, they were turned down by the Yellowstone County clerk, who wrote them that their request “could not be granted because granting the license would place the Colliers in violation of Montana Law,” specifically Mont. Code Ann. Secs. 45-5-611 and 612, which make it a crime to enter into a multiple marriage or to marry somebody who is already married to somebody else.

Judge Cavan found that they lacked standing to challenge these laws, because nobody is prosecuting them or threatening to do so, and Montana has never prosecuted anybody under these laws.

Further, wrote Judge Cavan, the Supreme Court’s decision in Reynolds v. U.S., 98 U.S. 145 (1878), rejecting a constitutional challenge to the Utah territory bigamy law, has never been overruled and is still cited as good law, despite its antiquity.

The Colliers were pinning their hopes on Obergefell v. Hodges, 135 S. Ct. 2584 (2015), in which the Supreme Court identified the right to marry as a fundamental right under the 14th Amendment Due Process Clause, whose denial would also offend equal protection. The Colliers particularly pointed to Chief Justice Roberts’ comment, in dissent, that “it is striking how much the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage.”  However, Cavan wrote, Roberts had also stated that he did “not mean to equate marriage between same-sex couples with plural marriage in all respects.  There may well be relevant differences that compel different legal analysis.”  Cavan pointed out that Roberts’ dissent “is not binding precedent, and it certainly cannot be said to have overruled Reynolds.”

This writer found both holdings – standing and binding precedent – to be disingenuous. The Colliers were denied a marriage license, which is an injury for purposes of Title III – or at least it was deemed so in dozens of cases leading up to Obergefell.  Furthermore, Reynolds was a suit against the federal government under the 5th Amendment, not a 14th Amendment case, and it predates a raft of subsequent Supreme Court decisions construing the 14th Amendment’s liberty and equality guarantees, making its reasoning practically obsolete. And the precise question presented in the two cases is different.  Not that we are suggesting that an appeal to the 9th Circuit would necessarily be successful….

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Federal Appeals Court Rules for Transgender Funeral Director in Title VII Discrimination Suit

A unanimous three-judge panel of the U.S. Court of Appeals for the 6th Circuit ruled on March 7 in Equal Employment Opportunity Commission v. R.G. & G.R. Harris Funeral Homes, Inc., 2018 WL 1177669, 2018 U.S. App. LEXIS 5720, that a Michigan funeral home violated federal anti-discrimination law by terminating a funeral director who announced that she would be transitioning during her summer vacation and would return to work as a woman.  The 6th Circuit has appellate jurisdiction over federal cases from Michigan, Ohio, Kentucky and Tennessee.

Rejecting a ruling by U.S. District Judge Sean F. Cox that the funeral home’s action was protected by the federal Religious Freedom Restoration Act (RFRA), Circuit Judge Karen Nelson Moore wrote for the court that the government’s “compelling interest” to eradicate employment discrimination because of sex took priority over the religious beliefs of the funeral home’s owner.

This is the first time that any federal appeals court has ruled that RFRA would not shelter an employer from a gender identity discrimination claim by a transgender plaintiff.  Although the 6th Circuit has allowed Title VII claims by transgender plaintiffs in the past under a “gender stereotype” theory, this is also the first time that the 6th Circuit has explicitly endorsed the Equal Employment Opportunity Commission’s conclusion that gender identity discrimination is a form of sex discrimination, directly prohibited by Title VII.  Judge Moore drew a direct comparison to a Title VII decision by the 7th Circuit in Hively v. Ivy Tech Community College, 853 F.3d 339 (7th Cir. 2017), which held similarly that sexual orientation discrimination is a form of sex discrimination, thus potentially joining in the widening split of federal appellate courts over a broad construction of Title VII to extend to both kinds of claims.

Alliance Defending Freedom’s involvement as volunteer counsel for the funeral home makes it highly likely that the Supreme Court will be asked to review this ruling.

The lawsuit was filed by the EEOC, which sued after investigating Aimee Stephens’ administrative charge that she had been unlawfully terminated by the Michigan funeral home.  After the district court ruled in favor of the funeral home, the EEOC appealed to the 6th Circuit and Stephens, represented by the ACLU, was granted standing to intervene as co-plaintiff in the appeal.

“While living and presenting as a man,” wrote Judge Moore, “she worked as a funeral director at R.G. & G.R. Harris Funeral Homes, Inc., a closely held for-profit corporation that operates three funeral homes in Michigan.  Stephens was terminated from the Funeral Home by its owner and operator, Thomas Rost, shortly after Stephens informed Rost that she intended to transition from male to female and would represent herself and dress as a woman while at work.”

Rost identifies himself as a Christian who espouses the religious belief that “the Bible teaches that a person’s sex is an immutable God-given gift,” and that he would be “violating God’s commands if he were to permit one of the Funeral Home’s funeral directors to deny their sex while acting as a representative of the organization” or if he were to “permit one of the Funeral Home’s male funeral directors to wear the uniform for female funeral directors while at work.”

“In particular,” related Judge Moore, “Rost believes that authorizing or paying for a male funeral director to wear the uniform for female funeral directors would render him complicit ‘in supporting the idea that sex is a changeable social construct rather than an immutable God-given gift.’”

As such, Rost claimed that his company’s obligation to comply with Title VII should be excused in this case because of the later-enacted Religious Freedom Restoration Act (RFRA), which provides that the federal government may not substantially burden a person’s free exercise of religion unless it has a compelling justification for doing so, and that the rule the government seeks to apply is narrowly tailored to burden religious practice no more than is necessary to achieve the government’s goal.

The funeral home moved to dismiss the case, arguing that Title VII does not ban discrimination against a person because they are transgender or transitioning, that the funeral home could reasonably require compliance with its dress code, and that requiring the funeral home to allow a “man dressed as a woman” to serve as a funeral director would substantially burden the funeral home’s free exercise of religion, as defined by Rost, and violate its rights under RFRA.

Prior to the Supreme Court’s 2014 decision, Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, there was no Supreme Court authority for the proposition that a funeral home, or any other for-profit business, could claim to “exercise religion,” but in that case the Court ruled that because business corporations are defined as “persons” in the U.S. Code, they enjoy the same protection as natural persons under RFRA.  At least in the case of a closely-held corporation such as Hobby Lobby, with a small group of shareholders who held the same religious beliefs on the issue in question – a federal regulation requiring that employer health plans cover various forms of contraception to which Hobby Lobby’s owners took exception on religious grounds – the corporation was entitled to protection under RFRA based on the religious views of its owners.  The Harris Funeral Home is analogous to Hobby Lobby Stores, albeit operating on a smaller scale, so Rost’s religious views on gender identity and transitioning can be attributed to the corporation for purposes of RFRA.

Interestingly, this would not have been an issue in the case had Stephens brought the lawsuit on her own behalf, without the EEOC as a plaintiff.  The 6th Circuit has interpreted RFRA to impose its restriction on the federal government but not on private plaintiffs suing to enforce their rights under federal statutes.  Since EEOC is the plaintiff, however, this is a case of the government seeking to impose a burden on the free exercise of religion by a business corporation, and RFRA is implicated.

District Judge Cox, bound by 6th Circuit precedent to find that Stephens had a potentially valid discrimination claim under Title VII (see Smith v. City of Salem, Ohio, 378 F. 3d 566 (2004)), nonetheless concluded that ordering a remedy for Stephens would substantially impair the Funeral Home’s rights under RFRA, granting summary judgment to the funeral home.  In another contested issue in the case, Judge Cox ruled that the EEOC could not pursue in this lawsuit a claim that the Funeral Home’s policy of paying for male employees’ uniforms but not for female employees’ uniforms violated Title VII’s sex discrimination provision.  Cox held that this claim did not grow naturally out of the investigation of Stephens’ discrimination charge, and so must be litigated separately.

The 6th Circuit reversed on both points.  As to the uniform issue, the Court found that the EEOC’s investigation of Stephens’ discrimination claim naturally led to investigating the company’s uniform policy, since the question of which uniform Stephens could wear was directly involved in Rost’s decision to terminate her.  The court reversed the summary judgment and remanded the question back to the district court to determine whether the uniform policy, which the funeral home has since modified to provide some subsidy for the cost of women’s uniforms, violates Title VII.

More significantly, the court found that Judge Cox erred on several key points in his analysis of the company’s summary judgment motion.

Cox had determined that the 6th Circuit does not recognize gender identity claims under Title VII, as such, but in rejecting a prior motion to dismiss the case had concluded that Stephens could proceed on the theory that she was fired for failing to conform to her employer’s stereotype about how men are supposed to present themselves and dress in the workplace.  Rost stated in his deposition that he objected to men dressing as women – which is how he views Stephens in light of his religious belief that gender identity is just a social construct that violates God’s plan and not a reality.

After reviewing the court’s prior transgender discrimination decisions, Judge Moore concluded that the EEOC’s view of the statute to cover gender identity discrimination directly, without reference to sex stereotypes, is correct.  “First,” she wrote, “it is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex.”

She referred to the 7th Circuit’s Hively decision, a sexual orientation case, which employed the same reasoning to find that Title VII covers sexual orientation claims.  “Here, we ask whether Stephens would have been fired if Stephens had been a woman who sought to comply with the women’s dress code.  The answer quite obviously is no.  This, in and of itself, confirms that Stephens’ sex impermissibly affected Rost’s decision to fire Stephens.”

The court also referred to a landmark ruling by the U.S. District Court in the District of Columbia, Schroer v. Billington, 577 F. Supp. 2nd 293 (D.D.C. 2008), which allowed a transgender discrimination claim against the Library of Congress, which had withdrawn an employment offer when informed that the applicant was transitioning.

And, of course, the court noted the Supreme Court’s Price Waterhouse v. Hopkins ruling (490 U.S. 228 (1989)), stating that Title VII requires “gender” to be “irrelevant to employment decisions.”  Moore wrote, “Gender (or sex) is not being treated as ‘irrelevant to employment decisions’ if an employee’s attempt or desire to change his or her sex leads to an adverse employment decision.”

Of course, Moore noted, transgender discrimination implicates the sex stereotype theory as well.  Referring to Smith v. City of Salem, she wrote, “We did not expressly hold in Smith that discrimination on the basis of transgender status is unlawful, though the opinion has been read to say as much – both by this circuit and others,” and then proceeded to say as much!  “Such references support what we now directly hold: Title VII protects transgender persons because of their transgender or transitioning status, because transgender or transitioning status constitutes an inherently gender non-conforming trait.”

In light of this holding, the funeral home had to be found in violation of the statute unless it was entitled to some exception or some affirmative defense.  One argument made in an amicus brief in support of the funeral home suggested that a person employed as a funeral director could be covered by the constitutionally-mandated ministerial exception recognized by the Supreme Court in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 565 U.S. 171 (2012).  The Supreme Court said that it is a component of free exercise of religion that if somebody is being employed to perform religious functions, the government could not dictate the hiring decision.  The court rejected this defense, noting that the funeral home has conceded that it is not a “religious organization” and was not claiming the “ministerial exception” for any of its employees.  Furthermore, even if the funeral home tried to claim the exception, the court found it would not apply to the position of a funeral director in a for-profit funeral home business.  Stephen was not employed to serve a religious function, and the duties of a funeral directly only incidentally involved any religious function in the way of facilitating participation of religious funeral celebrants.

Turning to the RFRA defense, the court first dispensed with the argument that as Stephens had intervened as a co-plaintiff, RFRA had been rendered irrelevant because this was no longer purely a government enforcement case.  The EEOC remains the principal appellant in the case, and the court would not dismiss the RFRA concern on that basis.

However, the court found, significantly, that requiring the funeral home to employ Stephens after her transition would not impose a “substantial” burden within the meaning of RFRA.  The funeral home argued that the “very operation of the Funeral Home constitutes protected religious exercise because Rost feels compelled by his faith to serve grieving people through the funeral home, and thus requiring the Funeral Home to authorize a male funeral director to wear the uniform for female funeral directors would directly interfere with – and thus impose a substantial burden on – the Funeral Home’s ability to carry out Rost’s religious exercise of caring for the grieving.”

Rost suggested two ways this would impose a substantial burden.  First, he suggested, letting Stephens dress as a woman “would often create distractions for the deceased’s loved ones and thereby hinder their healing process (and the Funeral Home’s ministry),” and second, “forcing the Funeral Home to violate Rost’s faith would significantly pressure Rost to leave the funeral industry and end his ministry to grieving people.”  The court did not accept either of these as “substantial within the meaning of RFRA.”

For one thing, a basic tenet of anti-discrimination law is that businesses may not rely on customer preferences or biases as an excuse to refuse to employ people for a reason forbidden by Title VII.  Courts have ruled that even if it is documented that employing somebody will alienate some customers, that cannot be raised as a defense to a valid discrimination claim.  “We hold as a matter of law,” wrote Moore, “that a religious claimant cannot rely on customers’ presumed biases to establish a substantial burden under RFRA.”

The court rejected Rost’s argument that the EEOC’s position put him to the choice of violating his religious beliefs by, for example, paying for a women’s uniform for Stephens to wear, or otherwise quitting the funeral business.  The court pointed out that there is no legal requirement for Rost to pay for uniforms for his staff.  This is distinguishable from the Hobby Lobby case, where the issue was a regulation requiring employers to bear the cost of contraceptive coverage.  Further, wrote Moore, “simply permitting Stephens to wear attire that reflects a conception of gender that is at odds with Rost’s religious beliefs is not a substantial burden under RFRA,” because “as a matter of law, tolerating Stephens’ understanding of her sex and gender identity is not tantamount to supporting it.”

Since the court found no substantial burden, it did not necessarily have to tackle the question of the government’s justification for imposing any burden at all.  But with an eye to a likely appeal of this case, the court went ahead to determine whether, if it is wrong about this and the Supreme Court were to find that this application of Title VII to Rost’s business does impose a substantial burden, it passes the strict scrutiny test established by RFRA.

As to this, the court reached perhaps its most significant new ruling in the case: Having identified gender identity claims as coming within the ambit of sex discrimination claims, the court had to determine whether the government has a compelling interest and that enforcing Title VII is the least intrusive way of achieving that interest.  Even the Funeral Home was willing to concede that on a general level the government has a compelling interest, expressed through Title VII, in eradicating sex discrimination in the workplace, but the Funeral Home argued that interest did not justify this particular case, compelling it to let a man dress as a woman while working as a funeral director.  “The Funeral Home’s construction of the compelling-interest test is off-base,” wrote Moore.  “Rather than focusing on the EEOC’s claim – that the Funeral Home terminated Stephens because of her proposed gender nonconforming behavior – the Funeral Home’s test focuses instead on its defense that the Funeral Home merely wishes to enforce an appropriate workplace uniform.  But the Funeral Home has not identified any cases where the government’s compelling interest was framed as its interest in disturbing a company’s workplace policies.”  The question, according to the court’s interpretation of Supreme Court precedents, is whether “the interests generally served by a given government policy or statute would not be ‘compromised’ by granting an exemption to a particular individual or group.”

“Failing to enforce Title VII against the Funeral Home means the EEOC would be allowing a particular person – Stephens – to suffer discrimination, and such an outcome is directly contrary to the EEOC’s compelling interest in combating discrimination in the workforce.” And, continued Moore, “here, the EEOC’s compelling interest in eradicating discrimination applies with as much force to Stephens as to any other employee discriminated against based on sex.”

The court specifically rejected the Funeral Home’s argument that its religious free exercise rights should take priority as being derived from the 1st Amendment, because that would go directly against Supreme Court precedent, which has rejected the idea that individuals and businesses generally enjoy a 1st Amendment right to refuse to comply with laws because of their religious objections.  Congress did not have authority, in the first version of RFRA that it passed and that was invalidated by the Supreme Court, to overrule a Supreme Court decision.  What RFRA does is to create a statutory right, not to channel a constitutional right, and the statutory right is circumscribed to cases where a federal law imposes a substantial burden on free exercise without having a compelling justification for doing so.  This does, not, according to the 6th Circuit, elevate a business’s free exercise rights above an individual’s statutory protection against discrimination.  (Indeed, Justice Samuel Alito said as much in his Hobby Lobby opinion for the Supreme Court, albeit in the context of race discrimination.)

Finally, as required by RFRA, the court found that requiring compliance with Title VII was the least restrictive means available for the government to achieve its compelling interest in eradicating employment discrimination because of sex.  The district court had suggested that the EEOC could pursue a less restrictive alternative by getting the parties to agree to a gender-neutral uniform for the workplace, thus removing Rost’s objection to a “man dressed as a woman.”  “The district court’s suggestion, although appealing in its tidiness, is tenable only if we excise from the case evidence of sex stereotyping in areas other than attire,” wrote Judge Moore.  “Though Rost does repeatedly say that he terminated Stephens because she ‘wanted to dress as a woman’ and ‘would no longer dress as a man,’ the record also contains uncontroverted evidence that Rost’s reasons for terminating Stephens extended to other aspects of Stephens’s intended presentation.”  It was not just about the uniforms.

The court could have reversed the summary judgment and sent the case back to the district court to reconsider its holding and determine whether a trial was needed, but in fact there are no material facts in dispute once one treats the 6th Circuit’s opinion as presenting the law of the case on interpreting Title VII and RFRA.  With no material facts to be resolved at this stage, the 6th Circuit directly granted summary judgment to the EEOC on its claim that the Funeral Home violated Title VII and is not entitled to a defense under RFRA.  Stephens won on the merits, unless the Funeral Home is successful in getting the Supreme Court to take the case and reverse the 6th Circuit’s decision.

The appeal was argued for the EEOC by Anne Noel Occhialinio, and for Stephens by ACLU attorney John A. Knight.  Douglas G. Wardlow of Alliance Defending Freedom argued on behalf of the Funeral Home.  The case attracted amicus briefs from Lambda Legal, Americans United for Separation of Church and State, Cleveland-Marshall College of Law, Private Rights/Public Conscience Project (New York) and various law firms offering pro bono assistance to amici on briefs.

Judge Moore was appointed to the court by President Bill Clinton.  The other judges on the unanimous panel were Helene N. White, appointed by President George W. Bush, and Bernice W. Donald, appointed by President Barack Obama.  Showing a recent trend in diversifying the federal bench, the panel was, unusually, made up entirely of female circuit judges.  As a result of several appointments by President Obama, half of the active judges on the 6th Circuit are women, the only federal appellate court yet to achieve gender parity.

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U.S. Court Orders Idaho to Issue Birth Certificates to Transgender Applicants

U.S. Magistrate Judge Candy Dale (D. Idaho), has ordered the state of Idaho to allow transgender people born there to obtain birth certificates correctly identifying them according to their gender identity.    F.V. & Martin v. Barron, 2018 WL 1152405, 2018 U.S. Dist. LEXIS 36550.  Once Idaho has complied with Judge Dale’s March 5 Order, the only states where transgender people can’t get appropriate new birth certificates will be Ohio, Tennessee, and Kansas.  Also, the Commonwealth of Puerto Rico, a U.S. territory, does not provide such birth certificates. The other 46 states and the District of Columbia do, although the criteria for getting them vary from state to state.

Judge Dale ruled in a lawsuit filed by Lambda Legal on behalf of two transgender women born in Idaho, whose birth certificates identify them as male and use the names their parents gave them at birth.

One, F.V., states that “she knew from approximately 6 that she was female” and she “began to live openly as a female when she was 15 years old” and has done so since.  She has transitioned “both medically and socially,” and has gotten a legal name change, which she then used to get a new driver’s license, passport, and social security card.  However, when she contacted the Idaho Bureau of Vital Records and Health Statistics in the Department of Health and Welfare to get a new birth certificate, she was told that the Bureau “does not consider such applications.”

According to Judge Dale’s opinion, “F.V. asserts that living with a birth certificate declaring she is male is a permanent and painful reminder that Idaho does not recognize her as she is – as a woman.  Beyond this, she states that presenting an identity document that conflicts with her gender identity is both humiliating and dangerous: it puts her at risk of violence by disclosing against her will and intentions that she is a transgender individual.”

The other plaintiff, Dani Martin, tells a similar story, having known from an early age that she was female despite her birth name and anatomy.  However, writes Judge Dale, “fear of rejection and bullying prevented her from coming out when she was younger.”  With support from her spouse and family she began to transition in 2014.  She has lived as a woman since then, taking steps both medically and socially to “bring her body and expression of gender in line with her female identity.”

Like F.V., Dani has legally changed her name and obtained a new driver’s license and social security card, but the state’s policy blocked her from getting a new birth certificate, which, she claims, “has exposed her to harassment and embarrassment,” and has “prevented her from making the change in other important records.”

Lambda’s complaint charged that Idaho’s policy against issuing new birth certificates violates the 1st and 14th Amendments of the Constitution, citing both the due process and equal protection clauses.  Judge Dale decided to confine her ruling to the Equal Protection claim.

Any law or policy that systematically treats people differently based on any characteristic requires a rational, non-discriminatory justification.  In this lawsuit, the state conceded that there was no rational basis for refusing to issue the requested certificates, but such changes are not specifically authorized under the state’s vital statistics statute, and evidently the state administration was either unwilling to ask the legislature to change that or calculated – probably correctly – that any such request would be futile.  Theoretically, the administration could change the policy by adopting a new rule, but was not willing to take whatever political heat that would generate.  In effect, the state’s response to the lawsuit was to ask the court to issue an order, so that state officials could refute any criticism by putting the “blame” for this change on the court.

Idaho does issue new birth certificates for a variety of reasons, including correcting factual errors made at birth, adding listing of fathers for people born to unmarried women, in response to later acknowledgements or determinations of paternity, and changing names and paternal and maternal information as a result of adoptions.  In those cases, “the vital statistics laws require the amendments not be marked or noted on the birth certificate,” but a “catch-all” provision in the law, which applies to any birth certificate changes that are not specifically authorized by the statute, says that amendments made under the “catch-all” provision “must be described on the birth certificate.”  Since including such information on a new certificate would effectively “out” any transgender person presenting their certificate for any reason, the lawsuit sought to ensure that the requested certificates appear completely ordinary on their face, with no indication of amendment or special circumstances, and Judge Dale incorporate this in her order.

The only real dispute between the parties was whether the court should go beyond the state’s concession that it had no rational policy justification for an outright denial of new birth certificates for transgender people, to determine whether gender identity itself is a “suspect classification,” imposing a high level of justification for the challenged policy.  The state urged Judge Dale not to do that,  but the plaintiffs, concerned about the possibility that the state might come up with a new rule imposing costly barriers to obtaining the new licenses – such as a requirement for complete surgical transition, which is still the rule in many other states – asked Judge Dale to determine that a more demanding level of judicial review would apply in evaluating any such rule.

Siding with the plaintiffs, Dale extended her opinion to provide a detailed discussion of gender identity and its status under federal constitutional law, concluding that heightened scrutiny should be applied.  After reviewing advances in the understanding of human sexuality, she wrote, “to conclude discrimination based on gender identity or transsexual status is not discrimination based on sex is to depart from advanced medical understanding in favor of archaic reasons.”  Under binding Supreme Court precedents, discrimination because of sex requires heightened scrutiny.

Furthermore, Judge Dale found, gender identity or transgender status should be treated the same way that the 9th Circuit (whose jurisdiction includes Idaho) has treated sexual orientation or homosexual status.  “The pervasive and extensive similarities in the discrimination faced by transgender people and homosexual people are hard to ignore,” she wrote. “(1) Transgender people have been the subject of a long history of discrimination that continues to this day; (2) transgender status as a defining characteristic bears no ‘relation to ability to perform or contribute to society;’ (3) transgender status and gender identity have been found to be ‘obvious, immutable, or distinguishing characteristics;’ and (4) transgender people are unarguably a politically vulnerable minority.”

“This is especially true in Idaho,” the judge commented, “where transgender people have no state constitutional protections from discrimination based on their transgender status in relation to employment decisions, housing, and other services.  Therefore, transgender people bear all of the characteristics of a quasi-suspect class and any rule developed and implemented by IDHW should withstand heightened scrutiny review to be constitutionally sound.”   This would mean that any challenged requirement would have be supported by an important government interest that the requirement is shown to have substantially advanced.  Under this standard, it is unlikely that a surgical requirement would withstand judicial review, as many other states (and countries) have come to agree that imposing such a requirement poses an unnecessary barrier to the ability of many transgender people to obtain appropriate official documentation, without serving any significant public purpose.

Judge Dale pointed out that the state already has in place an established procedure for dealing with amendments to birth certificates, so “allowing such amendments would pose no new burden on Defendants,” since “Idaho vital statistics laws allow IDHW to create and implement a constitutionally-sound rule, and IDHW already has in placed processes and procedures to  facilitate the amendment of birth certificates in the ordinary course of its everyday activities.”  Thus, she found it appropriate to issue an injunction, giving the state up to one month to “begin accepting applications made by transgender people to change the sex listed on their birth certificates,” and specifying that the new certificates “must not include record of amendment to the listed sex” and should use the new legal name of the applicant.

The plaintiffs are represented by Lambda Legal attorneys Peter Renn and Kara Ingelhart, with pro bono local counsel Monica G. Cockerille of Boise, Idaho.

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2nd Circuit, En Banc, Votes 10-3 That Sexual Orientation Discrimination Violates Federal Employment Discrimination Law

The U.S. Court of Appeals for the 2nd Circuit, with appellate jurisdiction over federal cases from New York, Connecticut and Vermont, ruled on February 26 that Title VII of the Civil Rights Act of 1964, which prohibits discrimination because of an individual’s sex, also makes it unlawful for employers to discriminate against a person because of his or her sexual orientation.


The ruling in Zarda v. Altitude Express, Inc., 2018 U.S. App. LEXIS 4608, was not unexpected, as the questions and comments of the judges during the oral argument held on September 26, 2017, suggested general agreement that it was time for the 2nd Circuit to bring its case law in line with the evolving understanding that sexual orientation discrimination is a form of sex discrimination.


The Zarda ruling widens a split among federal appeals courts, as the 2nd Circuit joins the Chicago-based 7th Circuit, which ruled the same way last spring in Hively v. Ivy Tech Community College, in departing from the consensus of all the other circuit courts that have previously addressed the issue.  Although the Supreme Court recently refused to review a three-judge panel decision from the Atlanta-based 11th Circuit, Evans v. Georgia Regional Hospital, which had decided the other way, the Zarda ruling makes it more likely that the Court will soon take up the issue, especially if an employer on the losing end of the argument petitions the court to do so.


The Zarda case dates from the summer of 2010, when Donald Zarda, an openly gay sky-diving instructor, was fired by Altitude Express after a female customer’s boyfriend complained that Zarda had “come out” to his girlfriend while preparing for a “tandem skydive” during which they would be strapped together.


Zarda complained to the Equal Employment Opportunity Commission (EEOC), which at that time had not yet accepted the idea that sexual orientation claims violate Title VII. In his EEOC charge, Zarda asserted that he suffered discrimination because of his gender, complaining that he was fired because he “honestly referred to [his] sexual orientation and did not conform to the straight male macho stereotype.”  The EEOC, which did not then take a position on the merits of his claim, issued him a letter authorizing him to bring a lawsuit, which he did in the U.S. District Court for the Eastern District of New York.


Zarda’s court complaint cited Title VII, alleging sex discrimination (including discrimination because of a failure to conform to gender stereotypes), and the New York Human Rights Law, which explicitly outlaws sexual orientation discrimination.  The district court rejected his Title VII claim, following 2nd Circuit precedent, but allowed his state law claim to go to trial, where a jury ultimately ruled against him.  By the time of the trial, unfortunately, Zarda had died in a sky-diving accident, but the lawsuit was continued by his estate, seeking damages for employment discrimination.


In July 2015, the EEOC changed its view of the sexual orientation issue under Title VII, issuing a decision in the case of David Baldwin, a gay air traffic controller suing the U.S. Transportation Department.  The EEOC held that when an employer discriminates because of a person’s sexual orientation, the employer is unlawfully taking account of the person’s sex in making an employment decision.  Zarda’s Estate sought reconsideration of its Title VII claim from the district court, but was turned down, and encountered the same rejection from a three-judge panel of the court of appeals last spring.  The three-judge panel consisted of Circuit Judges Dennis Jacobs, Robert Sack, and Gerard Lynch.


However, in a different case decided last spring, Christiansen v. Omnicom Group, also presenting the sexual orientation issue under Title VII, a three-judge panel applied 2nd Circuit precedent to reject a sexual orientation claim but, in a concurring opinion, Chief Judge Robert Katzmann, taking note of the 7th Circuit’s Hively ruling and the EEOC’s Baldwin decision, suggested that the 2nd Circuit should reconsider its precedent in an appropriate case.  That would require a rare “en banc” review by the full bench of the Circuit.  The Zarda case, decided shortly after Christiansen, provided the opportunity for this, and the Circuit voted to grant a petition for reconsideration.


The panel that heard arguments on September 26 included all eleven active judges of the circuit plus two senior judges, Robert Sack and Gerard Lynch, who were part of the three-judge panel whose decision was being reconsidered.


All ten judges in the majority agreed with the proposition that individuals can bring a sexual orientation discrimination claim under Title VII, but only five judges agreed to base their decision on the three different theories that the EEOC and the 7th Circuit had embraced in their decisions.


Judge Katzmann wrote what the court described as the “majority opinion,” basically channeling his concurring opinion from the Christiansen case.  “Logically, because sexual orientation is a function of sex and sex is a protected characteristic under title VII, it follows that sexual orientation is also protected,” wrote Katzmann, explaining the first of three theoretical bases for the ruling, continuing that “because sexual orientation discrimination is a function of sex, and is comparable to sexual harassment, gender stereotyping, and other evils longs recognized as violating Title VII, the statute must prohibit it.”


“Our conclusion is reinforced by the Supreme Court’s test for determining whether an employment practice constitutes sex discrimination,” he continued.  “This approach, which we call the ‘comparative test,’ determines whether the trait that is the basis for discrimination is a function of sex by asking whether an employee’s treatment would have been different ‘but for that person’s sex.’”  Here her reverted to the 7th Circuit’s Hively decision, where that court found that a lesbian college professor, a woman who was attracted to women, would not have been fired if she was attracted to men.  “But for” her being a woman, her attraction to women would not have led to her discharge.


“To determine whether a trait operates as a proxy for sex,” he wrote, “we ask whether the employee would have been treated differently ‘but for’ his or her sex.  In the context of sexual orientation, a woman who is subject to an adverse employment action because she is attracted to a woman would have been treated differently if she had been a man who was attracted to women.  We can therefore conclude that sexual orientation is a function of sex and, by extension, sexual orientation discrimination is a subset of sex discrimination.”


The second theory is the gender stereotype theory.  “Specifically,” wrote Katzmann, “this framework demonstrates that sexual orientation discrimination is almost invariably rooted in stereotypes about men and women.”  He reviewed the history of Supreme Court rulings developing the stereotype theory in the context of sex discrimination.


Finally, he turned to the associational theory, noting that the 2nd Circuit had accepted this theory in the context of race discrimination in a 2008 decision involving a white man who was discharged because he had married a black woman.  The court had found that this was discrimination because of both his race and the race of his wife, and thus violated Title VII.  Applying the reasoning of that case, he wrote, “if a male employee married to a man is terminated because his employer disapproves of same-sex marriage, the employee has suffered associational discrimination based on his own sex because ‘the fact that the employee is a man instead of a woman motivated the employer’s discrimination against him,’” quoting from the EEOC’s Baldwin decision.


Katzmann rejected the argument that the failure of Congress to approve any of more than fifty bills that have been introduced since the 1970s to add sexual orientation to the prohibited grounds for discrimination under federal law should defeat Zarda’s claim, or that the failure of Congress to address this issue when it amended Title VII in 1991 to overrule several Supreme Court decisions on other discrimination issues should be construed to constitute congressional approval of the three court of appeals decision that had up to that time rejected sexual orientation claims under Title VII.


This appeal was unusual in that the government filed amicus briefs and made arguments on both sides of the issue.  The EEOC filed a brief supporting the Zarda Estate’s claim that Title VII covers sexual orientation claims, consistent with its ruling in the Baldwin case, but the Justice Department filed a brief and participated in the oral argument on the other side, taking the view, consistent with Attorney General Jeff Sessions’ announced position, that Title VII does not cover sexual orientation or gender identity claims.  A large portion of Judge Katzman’s opinion, which runs over 65 pages, was devoted to refuting various arguments made by the Justice Department.


Several of the concurring judges joined the result but limited their agreement to the associational discrimination theory, finding it to be consistent with the Circuit’s 2008 race discrimination case.  Judge Dennis Jacobs went further, explaining why he was not convinced by the other theories accepted by Judge Katzmann.  Judge Raymond Lohier, Jr., premised his agreement on Judge Katzmann’s “but for” argument.


Judge Jose Cabranes concurred in the judgment without signing on to any of the other opinions, characterizing this as “a straightforward case of statutory construction.” He wrote, “Zarda’s sexual orientation is a function of his sex.  Discrimination against Zarda because of his sexual orientation therefore is discrimination because of his sex, and is prohibited by Title VII.  That should be the end of the analysis.”


Judge Lynch’s dissenting opinion was actually longer than Judge Katzmann’s majority opinion, providing a detailed history of the adoption of Title VII to support his agreement with Judge Diane Sykes of the 7th Circuit (who dissented in the Hively case) that the court must confine its interpretation of Title VII to what the legislators thought they were enacting in 1964.  Their argument is that the role of the court in statutory interpretation is relatively modest, and does not extend to “updating” statutes to embrace new legal principles that are not clearly logical extensions of what the legislature intended to address.  Lynch went out of his way to say multiple times that he thinks sexual orientation discrimination is a bad thing, to laud the states that have banned such discrimination, and to bemoan the failure of Congress to address the issue.  But, he insisted, it was not the role of the court to impose new legal obligations on private employers under the guise of interpreting a statute adopted more than fifty years ago. Judges Debra Ann Livingston and Reena Raggi also dissented, agreeing with Judge Lynch.


Thus, the three dissenters premised their view on a judicial philosophy concerning the statutory construction rather than a view about whether sexual orientation discrimination should be illegal.


New York, Connecticut and Vermont already have state laws banning sexual orientation discrimination in the workplace, so the 2nd Circuit’s ruling does not alter the obligations of employers and the rights of employees in a substantial way.  But it opens the doors of the federal court houses to such discrimination claims, and there are some ways in which Title VII can provider a broader range of protection than the state laws.  For example, at the Zarda trial, the judge gave a jury charge that required a finding that Zarda’s sexual orientation was the motivating factor in his discharge.  Such a charge would be too narrow under Title VII, where a jury could find a statutory violation as long as sexual orientation was “a factor,” even if there were other factors contributing to the decision.  Thus, the jury’s verdict on the state law claim will not preclude a ruling in favor of Zarda’s Estate when the case is returned to the district court for disposition of the Title VII claim.


New York solo practitioner Gregory Antollino has represented first Zarda and then his Estate throughout the proceedings, with Stephen Bergstein as co-counsel for the Estate. Altitude Express, which now has to decide whether to petition the Supreme Court for review or to defend the case back in the Eastern District court, is represented by Saul D. Zabell of Bohemia, New York.  Arguing as amicus in support of Zarda were Jeremy Horowitz from the EEOC and Gregory Nevins from Lambda Legal.  Arguing as amicus in support of Altitude Express were Hashim M. Mooppan from the Justice Department and Adam K. Mortara, of Bartlit Beck Herman Palenchar & Scott LLP, Chicago, as a court-appointed amicus. The case attracted many other amicus curiae filings, including from the LGBT Bar Association of Greater New York, and a wide array of civil rights, civil liberties, and LGBT rights groups in support of Zarda’s appeal.  On the other side were arrayed the Justice Department and some conservative groups, including the Christian Legal Society, the National Association of Evangelicals, the U.S. Justice Foundation, and the Conservative Legal Defense and Education Fund.



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Iowa Appeals Court Affirms Ruling Against Lesbian’s Brother Attempting to Invalidate Bequest to Her Surviving Partner


David Lance Wilson struck out in his attempt to get the Iowa courts to hold that a provision in his late sister’s will leaving her entire estate to her long-time partner, Susan Woodall Fisher, was automatically revoked when the women allegedly split up nine years before the sister’s death. Affirming a summary judgment ruling by Crawford County District Judge Patrick H. Tott, the Iowa Court of Appeals ruled on February 7 in Estate of Wilson; Wilson v. Fisher, 2018 WL 739248, 2018 Iowa App. LEXIS 155, that Iowa’s Probate Code, Sec. 633.271(1), would only revoke such a bequest if a marriage was dissolved in a court action, but there is no court record of any such proceeding.


Although the court’s ruling was an unexceptionable interpretation of the statute on its face, the factual setting of the case is a bit odd, to say the least. In order to attempt to invoke the revocation statute, David Wilson had to allege in his petition for declaratory judgment that the women had been legally married, a contention that is demonstrably untrue, but which was accepted as an “undisputed fact” for purposes of this case in the responsive pleading filed by the co-executors of the estate, Fisher and John C. Werden, and thus by the court as well, in its opinion by Judge Christopher L. McDonald.


According to Judge McDonald’s summary of the factual allegations, Leslie Wilson and Susan Fisher, same-sex partners, were married in Colorado “sometime before November 6, 1991,” on which date Leslie “executed her last will and testament. Under the will, Susan was to receive Leslie’s entire estate.  Leslie’s brother, David, was listed as the successor beneficiary.”  After Leslie passed away in March 2014, Susan filed an application in the Crawford County District Court for probate of a “foreign probated will.”  District Judge Tott admitted the will into probate, and appointed Fisher and John C. Werden as “personal representatives” of the Iowa estate.  “Susan subsequently filed an election to take under the will as Leslie’s surviving spouse.  In June 2015, the personal representatives executed and recorded a court officer deed conveying an undivided one-half interest in real property owned by Leslie at the time of her death to Susan.”


David showed up six months later, filing his petition in the District Court alleging that Susan and Leslie had “dissolved” their marriage and that they “never cohabitated again and never remarried.” According to David, this dissolution, which involved terminating their relationship and dividing their assets, occurred in 2005.  He was relying on Code Section 633.271(1), titled “Effect of divorce or dissolution,” which states, “If after making a will the testator is divorced or the testator’s marriage is dissolved, all provisions in the will in favor of the testator’s spouse … are revoked by the divorce or dissolution of marriage, unless the will provides otherwise.”  Of course, this provision only applies if there was a marriage to begin with.


In a footnote, the court acknowledged that “same-sex marriages were not recognized in Colorado until October 2014. However, the parties stipulated in their pleadings that ‘Susan … and Leslie … were married in the state of Colorado’ prior to that time.  We need not address the issue of whether the parties were legally married in Colorado because it is immaterial to our resolution of the case.  If they were not legally married under Colorado law, then Iowa Code section 633.271(1)(2016) does not apply, and we would affirm.  Under the analysis used in this opinion, which assumes without deciding they were legally married, we also affirm.”


David sought to persuade the court that because the provision in question states “divorce or dissolution of marriage,” the words “divorce” and “dissolution” must refer to two different things. A “divorce” is obviously a legal proceeding terminating a marriage.  David argued that “dissolution” must, therefore, refer to an informal voluntary termination of a marriage by the parties without involving the courts.  But the court of appeals panel unanimously rejected this argument.


Judge McDonald referred to Chapter 598 of the Iowa code which “expressly defines a ‘dissolution of marriage’ as ‘a termination of the marriage relationship,’” and more specifically to Section 598.1(2), in which, he asserted, “The legislature has expressly directed that the term ‘dissolution of a marriage’ ‘shall be synonymous with the term ‘divorce.’” Thus, the court concluded, “the terms ‘divorced’ and ‘dissolved’ as used in Section 633.271(1) carry the same meaning – the statute uses the terms in the context of marital relations, and the legislature has expressly defined those terms in the context of marital relations to be synonymous.  In Iowa, a divorce or dissolution of a marriage may only be decreed by a court upon evidence ‘that there has been a breakdown of the marriage relationship to the extent that the legitimate objects of matrimony have been destroyed and there remains no reasonably likelihood that the marriage can be preserved.’”


As to the contention that parties can voluntarily “dissolve” a marriage without involving the courts, McDonald quoted a 1966 Iowa Supreme Court ruling, stating “We know of no such thing as a common law divorce.” McDonald found similar authority under Colorado law.


“It is undisputed that no decree has ever been entered dissolving Susan and Leslie’s marriage. The facts which David argues are in dispute are legally immaterial to the issue of whether Susan and Leslie’s marriage was dissolved.”  Thus, the court affirmed Judge Tott’s ruling granting summary judgment in favor of the Estate and co-executors, denying David’s request for a declaratory judgment that the bequest to Susan was automatically revoked.


The court also denied David’s request to delay ruling on the co-executors’ motion for summary judgment until he could obtain discovery. Such discovery would be irrelevant to disposition of this motion, because David’s attempt to use the statute to get the bequest to Susan “revoked” must be rejected regardless of which version of the “facts” one accepts, so long as there is no record of any court decree “dissolving” the Fisher-Wilson “marriage.”  And, of course, even if David is correct in asserting that the women split up and divided their assets in 2005, Leslie’s failure to revoke her will would leave the bequest in place in the absence of a valid marriage and a legal divorce.


Aaron W. Ahrendsen of Eich, Werden & Steger, P.C., Carroll, Iowa, represents the co-executors. Bradley J. Nelson of Norelius Nelson Law Firm, Denison, Iowa, represents David.

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Hawaii Appeals Court Says Religious B&B Owner May Not Reject Same-Sex Couples as Customers

Hawaii Appeals Court Says Religious B&B Owner May Not Reject Same-Sex Couples as Customers

The Intermediate Court of Appeals of Hawaii has affirmed a ruling by the state’s 1st Circuit Court that the operator of an owner-occupied Bed & Breakfast violated the state’s public accommodations law by refusing to rent a room to a lesbian couple from California who were seeking vacation accommodations.  The opinion for a three-judge panel of the court by Chief Judge Craig Nakamura rejected the defendant’s argument that this application of the law violates her constitutional rights, and also rejected an argument that because the B&B is owner-occupied it is entitled to an exemption under a law governing residential real estate transactions.  Cervelli v. Aloha Bed & Breakfast, No. CAAP-13-0000806 (Feb. 23, 2018).

Diane Cervelli emailed Aloha Bed & Breakfast to determine whether a room was available for a planned vacation trip, then following up in a phone call with the owner, Phyllis Young, about making a room reservation for herself and her partner, Taeko Bufford.  Everything went well on the telephone until Cervelli mentioned that she was reserving for herself and another woman.  Young asked if Cervelli and the other woman were lesbians.  When Cervelli answered “Yes,” Young said, “We’re strong Christians.  I’m very uncomfortable in accepting the reservation from you.”  Young hung up on Cervelli.  Bufford then called and received the same treatment.  “Apart from Plaintiff’s sexual orientation,” wrote Judge Nakamura, “there was no other reason for Young’s refusal to accept Plaintiffs’ request for a room.”

Each of the women filed a complaint with the Hawaii Civil Rights Commission, alleging a violation of the state’s public accommodations law.  The Commission found “reasonable cause” to believe that Aloha B&B had violated the statute, but bowed to the plaintiffs’ desire to file a court action rather than pursue the matter administratively, issuing them a “right to sue letter.”  After the lawsuit was filed in the Circuit Court, the Commission intervened as a co-plaintiff.

The law’s definition of “public accommodation” includes “an inn, hotel, motel, or other establishment that provides lodging to transient guests,” and lists “sexual orientation” as a prohibited ground for discrimination. A different statute, governing residential leases, provides an exemption from anti-discrimination requirements for “the rental of a room or up to four rooms in a housing accommodation by an owner or lessor if the owner or lessor resides in the housing accommodation.”  Aloha B&B argued that it was entitled to the owner-occupied premises exemption, but both the circuit court and the court of appeals disagreed.  They found that the exemption was intended to govern residential leases creating a landlord-tenant relationship in which the tenant moves in and resides in the premises for an extended period of time, not for “transient” customers who generally stay for a few days at best and are not establishing their residence in the rented rooms.

The court said that it was “clear based on the plain statutory language that Aloha B&B is a ‘place of public accommodation,’” and noted that the defendant had admitted in its pretrial statement that “it offers bed and breakfast services to the general public.” Reviewing the defendant’s advertising practices, and the data showing that the overwhelming majority of its customers – running up to 100 or more individuals a year – stay for only a few days, the court found Aloha’s claimed exemption inapplicable.  The court noted that Aloha generally rented rooms to anybody who applied, denying services only to gay people and smokers.

Aloha raised three constitutional defenses.

First, it argued that requiring it to rent a room to this lesbian couple violated Young’s right of privacy. “Aloha B&B argues that the right of privacy is ‘the right to be left alone,’” wrote Judge Nakamura.  “However, to the extent that Young has chosen to operate her bed and breakfast business from her home, she has voluntarily given up the right to be left alone.  In choosing to operate Aloha B&B from her home, Young, for commercial purposes, has opened up her home to over one hundred customers per year, charging them money for access to her home.  Indeed, the success of Aloha B&B’s business and its profits depend on members of the general public entering Young’s home as customers.  In other words, the success of Aloha B&B’s business required that Young not be left alone.”

“The privacy right implicated by this case is not the right to exclude others from a purely private home,” continued Nakamura, “but rather the right of a business owner using her home as a place of public accommodation to use invidious discrimination to choose which customers the business will serve. We conclude that Young’s asserted right to privacy did not entitle her to refuse to provide Plaintiffs with lodging based on their sexual orientation.”

Next, Young claimed a violation of her right of “intimate association,” but the court rejected this claim as well. “The relationship between Aloha B&B and the customers to whom it provides transient lodging is not the type of intimate relationship that is entitled to constitutional protection against a law designed to prohibit discrimination in public accommodations,” wrote Nakamura, again taking note of the large volume of customers passing through the premises for short stays over the course of a year.  “The hundreds of customer relationships Aloha B&B forms through its business is far from the ‘necessarily few’ family-type relationships that are subject to constitutional protection,” he wrote.  “With respect to the purpose for which the relationship is formed, Aloha B&B forms relationships with its customers for commercial, business purposes, and it is only the commercial aspects of the relationship” that the public accommodations law regulates.

Young had testified that the “primary purpose” of the B&B is to “make money,” wrote Nakamura, and, “She also admitted that if she could not make money by running Aloha B&B, she ‘wouldn’t operate it.’ Young does not operate Aloha B&B for the purpose of developing ‘deep attachments and commitments’ to its customers.”

Finally, Young made a “free exercise of religion” claim. This was doomed to fail under the federal Constitution, since the Supreme Court has held that individuals and businesses do not enjoy a constitutional exemption from complying with a “valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribe (or proscribes).”  See Employment Division v. Smith, 494 U.S. 872 (1990).  Thus, Young sought instead to locate her argument in the Hawaii constitution, arguing that the court should depart from federal constitutional precedents and “impose a compelling state interest requirement, and apply strict scrutiny in deciding its free exercise claim under the Hawaii Constitution.”

The court was unwilling to take the bait, stating, “We need not decide whether a higher level of scrutiny should be applied to a free exercise claim under the Hawaii Constitution than the United States Constitution. This is because we conclude that [the public accommodations law] satisfies even strict scrutiny as applied to Aloha B&B’s free exercise claim.”  That is, the court concluded that the state of Hawaii “has a compelling interest in prohibiting discrimination in public accommodations,” and that the law is “narrowly tailored to achieve Hawaii’s compelling interest” in prohibiting such discrimination.

The court’s ruling affirmed the circuit court’s decision granting summary judgment in favor of the plaintiffs and the Civil Rights Commission on the liability phase of the case. Unless the case goes up to the Hawaii Supreme Court, the next step would be to send it back to the circuit court for a determination of damages for the plaintiffs.

The plaintiffs are represented by Lambda Legal staff attorney Peter C. Renn and local Hawaii counsel Jay Handlin and Linsay N. McAneeley of Carlsmith Ball LLP. Robin Wurtzel, Shirley Naomi Garcia and April L. Wilson-South represented the Civil Rights Commission in the case.  And, no surprise, Aloha B&B is represented by attorneys from Alliance Defending Freedom, a litigation organization that opposed LGBT rights at every opportunity.

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Second N.Y. Appellate Division Court Reaffirms Parental Rights of Married Lesbians

Following a precedent set on January 25 by the Albany-based N.Y. 3rd Department Appellate Division, the Brooklyn-based N.Y. 2nd Department Appellate Division issued a unanimous decision on February 21 ordering the dismissal of a sperm donor’s attempt to establish parentage and get legal visitation with a child born to a married lesbian couple.

As in the earlier case, Christopher YY v. Jessica ZZ & Nichole ZZ, 2018 WL 541768, 2018 N.Y. App. Div. LEXIS 489 (3rd Dept.), the sperm donor in this case, Joseph O. v. Danielle B. & Joynell B., 2018 WL 988920 (2nd Dept.), was not seeking custody but wanted legal acknowledgment of his biological parentage of the child and the legal right to visitation with the child.  Following the earlier ruling, and overruling Orange County Family Court Judge Victoria B. Campbell, the 2nd Department panel found that the principal of “equitable estoppel” barred Joseph O.’s lawsuit, even though the parties did not comply with a provision of the Domestic Relations Law, Section 73, which that would have created an “irrebuttable presumption” that the married couple, Danielle V. and Joynell B., are the only legal parents of the child.

The Domestic Relations Law provision was adopted years ago in response to the growing practice of donor insemination, for the purpose of assuring that when a married different-sex couple has a child using donated sperm, there will be no question that the mother’s husband is the parent of the child, who will be considered the legitimate offspring of their marriage. It provides that when the procedure is done by “a person duly authorized to practice medicine,” there is an “irrebuttable presumption of legitimacy” of the child, barring the sperm donor from any attempt to establish legal parentage or seek custody or visitation.

Unfortunately, the legislature has not revised the statute to reflect the existence of same-sex marriages, and many lesbian couples using donor insemination to conceive children don’t involve doctors in the procedure, which can be easily accomplished by the couple at home without professional assistance. In this case, Danielle and Joynell married in Connecticut in 2009 and used the Internet to find Joseph O., a sperm donor who was willing to agree in writing that he would have no parental rights or responsibilities.  They had a three-party written agreement to that effect.

The child was born in April 2012. According to the mothers, they had only sporadic contact with Joseph, who saw the child a few times each year since her birth, including some birthdays, but who was not treated as a father and not recognized as such by the child.  The two women were identified as the child’s parents on her birth certificate.

Claiming that his main purpose was to assure that he would have a continued right to visit with the child, Joseph filed suit in Orange County Family Court in September 2015, naming Danielle, the birth mother, as respondent. This lawsuit was dismissed on the ground that Joynelle should have been named as a “necessary” party, since she is also a legal parent of the child.  Joseph filed a new lawsuit in June 2016, naming both mothers as respondents, and seeking two things: legal visitation rights, and a declaration that he is the father of the child.  Joseph claimed that he had an established relationship with the child and that it would be in the child’s best interest for him to have visitation rights.

Danielle and Joynell moved to dismiss the case, claiming that there is a presumption of legitimacy of the child, both under New York common (non-statutory) law and under the Domestic Relations Law provision governing donor insemination. They also raise the argument of “equitable estoppel,” claiming that Joseph had no meaningful relationship with the child and, in any event, had waited too long to assert parental rights – more than three years since the child’s birth.

Family Court Judge Campbell appointed an attorney to represent the child’s interest, Kelley M. Enderley of Poughkeepsie, who sided with the mothers, affirming that “the child recognized only the respondents as her parents.” In an affidavit they filed in support of their motion to dismiss Joseph’s case, the mothers emphasized the limited contact they and their daughter had with Joseph, that he had seen the child only “sporadically,” and that the child did not recognize him as “anything other than an acquaintance of the family.”

Nonetheless, Judge Campbell denied their motion to dismiss, finding based on Joseph’s allegations of biological parenthood that the burden was on the mothers to show it was not in the child’s best interest to have a paternity test ordered to confirm that Joseph is her biological father or to have an “order of filiation” establishing his legal parental status. According to Judge Campbell, by allowing Joseph to have contact with the child over the time since her birth, the mothers had lost entitlement to the “presumption of legitimacy” of the child, and the question of equitable estoppel required a trial.

The Appellate Division found these rulings to be erroneous. Although the parties had not complied with the donor insemination statute, the court followed the earlier 3rd Department ruling holding that the statute was “not intended to be the exclusive means to establish the parentage of a child born through artificial insemination of a donor.”  More importantly, the court reaffirmed the emerging consensus among New York courts that married lesbian couples who have children through donor insemination are entitled to enjoy the presumption – codified elsewhere in the state’s Domestic Relations Law and in the Family Court Act – that the child is the legitimate child of the birth mother and her wife.

Although that presumption is not irrebuttable, an attempt by the sperm donor to rebut it may be blocked under the doctrine of equitable estoppel to “preserve that status of legitimacy for the child” under the circumstances presented in this case, in order to “protect a child’s established relationship with another who has assumed the parental role” – that is, Joynell, the wife of the child’s birth mother.

Here, all the facts came together to support dismissing Joseph’s case. He agreed when he donated his sperm that he would not seek any parental rights, he was not named on the birth certificate, and although he was certainly aware of the child’s birth, he did nothing to assert his legal claim for more than three years.  “During that time,” wrote the court, “the child has lived with and been cared for exclusively by the respondents, each of whom has developed a loving parental relationship with her.”

By contrast, although Joseph has had occasional contact, he can’t claim to have developed a parental relationship with the child, and he “acknowledges that he does not actually seek a parental role,” he is just interested in making sure that he has a legal right to continue seeing the child, in case her mothers decide to deny him access.

“Under the particular circumstances presented here,” wrote the court, “it would be unjust and inequitable to disrupt the child’s close parental relationship with each of the respondents and permit the petitioner to take a parental role when he has knowingly acquiesced in the development of a close relationship between the child and another parent figure.”

Thus, the Family Court should have granted the mothers’ motion to dismiss both of Joseph’s requests – for an order of filiation and for visitation rights – since “it has long been the rule in this State that, absent extraordinary circumstances, only parents have the right to seek custody or visitation of a minor child,” and Joseph is not a legal parent. This last quotation is from the state’s highest court, the Court of Appeals, in its important ruling, Brooke B. v. Elizabeth A.C.C., 28 N.Y.3d 1 (2016), recognizing the parental rights of same-sex couples.

The Appellate Division Justices on the panel that decided this case are Reinaldo E. Rivera, L. Priscilla Hall, Betsy Barros, and Valerie Brathwaite Nelson.

The mothers are represented by The Kurland Group (Yetta G. Kurland and Erica T. Kagan) and the LGBT Bar Association of Greater New York through its Legal Director, Brett Figlewski.  The American Academy of Assisted Reproductive Technology Attorneys filed an amicus brief written by attorneys from Seyfarth Shaw LLP and Rumbold & Seidelman LLP.  Joseph O. is represented by Paul N. Weber of Cornwall, New York.


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California Judge Issues Unprecedented Ruling in Favor of Baker Who Declined to Make Wedding Cake for Same-Sex Couple

Breaking a consensus among courts that has developed over the past several years that people with religious or moral objections to same-sex weddings are not entitled to exempt their business from selling goods or services for such events, Kern County (California) Superior Court Judge David Lampe ruled on February 5, 2018, in Department of Fair Employment and Housing v. Miller, BCV-17-102855, that Cathy Miller, owner of Cathy’s Creations, Inc., doing business as Tastries Bakery in Bakersfield, California, is entitled to a First Amendment exemption from complying with California’s law that bans sexual orientation discrimination by businesses.  Judge Lampe is the first to rule in favor of a business in such a case.

Miller refused to make a wedding cake for Eileen and Mireya Rodriguez-Del Rio, who came to her bakery in August 2017 to plan for a celebration to take place in October.  They had selected a design of a cake in the display case, but since their celebration would not be until October, the transaction would be for Miller to prepare a cake specifically for their event.  “The couple did not want or request any written words or messages on the cake,” wrote the judge in his opinion.  Nonetheless, Miller refused to make it because of her religious objections to same-sex marriage, and offered to refer them to another bakery in town that was happy to make wedding cakes for same-sex couples.

Eileen and Mireya filed an administrative complaint, charging Miller and her business with a violation of the Unruh Civil Rights Act, California’s law that prohibits discrimination by businesses.  The Department of Fair Employment and Housing, with is charged with enforcement of the law, filed suit against the bakery, asking the court to issue an injunction requiring that Miller’s business not refuse to make wedding cakes for same-sex couples.

Miller’s defense relied on two provisions of the First Amendment of the U.S. Constitution, one forbidding laws that abridge freedom of speech, and the other forbidding laws that prohibit the free exercise of religion.   Judge Lampe decided that this case could be resolved most easily by reference to the free speech provision, and did not render a ruling on whether the free exercise of religion clause would protect Miller in this case.

The judge accepted Miller “cake artist” argument, the same argument that Jack Phillips of Masterpiece Cakeshop in Colorado is making in his case pending before the U.S. Supreme Court.  Miller and Phillips argue that when they are contracting to produce a cake for a specific event, they are engaging in a creative effort that communicates a message of endorsement for that event.  Under this theory of symbolic speech, they argue, requiring them to make the cake when they do not approve of the event is compelling them to voice a particular message.

They rely on past decisions in which the Supreme Court has found that government officials had violated free speech rights by compelling people to voice particular messages with which they disagree, such as the famous “flag salute” cases first decided during World War II and most recently reiterated in  Wooley v. Maynard, 430 U.S. 705 (1977), in which the Court famously reversed direction on this issue, overruling its own prior precedent to find that the government cannot compel a student to recite the pledge of allegiance.  Although there are circumstances where the courts have held that government requirements did not impose a substantial burden on free speech, the compelled speech argument has taken on particular weight in several important LGBT-related rulings.

The Supreme Court unanimously ruled in Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995), for example, that Massachusetts civil rights authorities could not compel the organizers of the Boston St. Patrick’s Day Parade to include an LGBT rights contingent in the parade with a banner proclaiming their identity.  The court said this would unconstitutionally compel the parade organizers to include a message in their event that they did not want to include.  Similarly, although more controversially, the Court later ruled in Boy Scouts of America v. Dale, 530 US 640 (2000), that the BSA was not required to allow an openly gay man to service as an adult leader, because that would be compelling them to implicitly send a message of endorsement for homosexuality which they did not want to communicate to their members or the public.  Unlike the unanimous parade decision, however, the Court split 5-4 in the Boy Scouts case, with a minority rejecting the contention that the BSA’s free speech rights would be unconstitutionally burdened.

Despite these rulings, the Court concluded that Congress did not unconstitutionally burden the free speech rights of law schools when it required them to allow military recruiters equal access to their facilities, reasoning that the schools were free to communicate their disagreement with the anti-gay policies then followed by the Defense Department and that hosting the recruiters was not necessarily sending a message of agreement with their policies.  Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47 (2006).  And the Court concluded that a state university law school was not violating the free speech or free exercise rights of conservative Christian students when it required a Christian Legal Society chapter to allow gay students to be members if CLS wanted to be an officially recognized student organization.  Christian Legal Society v. Martinez, 130 S. Ct. 2971 (2010).

It is difficult to follow a consistent thread of reasoning through these cases, each of which presents a slightly different factual context, which is why there is some suspense about how the Supreme Court is going to decide the Masterpiece Cakeshop case.  So far, however, lower courts have been unanimous in ruling that bakers, florists, photographers, videographers, non-religious wedding venues are all required to comply with public accommodations laws (in states where they exist) and provide their services and goods to same-sex couples celebrating their unions.

Judge Lampe, the first to depart from this consensus, accepted Miller’s compelled speech argument.  “No public commentator in the marketplace of ideas may be forced by law to publish any opinion with which he disagrees in the name of equal access,” wrote the judge.  “No baker may place their wares in a public display case, open their shop, and then refuse to sell because of race, religion, gender, or gender identification.”

But, he wrote, this case is different. “The difference here is that the cake in question is not yet baked.  The State is not petitioning the court to order defendants to sell a cake.  The State asks this court to compel Miller to use her talents to design and create a cake she has not yet conceived with the knowledge that her work will be displayed in celebration of a marital union her religion forbids.  For this court to force such compliance would do violence to the essentials of Free Speech guaranteed under the First Amendment.”

Judge Lampe acknowledged that there was a clash of rights here, and no matter which way he ruled, somebody would feel insulted. “The court finds that any harm here is equal to either complainants or defendant Miller, one way or the other. If anything, the harm to Miller is the greater, because it carries significant economic consequences.  When one feels injured, insulted, or angered by the words or expressive conduct of others, the harm is many times self-inflicted.  The most effective Free Speech in the family of our nation is when we speak and listen with respect.  In any case, the court cannot guarantee that no one will be harmed when the law is enforced.  Quite the contrary, when the law is enforced, someone necessarily loses.  Nevertheless, the court’s duty is to the law.  Whenever anyone exercises the right of Free Speech, someone else may be angered or hurt.  This is the nature of a free society under our Constitution.”

The judge acknowledged that the case is more difficult if it is treated as a free exercise of religion case, because the Supreme Court has ruled that neutral state laws of general application do not include within them a constitutional exemption for religious dissenters. “Whether the application of the Unruh Act in these circumstances violates the Free Exercise clause is an open question,” he wrote, “and the court does not address it because the case is sufficiently resolved upon Free Speech grounds.”

Interestingly, the judge’s approach mirrors that of U.S. Solicitor General Noel Francisco in the Masterpiece Cakeshop case before the Supreme Court. In briefing and argument, the Solicitor General placed the government’s support for Jack Phillips’ right to refuse to make the wedding cake entirely on Free Speech grounds, and disclaimed taking any position on his right of free exercise of religion – despite the Trump Administration’s more general position, expressed in a “religious freedom” memorandum by Attorney General Jeff Sessions, that religious free exercise rights should be treated as superior to just about any other legal claim.

Perhaps Judge Lampe’s decision is truly an outlier in the ongoing controversies stemming from the Supreme Court’s ruling in 2015 that same-sex couples have a constitutional right to marry, but on the other hand it may be an accurate prediction of how the Supreme Court will deal with the issue, at least in cases where the goods or services at issue could be plausibly described in terms of expressive content.

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New York Appellate Division Revives Gay Police Officer’s Discrimination & Retaliation Case Against NYPD

While hesitant to accuse the New York City Police Department, New York City Law Department, and a Supreme Court Justice of bizarre thinking, that is the only conclusion we can draw from Harrington v. City of New York, 2018 WL 503144, 2018 N.Y. App. Div. LEXIS 392 (N.Y. App. Div., 1st Dept., Jan. 23, 2018), where a unanimous five-judge panel of the Manhattan-based Appellate Division, 1st Department, reversed a decision by Justice James E. d’Auguste from October 13, 2016, in which he reiterated a prior decision entered on November 12, 2015, to dismiss sexual orientation discrimination and retaliation claims by Michael Harrington, a former NYPD auxiliary police officer.

Harrington worked as an auxiliary police officer from 2002 until 2009, then resigned to take a police officer position in California. Evidently unhappy away from NYC, he sought to be reinstated as a police officer with NYPD in June 2009, passing a psychological exam. After his request for reinstatement was denied, he filed a new application, passing the written exam in 2010.  While his application was pending, he accepted law enforcement positions with sheriff’s departments in Arizona and Missouri, passing a psychological evaluation for both of those positions.  In September 2013, he began working as a corrections officer for the NYC Department of Correction, passing yet another psych evaluation, and he continues to serve in that position while pursuing his goal of joining the NYPD.

While employed as an auxiliary, he filed a sexual orientation discrimination complaint with the Department in 2007, which was eventually settled at the end of 2013 with a payment to him of $185,000. Assuming the City does not throw large sums of money at discrimination grievances if it believes there is no merit to their claims, one can reasonably infer that he had a decent case.  After he had signed the settlement agreement and waiver of claims on December 12, 2013, he was instructed to proceed with his then-pending 2010 application to join the NYPD, submitted to another psychological evaluation, and waited.

He was told that his application was “being held on a psychological review” which lasted more than a year. Finally, he was told that the NYPD found him not psychologically fit to be a police officer, based on the police psychologist’s conclusion that he “relied chiefly on litigation to resolve issues,” citing his 2007 discrimination claim as evidence of his “poor stress tolerance.”  Evidently, in the opinion of this psychologist, implicitly adopted by the Department, police officers who complain about discrimination against them have “poor stress tolerance” and if they pursue their claims in a legal forum, that indicates psychological unfitness to be a cop.  Stated otherwise, the unwritten policy of the NYPD is that police officers who encounter discrimination in the Department should just suck it up, and those who don’t are unfit for the force.  Wow!

Harrington got an independent psychologist to do an evaluation, and this produced the same result as the numerous other evaluations he has gone through, finding him fit to be a police officer. He also found evidence that the Department’s psychologist had omitted from his report the data showing that Harrington “met or exceeded requirements in every area of the ‘Job Suitability Snapshot,’” and omitted the psychologist’s own notes showing that Harrington’s “thought processes were ‘coherent’” and within normal limits.  His internal appeal of this rejection of his application was turned down and he filed this lawsuit, seeking damages and an order that the NYPD hire him.

Justice d’Auguste granted a motion to dismiss Harrington’s sexual orientation discrimination and retaliation claims. Reversing the trial judge, the Appellate Division panel (Justices Gische, Webber, Oing, Singh, and Moulton) concluded that his factual allegations were, rather obviously, sufficient to state claims for discrimination and retaliation.  After reciting the factual allegations now on the record, the court said that “the foregoing, taken together, and affording plaintiff the benefit of every favorable inference, establishes prima facie that defendants discriminated against plaintiff on account of his sexual orientation in finding him psychologically unfit to serve.”

It was also clear that the basis for the NYPD’s action was sufficient to ground a retaliation claim. “Plaintiff alleges that in retaliation for his having commenced the 2007 action against defendants, they placed a psychological hold on his present application for employment in 2014, and ultimately found him psychologically unfit for the position.”  After finding that the settlement agreement he had signed in 2013 did not bar the present action, because the release he signed applied only to claims arising up to that time, the court stated the obvious: “In finding plaintiff psychologically unfit, defendants’ police psychologist relied on plaintiff’s 2007 action against defendants.  Specifically, the police psychologist’s report stated that plaintiff had ‘poor stress tolerance’ and relied ‘chiefly on litigation to resolve issues.’  The 2007 litigation serving as the psychological disqualifier is sufficient to plead the causal connection between the protected activity and the adverse action in this case.”

The court rejected the defendants’ disingenuous argument that the 2007 action was “not sufficiently temporally proximate to the alleged adverse action to support the causal connection” for a retaliation claim. “Plaintiffs’ allegations are sufficient to permit the inference that the reason plaintiff was found psychologically unfit to serve was because he brought the 2007 action against defendants.  This, along with the extensive history of having been found psychologically fit to serve as a police officer and in similar positions, supports an inference that the disqualification was retaliation for bringing the 2007 action.”  Time for a new settlement offer from the City Law Department?

Harrington is represented by Naved Amed of Amed Marzano & Sediva PLLC.

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Divided Mississippi Supreme Court Refuses to Relieve Closeted Gay Doctor from One-Side Divorce Settlement Agreement

Voting 7-2, the Mississippi Supreme Court refused to relieve a closeted gay doctor, who is also HIV-positive, from the terms of a very one-sided divorce settlement agreement which he had signed with his ex-wife more than two years prior to filing an actionto set the agreement aside or modify it as unconscionable and formed under duress. Under the agreement, which was approved by the Hinds County Chancery Court, all but $5,000 a month of his income goes towards support of their one child and alimony for his wife, and obligates him to assume all the expenses of raising the child through college and potential marriage, among other things.  Smith v. Doe, 2018 Miss. LEXIS 39, 2018 WL 549404 (Jan. 25, 2018).  For confidentiality purposes, the court used pseudonyms to refer to the parties, using the names Carl Smith and Lisa Doe.  Both of them are doctors.  Justice James D. Maxwell, II, wrote for the court.  Justices Leslie D. King and James W. Kitchens each wrote dissenting opinions, and Justice Kitchens also joined Justice King’s opinion.

The divorce occurred because Lisa found out that Carl had been engaging in extramarital affairs with known and anonymous same-sex partners. He had lied to her about how he contracted HIV, and about allegations concerning his alleged pedophilic activities (trading nude pictures of underage boys on-line).  Lisa, represented by two lawyers, proposed an extremely one-sided settlement agreement, which included a provision in which Carl, who was not represented by counsel at Lisa’s insistence, acknowledged that the agreement was one that a court would not normally impose in a contested case.  The provision stated: “Nevertheless, Husband is both willing to limit and restrict his rights and expand his obligations regarding child support, alimony, and division of marital property and debt as contained in this agreement.  These limitations and restrictions of rights and expansion of obligations are based, in part, by both Husband and Wife’s mutual understanding of the unique difficulties in which Husband’s behavior has placed the family unit.”  The agreement obligated Carl to pay over about 75% of his income to Lisa on a monthly basis, and although it stated that Carl had been encouraged and free to seek legal advice concerning the agreement, he testified that in fact Lisa threatened to go public with all the detrimental information he uncovered if he hired a lawyer.  Carl testified that he had not seen the agreement until it was presented to him for signature, with no opportunity to review it or seek advice about it.

Carl made all payments for more than two and a half years, but then filed a complaint to set aside, or alternatively to modify, the agreement. He argued coercion, duress, and unconscionability.  Wrote Justice Maxwell, “He suggested his wife had strong-armed him, threatening to disclose his affairs, disease, and alleged malfeasance if he did not sign the agreement.  And he signed the agreement under duress, facing ‘financial ruin, humiliation, loss of his medical license, criminal prosecution, and loss of contact’ with his daughter.  Carl also claims Lisa would not permit him to have an attorney review the agreement’s terms.”

Lisa, while “admitting that she was angry and behaved harshly toward Carl after she had unearthed much of his hidden second life and illicit activities,” argued that “his coercion and duress allegations are not only false but are undermined by his express acknowledgements in the property-settlement agreement.”

The chancellor granted Carl a hearing, but concluded after five days of testimony that a statutory limitation period for contesting a divorce settlement agreement approved by the chancellor barred Carl’s complaint. Rule 60(b)(1) of the state’s Rules of Civil Procedure requires an action to set aside an agreement on grounds of the other party’s misconduct be filed within six months, but he waited more than two years.  Although there are equitable grounds to grant relief from that time limit, the chancellor found that they do not apply in this case, and the Supreme Court backed up the chancellor in the finding that there was “no evidence of good cause in Carl’s delay” and that granting relief “at this late date would cause actual prejudice to Lisa.”  The chancellor had also, alternatively, rejected Carl’s contention that the agreement was unconscionable, noting that both of the parties are educated, licensed professionals and that “Carl was not overly browbeaten or otherwise coerced into signing a procedurally or substantively unconscionable agreement.”  Carl’s complaint that after meeting all monthly financial requirements under the agreement he was left to live on only $5,000.00 a month, was not calculated to carry much weight in Mississippi.  (An on-line check shows that based on 2016 data, an annual income of $60,000 both exceeds the national median family income and far, far, far exceeds the annual  median family income in Mississippi, which is one of the poorest states with one of the lowest costs of living.  No crocodile tears from the majority of the court for the philandering Carl on this account.

Wrote Justice Maxwell, “The chancellor essentially found Carl knew exactly what he was doing and exactly what he was obligating himself to do when he signed the settlement agreement. Indeed, according to the agreement, Carl accepted its strict terms based on ‘the unique difficulties in which his behavior has placed the family unit.’  The chancellor recognized this and noted that ‘Carl was in a place of self-loathing and felt extreme guilt for his choices that had caused the destruction of his marriage and family.’  That his extramarital activities and devious behavior gave Lisa the upper hand in negotiating a favorable settlement did not negate that Carl ‘freely and willingly’ agreed to the settlement’s terms.  Nor did Carl’s ‘self-imposed guilt’ and Lisa’s ‘obvious hostility,’ in the chancellor’s view, amount to an unconscionable disparity of bargaining power.  Based on his advanced education, Carl was certainly aware of the finality of signed legal contracts and judgments.  And the chancellor’s finding and the agreements express acknowledgements undermine Carl’s newly minted procedural unconscionability claim.”

As to the claim of substantive unconscionability, the court noted, as mentioned above, that Carl testified that he is “very stable” financially and can afford to make the payments. The chancellor did not find that any changed circumstances of the parties would themselves justify modifying the terms.  “Here,” wrote Maxwell, “the chancellor ‘expressly determined that no fraud or overreaching existed in this matter.’  Thus, he deemed ‘all provisions of the agreements regarding fixed alimony or a division of property’ unmodifiable.  We there find,” continued Maxwell, “even if Carl’s motion was not snagged on the chancellor’s Rule 60(b)(1) and Rule 60(b)(6) timeliness findings, the chancellor did not abuse his discretion in alternatively rejecting the merits of the unconscionability claims.”

Concluding, Maxwell noted that in light of the evidence presented, “this Court has significant public health and safety concerns. We therefore remand the chancellor’s order sealing the court file for the trial court to conduct the balancing test set out in Estate of Cole v. Ferrell, 163 So. 3d 921 (Miss. 2012), and determine whether the court file should remain under seal.”  In Estate of Cole, the count observed that confidentiality of settlement agreements by consent of the parties should generally be respected as it effectuates settlement of disputes, but that if there is an overriding public interest, a court can unseal previously sealed court records.

Justice King’s dissent is long, detailed, and vociferous, criticizing the majority opinion on just about every point, and sets out in detail the terms of the agreement and the enormous financial obligations it imposes on Carl, some of which are indeterminate and likely to expand substantially in the future. For example, Carl agrees that when the child is old enough to drive, he will buy her a car with no cap on the price or input on his part to its selection.  He is also obligated for all of the child’s college expenses, including any post-graduate or professional degrees, “to be selected by Carl, Lisa, and the child, by majority rule.”  He was required to make monthly deposits into a designated college fund for the child, provide all insurance and cover all deductibles, maintain a life insurance policy on the child with Lisa as trustee until the child completes her education, making Lisa the primary beneficiary of all his pension plans and retirement savings with the child as secondary beneficiary, bear full liability for all his own debts and for all Lisa’s medical school debts. . .  It goes on and on, including that, contrary to usual custom, his alimony obligation would continue even if Lisa remarried and would be an asset of her estate if she died before he did.  She got the marital house and almost everything in it, and sole custody of the child; if Lisa died before the child’s majority, custody would go to Lisa’s parents.  “The contract provisions wholly deprive Carl of seeing his daughter but require him to almost completely financially support his daughter,” wrote King.  In other words, Lisa really took Carl to the cleaners, getting him to agree to things that went far beyond what a court was likely to order in a litigated divorce case.

Justice King commented, “The circumstances of this case by definition are extraordinary and compelling. Carl clearly has demonstrated good cause for not filing his motion sooner.  At the time of his divorce, Carl had HIV, was homosexual without the knowledge of his family, had not disclosed his HIV-positive status to the state [medical] licensing board, had engaged in homosexual extramarital affairs, and was in a precarious situation of possibly losing his means to support himself and also losing complete contact with his child.  Given the totality of the circumstances in this case, Carl’s hesitation to contest the property-settlement agreement was reasonable and was for good cause.  Thus, I cannot agree with the majority’s conclusion that the chancellor had not erred in finding that Carl’s filing was untimely.  I also cannot agree that Carl’s motion lacked merit.”

Justice King noted facts conveniently left out of Justice Maxwell’s opinion for the court, bearing on the unconscionability issue beyond just the content of the agreement. “Even though Carl admitted feeling guilty for his actions,” wrote King, “I cannot find that mere guilt coerced Carl into signing an agreement that gave complete custody and decision-making authority over Carl’s minor child to Lisa, along with extraordinary and oppressive financial obligations.  Lisa had access to Carl’s email accounts and forwarded Carl emails that were private as well as potentially detrimental to his future medical career.  Carl alleged that Lisa had threatened to reveal his homosexuality and had threatened not only criminal prosecution, but medical licensure revocation or suspension, disclosure of his HIV diagnosis, embarrassment, and humiliation.  Carl testified that Lisa had threatened exposure if he hired an attorney to represent him in the divorce or told any family members or friends about what was occurring.  Yet Lisa had two attorneys and drafted the agreement to provide Carl only with the minimal amount he would need to live on per month.  He had not been able to see or read the contract until minutes immediately before he signed it.  In addition, Carl stated that Lisa had threatened exposure if he rented an apartment or hotel room before the divorce was finalized.  Consequently, Carl had lived in his car for several months.  Carl had no bargaining power, had a lack of opportunity to study the contract, and had no input in drafting the agreement.  Accordingly, I would find that the contract, too, was procedurally unconscionable.”

Chiding his colleagues in the majority, King wrote: “The majority makes much of the clearness of the agreement’s terms. With respect, I believe that the majority downplays the totality of Carl’s position.  Lisa did not have the upper hand; she had the only hand.”  He also objected to the court’s decision to remand to the chancellor on the issue of sealing the record.  “If this Court has public health and safety concerns,” he wrote, “I believe the appropriate method to allay those concerns would be to report to the relevant governmental authority.  Those relevant authorities must pursue the matter as they see fit.  The trial court in this case agreed with the parties that the record should be sealed.  Because unsealing the record would do little to remedy any public health and safety concerns, I fail to see the public benefit gained by unsealing the record.”

In a separate brief dissent, Justice Kitchens quotes from some of the incriminating emails, and implies that the majority is biased against Carl because he is gay. Or at least, that seems to be the import of his closing remarks: “Carl’s position is further supported by the majority’s use of the word ‘salacious’ to describe his extramarital affairs. The word salacious connotes indecency, obscenity, or lewdness.  I dare say that the majority would not have chosen that particular term had Carl chosen to engage in heterosexual affairs.  A search of the term ‘salacious’ in opinions reveals the term’s use in criminal cases involving pedophilia,” citing Shaffer v. State, 72 So. 3d 1090, 1098 (Miss. Ct. App. 2010); Wade v. State, 583 So. 2d 965, 968 (Miss. 1991).  Notably, there are no allegations that Carl actually engaged in sexual conduct with minors, just that some of the emails he exchanged with other men referred to the subject

“Carl” is represented on appeal by William Abram Orlansky and Susan Latham Steffey.

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