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Texas Appeals Panel Denies Transgender Man Standing to Bring Paternity Action Concerning Children He Was Parenting


A three-judge panel of the Court of Appeals of Texas in San Antonio issued a new opinion on January 27, reaffirming a prior ruling issued on August 12 of last year, that a transgender man who had been parenting children adopted by his long-time former female partner lacked standing to seek custody and visitation rights because he didn’t assert such a claim shortly after the couple broke up. At the same time, the full bench of the Court of Appeals denied a petition for en banc review of the prior ruling, which conditionally granted a writ of mandamus sought by the children’s mother challenging the trial court’s jurisdiction over the case.  In re Sandoval, 2016 WL 353010, 2016 Tex. App. LEXIS 754, 756, 758, 759.  Justice Jason Pulliam wrote the new decision for the unanimous three-judge panel.  Justice Patricia O. Alvarez, who was not on the panel, wrote a concurring opinion on the vote to deny en banc reconsideration.  Justice Luz Elena D. Chapa, also not on the panel, wrote a dissent from the denial of en banc reconsideration, claiming that it was procedurally improper for the panel to have granted the writ.  Justice Rebecca C. Martinez, also not on the panel, wrote a dissent as well, going further to disagree with the panel’s conclusion on the merits, arguing that the trial court correctly allowed the transgender man to maintain his suit.

At the heart of the case is the question whether a transgender man can bring a paternity action under the Texas Family Code, or whether standing to bring such actions is limited to sperm-producing men who could conceivably be the biological father of the children at issue.

Born a genetic female, Dino Villarreal “self-identified as a male for all of his adult life,” wrote Justice Pulliam in the panel opinion. “Dino moved in with [Sandra] Sandoval in 1994 and lived with her, and later the two children [who Sandoval had adopted in 2002 and 2004], until January 2011 when Dino and Sandoval separated.”  Dino continued to have contact with the children until sometime in 2013, after which Sandoval refused further contact.  Dino filed a petition to adjudicate parentage in December 2013, almost three years after the parties had split up.  Sandoval objected to Dino’s standing, and the trial court agreed with her, dismissing the petition, a ruling that was affirmed by the Court of Appeals on March 11, 2015.  Sandoval successfully argued that when the petition was filed Dino was legally a woman and thus did not fit into any of the categories under the Texas Family Code conferring standing to initiate a parentage adjudication.

However, on January 3, 2014, shortly after having filed that petition, Dino had instituted a separate action, eventually obtaining an Order Granting Change of Identity, which “acknowledged his name change from Diana to Dino and included the following finding: ‘3. Petitioner’s sex is male.’ Following the trial court’s findings, the order concluded, ‘IT IS ORDERED that Petitioner’s identity is changed from female to male.”  This was an unopposed action, brought under a 2009 statute that authorized Texas courts to make gender declarations in cases of transition.

Dino then filed a second petition to adjudicate parentage under Texas Family Code Ann. Sec. 102.003(a)(8), which authorizes a suit by “a man alleging himself to be the father of the minor children,” asserting that he was now filing as a “man” and thus had standing. He sought temporary orders appointing him joint managing conservator of the two minor children and equal periods of possession and access.  Sandoval filed a new plea challenging the court’s jurisdiction.  This time, the trial court sided with Dino, finding that because he was now legally “male,” he could proceed under the provision authorizing such an action by “a man alleging himself to be the father of the minor children.”  The trial court issued a temporary order giving Dino visitation rights with the children while the case was pending, while Sandoval petitioned the court of appeals for a writ of mandamus, challenging the jurisdictional order.

Under normal rules of Texas procedure such a writ would be out of order, since the trial court’s order was not a final judgment in the case and Sandoval could obtain relief by litigating the case to a final order and then appealing in the normal course if Dino had won. The panel decided, however, that this was not an ordinary case, quoting a 2014 ruling by the Corpus Christi branch of the Court of Appeals, In re First Mercury Ins. Co., 437 S.W. 3d 34, recognizing “several exceptions to this general prohibition against mandamus review of a trial court’s order denying a plea to the jurisdiction.  In short, a remedy by appeal may be an inadequate remedy when there are extraordinary circumstances present.”  “We conclude,” wrote Justice Pulliam, “that eventual review of the jurisdictional question on appeal from a final judgment would be inadequate in this instance.  Mandamus review is therefore appropriate.”

Referring to the statutory scheme for litigation concerning parent-child relationships, Pulliam observed that “standing to file suit under the Texas Family Code is limited. A suit to establish a parent-child relationship may only be brought by certain individuals falling within identified categories,” and that it was a question of “straight statutory construction of the relevant statute” to decide whether a petitioner had standing.  Dino was relying on his status as a “man alleging himself to be the father of a child filing in according with Chapter 160.”  Chapter 160 says that such a suit can be brought by “a man whose paternity of the child is to be adjudicated.”  Texas courts have stated that standing must exist at the time the suit is filed and be maintained throughout the suit.  This was the ground on which the court had affirmed dismissal of Dino’s first petition, which was filed before he obtained the gender declaration in the separate proceeding.

This time, Dino argued that he got the declaration that he is “male” before filing this second case, so he should be home free on standing, but the court disagreed.  Justice Pulliam asserted that the 2009 statute authorizing the gender declaration was enacted to deal with the problem of marriage, in response to prior litigation where Texas courts had refused to recognize change of gender in determining who could marry whom.  As far as this panel of the court is concerned, Dino’s gender change rendered him “male” for purposes of the state’s marriage law as it then was, but not for purposes of the Family Code provisions on standing to adjudicate parentage.  “While the clear language of the Family Code recognizes such an order as sufficient to provide proof of Dino’s identity and age for purpose of obtaining a marriage license,” wrote Pulliam, “we conclude that it is not sufficient to adjudicate parentage under subsection 160.602(a)(3). . .  If all that was required for standing was to be a man, then any man could maintain a suit to adjudicate parentage to any child.  We do not believe that to be what the Texas Legislature intended.”

“In this case,” wrote Pulliam, “Sandoval’s children are adopted and there is no contention that Dino is the biological father. A man alleging ‘paternity’ is a man asserting standing as the biological father of the subject children.”  He pointed out that relevant Texas Family Code provisions define “paternity index” and “probability of paternity” “in relation to the determination the likelihood that a man is the biological father of a child.”  Even had Dino been identified male at birth and capable of impregnating a woman with sperm through intercourse or donation, he could not have made this “parentage” claim regarding the children at issue in this case whose procreation was accomplished by earlier biological parents prior to their adoption by his then-partner, Sandoval.  “The only basis under which Dino attempts to assert that he has statutory standing as ‘a man whose paternity of the child is to be adjudicated,’ is that he acted as a parent to the children and provided actual daily care for them from the time of their adoption until his relationship with Sandoval ended in 2011.  Dino’s status as a person with actual care, control and possession of the children may have conferred standing to file suit had he done so within ninety days of the date on which his actual care, control and possession of the children terminated” under Tex. Fam. Code Ann. Sec. 102.003(a)(9), but he waited much too long to avail himself of that provision.  In other words, the court was unwilling to let Dino use Section 160 as a mechanism for giving any legal effect to a claim to de facto or equitable parental status.   Pulliam asserted that since Texas had adopted a very specific statutory scheme governing standing, the court was limited to construing and applying those provisions.

The Court of Appeals panel conditionally granted the petition for writ of mandamus and directed the trial court to set aside its April 17, 2015, order that had denied Sandoval’s plea to the jurisdiction, so Dino’s petition was to be dismissed for lack of standing. An actual writ will be issued to the trial court if it refuses to comply.  Presumably a dismissal would set up the case for Dino to file an appeal, which he would undoubtedly lose in the court of appeals, and he could then try to bring an appeal to the Texas Supreme Court.  But this would undoubtedly stretch out for years during which he will be denied contact with the children, perhaps so long that they would no longer be minors once the case is concluded.

As noted above, while reaffirming its August 12 ruling, the court also denied a motion filed by Dino on August 26 for en banc reconsideration, which drew three separate opinions from judges who were not on the three-judge panel.

Justice Alvarez concurred, expanding on the court’s view of the limited effect of the separate court order declaring Dino to be “male.” She pointed out that that court order “does not mention the Texas Family Code or address its effect under the Texas Family Code,” which “defines ‘man’ as ‘a male individual of any age.’  The Texas Family Code does not, however, define the term ‘male,’” she continued, observing that when the legislature does not define a word, the court will apply its “ordinary meaning,” for which it usually looks to a dictionary definition.  Reverting to the early decision by the Court of Appeals that had affirmed dismissal of Dino’s first petition, “we cited Webster’s Dictionary which defines ‘male’ as ‘an individual that produces small usually motile gametes … which fertilize the eggs of a female.’”  Justice Alvarez asserted that this definition “has not changed and is controlling in this mandamus.  Therefore, regardless of his possession of a court order changing his identity, Villarreal still does not meet the statutory definition of ‘man’ under the Texas Family Code.”

The judge also pointed out that Dino could have brought an action, as the panel noted, had he moved quickly after the parties split up. “By waiting until November of 2013 to file, Villarreal missed his opportunity because he could no longer meet the statutory requirement of having had care, control, and custody of the children for at least six months ending not more than 90 days before he filed his petition.”  This argument is frustrating to read, since it seems clear that Dino would have perceived no need to file suit until his contact with the children was cut off by Sandoval in 2013, shortly before he filed his first petition.

Alvarez characterized the standing ruling in this case as “heart-wrenching and sad,” but said that “an appellate court is bound by the law and not emotions,” so she agreed with the decision to deny en banc reconsideration of the panel decision.

Justice Chapa dissented from the voting denying en banc reconsideration. She focused her argument on what she saw as a conflict between this ruling and prior rulings of the Texas courts about when it was appropriate to allow a party who loses a plea to jurisdiction to obtain interlocutory review of that decision.  She argued that the cases relied upon by the panel majority to grant mandamus review were all distinguishable.  “Absent a decision from a higher court or this court sitting en banc that is on point and contrary to the prior panel decision or an intervening and material change in the statutory law, a panel should not ignore the prior holding of another panel of this court,” she argued.  Thus, the panel should have denied the petition for mandamus review.  She also rejected the panel’s conclusion that this case presented “extraordinary circumstances,” pointing out that there was lots of child custody litigation in the Texas courts, and this ruling could open the floodgates for mandamus petitions every time a trial court rejected a respondent’s claim that the petitioner lacked standing to seek custody.

Justice Martinez was the sole dissenter on the merits, writing a sophisticated argument engaging concepts of sex and gender and invoking Obergefell along the way.

She pointed out that as far back as 1985 Texas had enacted a statute governing statutory interpretation that required gender neutrality in construing statutes. “The Legislature’s clear intent to apply its provisions gender-neutrally is the context within which our court should construe ‘each rule adopted under a code,’” she wrote, quoting from the statute.  “Further, the Texas Legislature had also previously adopted an understanding of gender that is broader than one’s anatomy at birth by granting legal recognition as a ‘man’ to a person born anatomically female.  A court of law ordered legal recognition to Dino’s identity as a man regardless of his anatomical sex, without exclusion to its applicability.  That he was born female is now altogether secondary.  A majority of this court determines this case by addressing and viewing gender as inextricable from anatomy, by disregarding Dino’s legally-recognized gender-identity as male, and by forcing a narrow definition of being a ‘man’ without specific and evident direction from the Legislature.  Dino asked for equal dignity in the eyes of the law, and both the Constitution and the trial court granted him that right.  There is no reasonable explanation to deny his identity under every provision of the law and, in particular, the Family Code.  The statute does not impose biological sex as the fixed marker of gender identity, nor should it be interpreted to use it as a mechanism for discrimination.  That Dino lacks standing stems solely from the fact that he is transgender.”  The reference to “equal dignity,” or course, is to the term used by Supreme Court Justice Anthony Kennedy in his concluding remarks in Obergefell, where he held that the states had unconstitutionally denied “equal dignity” to same-sex couples by refusing to allow them to marry or to recognize their marriages.

Martinez pointed out that the U.S. Supreme Court’s decisions in Windsor and Obergefell concerned, importantly, the harm to children when their parents’ relationships were not recognized.  “The Supreme Court saw no reasonable explanation for that.  This should suggest to us that the Court’s analysis would extend to cases not simply involving marriage, but also to eligibility for adoption and custody.  For our en banc court to read the statute to now encompass marriage and not standing to bring suit to adjudicate parentage is thus problematic.” She supplemented this argument with reference to other streams of fundamental rights doctrine and standing doctrine.

“There is no prohibition against applying Dino’s legal identity as male to every other provision of the law, and this court is without license to limit the consideration of one’s gender identity exclusively for purposes of marriage,” she wrote. “This court cannot create a separate entrance to the courthouse for Dino, nor close the door to him as I believe the court’s opinion does.  It disappoints me that we would sanction treating an individual differently than how the law allows, and I therefore encourage further review of this decision.  Dino is a male as a matter of law.  Whether he can meet the burden to prove his allegation of paternity which is to be adjudicated is not yet before us to review.”

Unfortunately, Justice Martinez’s lone dissent is a single voice in the wilderness on the Texas Court of Appeals. And the notion that a “man” or a “male” for purposes of Texas law (other than marriage) is limited to individuals who can produce sperm that are capable of biological procreation seems absurd.  Would this mean that after a vasectomy a person is no long a “man” for purposes of the Texas Family Code or any other Texas statute?  What about a person born male who suffers an accident or medical complication prior to puberty and thus never attains the capacity to generate motile sperm?  Not a “man”???  Furthermore, after Obergefell, the “exclusive purpose” that the court of appeals panel finds for the statute on declaration of gender has been rendered nugatory, since gender identification is no longer relevant to the right to marry under the 14th Amendment.  Does this mean that the Texas statute now has no purpose, since it doesn’t matter whether one is legally male or female in applying for a marriage license?  Or, as Justice Martinez argues, does the gender identity statute remain significant for all those instances in Texas law apart from the right to marry where gender is relevant to a statutory right, privilege or benefit?  The court’s ruling may have many ramifications that it failed to consider.

A news article dated January 21, 2015 in had an interview with Dino, indicating he was represented in the litigation by Deanna L. Whitley, who opined that the argument before the court of appeals panel that had then recently been held seemed to have gone well.  They must have been quite disappointed by the January 27 ruling.

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Compassionate Use Act and Disability Discrimination Laws Do Not Shield HIV-Positive Marijuana User from Discharge

Judge William P. Johnson of the U.S. District Court in New Mexico ruled on January 7 that a man living with HIV who is using medical marijuana under New Mexico’s Compassionate Use Statute could not contest his discharge under his employer’s drug use policy, finding that the employer was not required to accommodate the man’s disability by waiving its requirement that its employees refrain from using marijuana. Garcia v. Tractor Supply Company, 2016 WL 93717 (D. New Mex.).

The plaintiff, Rojerio Garcia, alleges that his physician recommended use of medical marijuana to deal with some of the effects of his HIV infection.  He obtained it by enrolling in the state’s Medical Cannabis Project operated by the New Mexico Health Department under authority of the state’s Compassionate Use Act (CUA). The Health Department determined that Garcia met all statutory and regulatory criteria for participation.

With his symptoms under control, he applied for a management level job for which he was qualified with Tractor Supply Company, a national employer doing business in 49 states.  During his interview, he told the hiring manager that he was HIV positive and was enrolled in the New Mexico Medical Cannabis Program.  He was hired and directed to report to the company’s testing facility for drug testing as the company required for all new hires.  Garcia tested positive for having used marijuana, of course.  He was then discharged under the company’s zero-tolerance policy for drug use.

Garcia complained to the New Mexico Human Rights Division alleging disability discrimination, arguing that the employer was required to accommodate his disability (HIV infection) by allowing him to use medical marijuana under the state’s program. The Division found no probable cause to believe its anti-discrimination statute was violated.

Having exhausted administrative remedies, Garcia filed suit in New Mexico District Court in Santa Fe, claiming he was dismissed because of his “serious medical condition” (HIV infection), which he claimed was unlawful because he was using medical marijuana to deal with his HIV symptoms upon his physician’s recommendation under a state program.  The employer removed the case to federal court, arguing that the federal Controlled Substance Act (CSA), which outlaws marijuana use, would preempt Garcia’s state law claim, and that the New Mexico anti-discrimination law did not require the company to employ marijuana users.  Judge Johnson’s opinion does not specify whether the basis for federal jurisdiction is diversity (Tractor Supply being incorporated in another state) or federal question (the federal preemption argument).

The judge divided his analysis into two parts, the first dealing with the confluence of the state’s Human Rights Act and the Compassionate Use Act, the second with the federal preemption argument.

The court sided with Tractor Supply, which argued that it did not discharge Garcia because of a disability, but rather because of his use of marijuana in violation of the company’s drug policy. Tractor Supply argued that the CUA does not require it to forego applying its drug use policy to employees in New Mexico.  The court agreed with this argument, finding that although the CUA authorized the state’s health department to set up the Medical Cannabis program and shielded those enrolled in the program from any state law penalties for using cannabis obtained through the program, the law had no effect on the employer-employee relationship whatsoever.

“Here, Mr. Garcia was not terminated because of or on the basis of his serious medical condition,” wrote the judge. “Testing positive for marijuana was not because of Mr. Garcia’s serious medical condition (HIV/AIDS), nor could testing positive for marijuana be seen as conduct that resulted from his serious medical condition.  Using marijuana is not a manifestation of HIV/AIDS.”

Garcia had argued that because the U.S. Department of Justice was refraining from prosecuting individuals under the CSA when they obtained medical marijuana through a state program such as New Mexico’s, the court should, in effect, find that their use of marijuana could not lawfully be the basis for their discharge, but the court wasn’t buying this argument either.  Judge Johnson agreed with the employer that “reliance on the enforcement policy of the United States Attorney General is not law, and instead, is merely an ephemeral policy that may change under a different President or different Attorney General.”  The court wasn’t going to tell a national employer operating in 49 states that it would have to modify its company-wide drug policies to take account of compassionate use laws in a handful of states.

“In sum,” wrote Johnson, “the Court finds that the CUA combined with the New Mexico Human Rights Act does not provide a cause of action for Mr. Garcia as medical marijuana is not an accommodation that must be provided for by the employer.” Even though New Mexico courts had found that under certain circumstances the state’s Workers Compensation program was required to pay for medical marijuana, “the Court finds a fundamental difference between requiring compensation for medical treatment and affirmatively requiring an employer to accommodate an employee’s use of a drug that is still illegal under federal law.”

Turning to the federal preemption argument, Johnson rest his ruling on a distinction between federal and state laws and how they function regarding medical marijuana. The federal law makes use illegal, but the DOJ has exercised discretion not to prosecute.  The state law, on the other hand, provides immunity from state prosecution only.  Johnson looked to a ruling on this issue by the Oregon Supreme Court, in which a concurring judge stated “the fact that the state may exempt medical marijuana users from the reach of the state criminal law does not mean that the state can affirmatively require employers to accommodate what federal law specifically prohibits.”

“State medical marijuana laws that provide limited state-law immunity may not conflict with the CSA,” wrote Judge Johnson. “But here, Mr. Garcia does not merely seek state-law immunity for his marijuana use.  Rather, he seeks the state to affirmatively require Tractor Supply to accommodate his marijuana use.  Thus, the Court finds the Oregon cases closer to the facts of this case and more persuasive. To affirmatively require Tractor Supply to accommodate Mr. Garcia’s illegal drug use would mandate Tractor Supply to permit the very conduct the CSA proscribes.”

In general, states have not moved to protect medical marijuana users from employment discrimination and this ruling from a New Mexico federal district court is consistent with the trend. The bottom line, it appears, is that employers operating in New Mexico or other states that have decided as a matter of state policy to allow compassionate use of marijuana by people whose medical conditions would justify it, are not required to accommodate such use, even if the medical condition that justifies the use, such as HIV infection, is considered a disability under the state’s anti-discrimination law.

Garcia is represented by E. Justin Pennington of Albuquerque. The company’s lawyers include Jessica R. Terrazas of Albuquerque and Michael W. Fox of Austin, Texas, both with firms in those cities.

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N.Y. Appellate Division Finds Wedding Venue Unlawfully Excluded Same-Sex Couple

A unanimous five-judge bench of the New York Appellate Division, 3rd Department, an intermediate appellate court that hears appeals from state agency rulings in Albany, upheld a decision by the State Division of Human Rights (SDHR) that Liberty Ridge Farm LLC, an upstate business corporation that rents facilities for wedding ceremonies and other life-cycle events, violated the state’s Human Rights Law (HLR) in 2012 when the business turned away a lesbian couple looking for a place to hold their wedding ceremony and reception.  The court’s January 14 opinion was written by Justice Karen K. Peters.  Gifford v. McCarthy, 2016 N.Y. App. Div. LEXIS 238, 2016 WL 155543.

In June 2011 New York enacted its Marriage Equality Law, which went into effect the next month, providing that same-sex couples could marry and that their marriages would be treated the same under all provisions of New York law as different-sex marriages.  In October of 2011, Melisa McCarthy and Jennifer McCarthy became engaged, intending to marry during 2012.  In the fall of 2012, Melisa phoned Cynthia Gifford, co-owner of Liberty Ridge Farm, to ask about holding the wedding there.

Ms. Gifford and her husband Robert co-own the farm in Rensselaer County.  It is a working farm, but parts of the premises are regularly rented to the public for use as a wedding venue.  According to Justice Peters’ opinion, “When providing a venue site, Liberty Ridge offers several wedding-related services, including transportation of guests within the premises, a light beverage station, decoration and set-up services, flower arrangements and event coordination,” and Ms. Gifford serves as the “event coordinator.”  Liberty Ridge also contracts with a caterer to provide food and beverages for wedding receptions and “employs catering, kitchen and wait staff for that purpose.”

When Gifford figured out from Melisa’s use of a female pronoun to refer to her fiancé that she was engaged to a woman, she immediately said that there was a “problem” because the farm did “not hold same-sex marriages.”  When Melisa asked why not, Gifford responded that “it’s a decision that my husband and I have made that that’s not what we wanted to have on the farm.”  The McCarthys followed up by filing a discrimination complaint with the State Division of Human Rights against the Giffords and their corporation, and found a different venue for their wedding.

The HRL provides that places of public accommodation may not discriminate in their provision of services because of the sexual orientation of those seeking the services.   The Giffords responded to the charge of sexual orientation discrimination that they did not believe their operation was a “public accommodation” subject to the law and that they were not discriminating based on sexual orientation, but rather exercising their 1st Amendment rights of freedom of speech, association and religious exercise. They did not inquire into the sexual orientation of potential customers, they insisted.

A public hearing before an Administrative Law Judge (ALJ) led to a decision that Liberty Ridge Farm LLC was a place of public accommodation and that the denial of the facility to a same-sex couple for use as a wedding venue violated the statute.  Constitutional questions were necessarily reserved to the subsequent court proceeding.  The ALJ recommended that each of the McCarthys receive $1,500 to compensate for the emotional distress they suffered as a result of being discriminated against, and that the Giffords have to pay a fine to the agency of $10,000.  The ALJ also recommended that the petitioners be directed to “cease and desist” from violating the statute, and establish anti-discrimination training and procedures at their business. The Commissioner of Human Rights accepted the ALJ’s findings and recommendations with minor changes, and the Giffords filed their appeal to the Appellate Division, raising both statutory and constitutional challenges to the decision.

This case presented questions of first impression for New York, but the issues are not new for anyone who has been paying attention to similar cases that have arisen in other states.  To date, appellate rulings in New Mexico, Oregon, Colorado and Washington state have all rejected the idea that businesses can deny their services or goods to same-sex couples in connection with commitment or wedding ceremonies when state or local laws forbid sexual orientation discrimination by businesses.  Justice Peters cited those cases – most prominently the Elane Photography case from New Mexico, which was denied review by the U.S. Supreme Court on the constitutional questions – in reaching a ruling consistent with the decisions from other states.

Turning first to the statutory claims, the court easily dispensed with the Giffords’ argument that their farm is not a “public accommodation” under the statute.  They are incorporated as a for-profit business and they advertise the availability of their facilities to members of the public, so their argument that they are just a privately-owned farm that rents out its barn occasionally for a wedding ceremony was not going to cut it under the broad interpretation of the statute that the state courts have followed.  “The fact that the wedding ceremonies occur on private property and pursuant to a written contract does not, as petitioners contend, remove Liberty Ridge’s facilities from the reach of the Human Rights Law,” wrote Justice Peters; “the critical factor is that the facilities are made available to the public at large.”

As to the argument that they were not discriminating based on sexual orientation, the court was equally dismissive.  “As the record clearly reflects,” wrote Justice Peters, “Cynthia Gifford displayed no unwillingness to allow the McCarthys to marry at the farm until Melisa McCarthy referred to her fiancé as a ‘she.’  Despite Cynthia Gifford’s clear rejection of the McCarthys as customers, petitioners nonetheless argue that, in advising Melisa McCarthy that ‘we do not hold same-sex marriages here at the farm,’ they did not deny services to the McCarthys ‘because of’ their sexual orientation.  Instead, petitioners claim that the decision to do so was based solely upon the Giffords’ religious beliefs regarding same-sex marriage.  Such attempts to distinguish between a protected status and conduct closely correlated with that status have been soundly rejected.”  Justice Peters cited the U.S. Supreme Court’s decision involving the refusal of University of California Hastings Law School to recognize a chapter of the Christian Legal Society, which excluded gay students from membership, in which Justice Ruth Bader Ginsburg expressly rejected this kind of status/conduct distinction, as well as the famous Bob Jones University case, which upheld a denial of tax exempt status to the school because of its policy forbidding interracial dating by students.

The court found that the “act of entering into a same-sex marriage is ‘conduct that is inextricably tied to sexual orientation,’” so there was no basis to distinguish this from on outright denial of services because of a potential customer’s sexual orientation.  The Giffords had tried to bolster this defense by claiming that they would have been happy to host a wedding reception for the McCarthys, so long as the actual wedding ceremony was not held on their premises, but the court rejected this defense, pointing out that the statute “does not permit businesses to offer a ‘limited menu’ of goods or services to customers on the basis of a status that fits within one of the protected categories.”

The court then turned to the Giffords’ constitutional claims, and here rested its analysis on the proposition that neither the federal First Amendment nor the analogous provision in New York State’s constitution allow people to violate general anti-discrimination laws based on their religious beliefs.  “While we recognize that the burden placed on the Giffords’ right to freely exercise their religion is not inconsequential,” wrote Peters, “it cannot be overlooked that SDHR’s determination does not require them to participate in the marriage of a same-sex couple.  Indeed, the Giffords are free to adhere to and profess their religious beliefs that same-sex couples should not marry, but they must permit same-sex couples to marry on the premises if they choose to allow opposite-sex couples to do so.  To be weighed against the Giffords’ interests in adhering to the tenets of their faith is New York’s long-recognized, substantial interest in eradicating discrimination.   Balancing these competing interests, we conclude that petitioners failed to show that SDHR’s determination constituted an unreasonable interference with the Giffords’ religious freedom.”

The court similarly rejected the Giffords’ other First Amendment claims.  “Here,” wrote Peters, “SDHR’s determination does not compel the Giffords to endorse, espouse or promote same-sex marriages, nor does it require them to recite or display any message at all.  The Giffords remain free to express whatever views they may have on the issue of same-sex marriage.  The determination simply requires them to abide by the law and offer the same goods and services to same-sex couples that they offer to other couples.”  The court rejected the Giffords’ assertion that holding same-sex marriages in their barn would broadcast to passersby their “support for same-sex marriage.”  The court doubted that anyone would think that a business providing a service in compliance with a law that requires them not to discriminate was making any kind of statement of the owners’ personal beliefs by providing the service.

The court also rejected the “expressive association” claim, finding that “there is nothing in this record to indicate that petitioners’ wedding business was ‘organized for specific expressive purposes’ rather than for the purpose of making a profit through service contracts with customers.”

The court also concluded that the remedy imposed by SDHR was “reasonably related to the wrongdoing, supported by evidence and comparable to the relief awarded in similar cases,” so there was no reason to change it.  The standard for judicial review of the agency’s remedy is “abuse of discretion,” and the court found that SDHR did not abuse its discretion by imposing the $3,000 damage award and the $10,000 fine.

The Giffords and their business are represented by Alliance Defending Freedom, an anti-gay religiously oriented litigation group that actively seeks to vindicate the proposition that free exercise of religion, at least by Christians, should always trump other legal duties.  They will undoubtedly try to get the state’s highest court, the Court of Appeals, to review this ruling, but that court does not have to take the case and is not likely to do so, given the unanimity of the five-member Appellate Division bench and the consistency with appellate rulings from other states involving wedding photographers, florists and bakeries.  Review by the U.S. Supreme Court is also unlikely, since it turned down the wedding photographer case from New Mexico and there is no division among the lower courts that have been ruling on these types of cases.

The McCarthys are represented by Mariko Hirose of the NY Civil Liberties Union and Rose A. Saxe of the ACLU.  SDHR’s appellate attorney Michael Swirsky argued on behalf of the agency in defense of its ruling, and a variety of civil rights and gay rights organizations weighed in as friends of the court, including the NAACP Legal Defense Fund, Lambda Legal and the National Center for Lesbian Rights, as well as New York Attorney General Eric Schneiderman.

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Federal Court Applies U.S. v. Windsor Retroactively to Allow Lesbian Widow to Seek Pension Benefit

U.S. District Judge Phyllis J. Hamilton ruled on January 4 in Schuett v. FedEx Corporation, 2015 U.S. Dist. LEXIS 244, 2015 WL 39890 (N.D. Cal.), that the Supreme Court’s 2013 decision in U.S. v. Windsor, striking down Section 3, a key provision of the Defense of Marriage Act (DOMA), could be applied retroactively to allow Stacey Schuett, a lesbian widow, to sue her late spouse’s employer for a survivor annuity.  Although the judge rejected a claim that the lawsuit could be brought directly under the company’s pension plan or as a breach of fiduciary duty action against the plan’s administrators, she accepted the argument that the plan could be sued for violating the Employee Retirement Income Security Act (ERISA) by failing to authorize the annuity for the plaintiff.

The story is complicated.  This account is based on what Stacey Schuett alleged in her complaint, as summarized by Judge Hamilton.

Schuett lived together in a committed relationship for 27 years with Lesly Taboada-Hall, who passed away from cancer on June 20, 2013, just a week before the Supreme Court’s momentous June 26 decisions rejecting an appeal of the federal court ruling that struck down California Proposition 8 and striking down Section 3 of DOMA.  For almost the entire length of their relationship, Taboada-Hall had been employed by Federal Express (FedEx), and she was a fully-vested participant in the FedEx Pension Plan.

As required by ERISA, the plan states that if an employee with a vested pension dies before retiring, their surviving spouse is eligible to receive a “qualified joint and survivor annuity” for the rest of their life.  The written pension plan uses the federal definition of spouse, directly referring to Section 3 of DOMA, which defined a spouse as “a person of the opposite sex who is a husband or wife.”  This is the definition that the Supreme Court declared unconstitutional on June 26, 2013.

Ms. Taboada-Hall was diagnosed with cancer in February, 2010, and as her condition worsened she took a medical leave of absence from FedEx in November 2012.  In February 2013, facing the fact that she would not be able to resume working, she contacted a FedEx human resources representative about her pension and other employee benefits, since she was eligible for early retirement under the terms of the pension plan.  The representative advised her not to retire, since she could continue on medical leave and have her medical expenses covered under the FedEx employee benefits plan.  She was asked about her other benefits, and was advised to name Schuett as her sole beneficiary on the other plans.  She also asked whether Schuett would get the “defined pension benefit” to which Taboada-Hall would be entitled, if Taboada-Hall died before retiring.  The representative said he did not know the answer to that and said “ask someone else.”

On June 3, 2013, the doctor advised that Taboada-Hall was terminal and did not have long to live.  Schuett and Taboada-Hall looked again through the benefits package, and noticed that the plan defined “spouse” with reference to DOMA.  Between June 3 and June 13, they had several conversations with FedEx human resources personnel trying to find out what would happen to Taboada-Hall’s benefits, and on June 13 they received the answer: Schuett would not receive a surviving spouse benefit because only opposite-sex partners could be recognized under the plan.

They quickly arranged with a Sonoma County Supervisor to come to their home and perform a civil marriage ceremony, even though they could not get a marriage license because Proposition 8 was still in effect.  The ceremony was witnessed by friends and family members on June 19. The next day Taboada-Hall died, and six days later Prop 8 and DOMA were declared unconstitutional.

What to do next?  Two days after the Prop 8 decision, the 9th Circuit Court of Appeals lifted its stay and Judge Vaughan Walker’s 2010 ruling holding Prop 8 unconstitutional went into effect.  Of course, the logical implication of the Supreme Court’s decision that the proponents of Prop 8 did not have standing to appeal Judge Walker’s decision was that Walker’s ruling should have been in effect from the summer of 2010 when it was issued, so by rights Taboada-Hall and Schuett should have been able to get a marriage license at any time since then.  Furthermore, the logical implication of the DOMA decision was that the federal definition of marriage was unconstitutional from the date it was enacted in 1996.

Schuett went into Sonoma County Superior Court on August 6, 2013, filing a Petition to Establish the Fact, Date, and Place of Marriage, contending that the June 19 marriage should be retroactively validated.  That court agreed, ruling on September 18, 2013, that the marriage was valid as of June 19, 2013, issuing a delayed certificate of marriage carrying that date.  This means that Schuett was a surviving widow when Taboada-Hall died on June 20, and thus she should be entitled to be treated as a surviving spouse by FedEx.

But not so fast!  FedEx turned her down for the benefit, arguing that eligibility depended on the terms of the written plan, which was limited to surviving different-sex spouses.  In Schuett’s federal lawsuit against FedEx for the benefit, Judge Hamilton agreed with FedEx that Schuett could not sue for the benefit directly, since only beneficiaries under a plan can sue for benefits and under the terms of the written plan she was not a beneficiary.  Furthermore, Judge Hamilton agreed with FedEx that the administrators of the plan had not violated their fiduciary duty, which required them to follow a reasonable interpretation of the written plan’s terms.  The judge granted FedEx’s motion to dismiss Schuett’s claims under these two legal theories.

However, plan administrators are required to administer plans “in accordance with applicable law,” wrote Judge Hamilton.  ERISA provides that a plan must provide an annuity benefit to the spouse of an employee who has a fully vested pension benefit but dies before they have retired and begun to receive retirement benefits.  Schuett argued that since California recognized her as being married on June 19, 2013, the day before Taboada-Hall died, she should be considered a surviving spouse for purposes of this ERISA provision.  She pointed out that in the Windsor case, the Supreme Court not only declared DOMA unconstitutional but also ordered that the federal government refund with interest the money Edie Windsor had paid to cover estate taxes of her wife, Thea Speyer, which would not have been due if the federal government recognized their Canadian marriage.  Thus, the ruling in Windsor was itself retroactive.

Judge Hamilton accepted Schuett’s argument, finding that “ERISA requires a fiduciary to follow plan documents insofar as such documents are consistent with Title I of ERISA.  ERISA requires defined benefit plans such as the Plan at issue to provide a qualified preretirement survivor annuity to all married participants who are vested and die before the annuity starting date, unless the participant has waived the benefit and the spouse consented to the waiver.”  Furthermore, the Department of Labor had issued a “guidance” document making clear that “ERISA’s mandatory benefits provisions apply to all spouses, including same-sex spouses.”

Among the cases Judge Hamilton relied upon were Cozen O’Connor P.C. v. Tobits, 2013 U.S. Dist. LEXIS 105507, 2013 WL 3878688 (E.D. Pa. 2013), specifically on an ERISA survivor benefits claim involving a same-sex couple, and Harper v. Virginia Dep’t of Taxation, 509 U.S. 86 (1993), on retroactivity when the Supreme Court announces a new rule of federal law and applies it retroactively to the parties in the case.

Hamilton found that the Windsor decision “appears to invalidate Section 3 of DOMA retroactive to 1996, the date of enactment.  Notably, the decision in Windsor applied retroactively.”

“In the present case,” she wrote, “although California denied recognition of the term ‘spouse’ to same-sex couples at the time of Ms. Taboada-Hall’s death on June 20, 2013, the Sonoma County Superior Court determined that plaintiff and Ms. Taboada-Hall were married on June 19, 2013, and issued a delayed marriage certificate. . .  [T]his court defers to the California court’s certification of the marriage. . .  The court finds that plaintiff has adequately alleged that FedEx has violated Title I of ERISA by acting contrary to applicable federal law and failing to provide plaintiff with a benefit mandated by ERISA, and that she is entitled to pursue equitable relief to remedy that violation.”  She concluded on this point that she was not persuaded “under the facts alleged in the complaint that there is any basis for denying retroactive application of Windsor.” Thus, Judge Hamilton denied FedEx’s motion to dismiss Schuett’s claim under the ERISA violation theory.

Stacey Schuett is represented by Nina Rachel Wasow, an attorney with Feinberg, Jackson, Worthman & Wasow (Oakland); Amy Whelan, Christopher Francis Stoll, and Shannon Minter of the National Center for Lesbian Rights (San Francisco); Julie Wilensky of Civil Rights Education & Enforcement Center (Berkeley); and Tate A. Birnie (Sebastopol).  FedEx used in-house counsel to litigate its motion to dismiss, but would probably retain outside counsel if it seeks to appeal this ruling to the 9th Circuit.  Since the FedEx plan administrators are under a fiduciary duty not to pay out any benefits that are not required by the plan or the law, they might conclude that they have to appeal this ruling, although the pragmatic approach could be to avoid the costs of litigation and grant Schuett’s claim for the annuity.  Of course, it is also open to Schuett to appeal the court’s order dismissing her claim on the other legal theories.

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Judith Kaye, a champion of lesbian & gay rights, dies at 77

Retired Chief Judge Judith Kaye of the New York Court of Appeals died on January 7, 2016, at age 77.  Most accounts of her passing mentioned her dissenting opinion in the case of Hernandez v. Robles, 7 N.Y.3d 338 (2006), the case in which the state’s highest court voted against the claim that same-sex couples have a constitutional right to marry, as one of her most notable opinions, but this was merely the capstone of a long career on the court during which Judge Kaye spoke out eloquently many times in cases important for the rights of gay people and people affected by the AIDS epidemic.

Governor Mario Cuomo appointed Kaye to the court early in his first term in 1983, and then elevated her to the position of Chief Judge in 1993.  She retired due to a state constitutional age limit at the end of 2008.  As of her retirement, she was the longest-serving judge in the Court of Appeals’ history, as well as the longest serving Chief Judge and the first woman to sit on the court and to sit as its chief.  Her appointment was a bit controversial, since she had no prior judicial experience when she was appointed, having worked as a corporate and litigation lawyer in private practice for most of her career, but she quickly assumed a leading role on the court, especially as a defender of civil rights and minority rights.

She joined the majority of the court in 1989 in a historic ruling, Braschi v. Stahl Associates Company, 74 N.Y.2d 201, which for the first time in American law recognized cohabiting same-sex couples as members of each other’s family for purposes of the state’s Rent Control Law, thus protecting the right of a surviving same-sex partner to take over the lease although the apartment had been rented in the name of the deceased partner.  Following up on this important ruling, Judge Kaye wrote the opinion for the court in 1993, Rent Stabilization Association of New York v. Higgins, 83 N.Y.2d 156, which upheld the New York Division of Housing and Community Renewal’s regulations that extended the Braschi ruling to the far larger rent stabilization system.  DHCR had specifically noted the impact of the AIDS epidemic on the housing security of gay men as a justification for the regulation. Judge Kaye rejected the plaintiff’s argument that extending protection to non-traditional families through an administrative regulation was an impermissible legislative act by the agency, and she also rejected the argument that extending this protection had unconstitutionally deprived the owners of property rights.

In 1991, Judge Kaye penned an important dissenting opinion in the case of Alison D. v. Virginia M., 77 N.Y.2d 651, when the court ruled that a lesbian co-parent of a child was a “legal stranger” who could not seek court-ordered visitation rights after separating from the child’s birth mother.  The court rested its ruling on the formal language of New York’s antiquated Domestic Relations Law, which even today adheres to a vision of families that fails to reflect reality.  Kaye criticized the court for exalting legal formality above a central purpose of family law: protecting the best interests of children.  “The majority’s retreat from the courts’ proper role — its tightening of rules that should in visitation petitions, above all, retain the capacity to take the children’s interests into account — compels this dissent,” she wrote.  The judge argued that a provision of the law requiring the court to take the best interest of children into account should take priority, and that the formal legal definition of a parent should not stand in the way in situations where a person had been an actual parent to a child in a relationship that had been fostered and encouraged by the child’s legal parent.

On the same date as the Alison D. ruling, Judge Kaye joined the majority in an important ruling upholding a determination by the state’s Public Health Council not to list HIV infection as a condition requiring mandatory testing and contact tracing.  The Council was concerned that such a listing would prevent infected persons from cooperating with public health officials and impose a barrier to addressing the HIV epidemic.  The New York State Society of Surgeons had challenged this decision, but the court held that the Council’s ruling had a rational basis and would not be second-guessed by the court.  N.Y. State Society of Surgeons v. Axelrod, 77 N.Y.2d 677 (1991).

Judge Kaye wrote for the court in 1995 in a sharply-divided 4-3 ruling, Matter of Jacob, 86 N.Y.2d 651, creatively interpreting the state’s antiquated adoption statute so as to allow for second-parent adoptions.  This was a crucially important follow-up to the Alison D. ruling.  Since the Court of Appeals considered same-sex coparents to be “legal strangers,” the only way they could protect the relationship with their children would be if they could adopt them, with the permission of their partner.  Literally interpreted, the adoption statute would require that the child’s birth parent relinquish her parental rights upon adoption by a person to whom she was not married.  But Judge Kaye found that this would violate the statute’s overall purpose: the child’s best interest.  “This policy would certainly be advanced in situations like those presented here by allowing the two adults who actually function as a child’s parents to become the child’s legal parents,” she wrote.

After listing all the practical reasons why allowing a second-parent adoption would make sense, Judge Kaye cut to the heart of the matter.  “Even more important,” she wrote, “is the emotional security of knowing that in the event of the biological parent’s death or disability, the other parent will have presumptive custody, and the children’s relationship with their parents, siblings and other relatives will continue should the coparents separate.  Indeed, viewed from the children’s perspective, permitting the adoptions allows the children to achieve a measure of permanency with both parent figures and voids the sort of disruptive visitation battle we faced in Matter of Alison D. v. Virginia M.”

A year later, Judge Kaye provided the crucial vote in a 4-3 decision holding that a dentist’s office is a place of public accommodation, so a dentist would be in violation of the Human Rights Law for refusing treatment in his office to patients the dentist knew or suspected to have HIV infection.  Cahill v. Rosa, 89 N.Y.2d 14 (1996).

In 2001, Judge Kaye joined with the majority in Levin v. Yeshiva University, 96 N.Y.2d 484, ruling that the trial court had wrongly dismissed a sexual orientation discrimination complaint under the New York City Human Rights Law brought against Yeshiva’s Albert Einstein College of Medicine for refusing to allow two lesbian medical students to live with their same-sex partners in housing provided near the campus for married students.  The case arose before the state legislature had added sexual orientation to the state’s Human Rights Law, and a majority of the court rejected the plaintiffs’ argument that the College had violated the state law’s ban on marital status discrimination, but the court accepted the argument that because the state did not let same-sex couples marry, it was discriminatory on grounds of sexual orientation covered by the city law to refuse an important benefit to same-sex couples.  Judge Kaye would have gone farther than the court, however.  In a partial dissent, she argued that the marital status complaint should not be dismissed either, finding that the court’s earlier recognition in Braschi that same-sex partners could constitute a family should be taken into account.  “At the very least,” she wrote, “it is a question of fact whether plaintiffs’ life partners qualify as members of their ‘immediate families.’  If they do, the State and City Human Rights Laws prohibit [the medical school] from denying them partner housing merely because they are unmarried.  Since discovery and fact finding on this issue are necessary, the lower courts improvidently granted [the school’s] motion to dismiss.”  She pointed out that prior cases interpreted the “marital status” provision in the state law to ban discrimination against somebody because they are “single, married, divorced, separated or the like.”  In this case, she said, the plaintiffs were alleging that they suffered discrimination because they were not married, an obvious violation of the ban on marital status discrimination.

Finally, of course, there is Judge Kaye’s dissent in Hernandez, in which she argued on behalf of herself and Judge Carmen Ciparick that same-sex couples did have a right to marry.  “This State has a proud tradition of affording equal rights to all New Yorkers,” she wrote.  “Sadly, the Court today retreats from that proud tradition.”  After noting the long list of federal and state cases holding that “marriage is a fundamental constitutional right,” she wrote that “fundamental rights, once recognized, cannot be denied to particular groups on the ground that these groups have historically been denied those rights.  Indeed, in recasting plaintiffs’ invocation of their fundamental right to marry as a request for recognition of a ‘new’ right to same-sex marriage, the Court misapprehends the nature of the liberty interest at stake.”  She pointed to the U.S. Supreme Court’s then-recent decision in Lawrence v. Texas, striking down a state sodomy law and overruling Bowers v. Hardwick, the 1986 decision upholding Georgia’s sodomy law.  In Lawrence, the Court criticized the Bowers decision as failing to apprehend the nature of the liberty interest at stake.  “The same failure is evident here,” wrote Judge Kaye. “An asserted liberty interest is not to be characterized so narrowly as to make inevitable the conclusion that the claimed right could not be fundamental because historically it has been denied to those who now seek to exercise it.”

“Simply put,” she asserted, “fundamental rights are fundamental rights.  They are not defined in terms of who is entitled to exercise them.”  Continuing, she wrote, “The long duration of a constitutional wrong cannot justify its perpetuation, no matter how strongly tradition or public sentiment might support it.”

Judge Kaye contended that “homosexuals meet the constitutional definition of a suspect class” for purposes of equal protection rights, which would mean that “any classification discriminating on the basis of sexual orientation must be narrowly tailored to meet a compelling state interest.”  She also pointed out that the same-sex marriage ban discriminated on the basis of sex, which would require the court to apply “heightened scrutiny,” under which the policy would be struck down unless it was “substantially related to the achievement of important governmental objectives.”  She concluded that the ban could not survive either test, much less the “rational basis test” that would otherwise apply. She rejected the court’s conclusion that the issue should be left up to the legislature, stating that “this Court cannot avoid its obligation to remedy constitutional violations in the hope that the Legislature might some day render the question presented academic.”  She concluded, “I am confident that future generations will look back on today’s decision as an unfortunate misstep.”

Judge Kaye’s confidence was vindicated over the past several years as scores of courts, many of them citing her dissenting opinion, declared state bans on same-sex marriage unconstitutional, culminating in the Supreme Court’s Obergefell ruling on June 26, 2015.  After New York’s legislature enacted marriage equality in 2011, Judge Kaye happily performed same-sex marriage ceremonies.  Perhaps not so coincidentally, the lead attorney in U.S. v. Windsor, the case that struck down the federal ban on recognizing same-sex marriages in 2013, was Roberta Kaplan, a former law clerk for Judge Kaye whose book about the case describes the important role Judge Kaye played for her as a mentor.  The judge reportedly had several openly-gay clerks, some of whom have themselves become judges.

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Federal Court Enjoins Tennessee School District’s Censorship of Student’s Pro-Gay T-Shirt

U.S. District Judge Kevin H. Sharp presented an early Christmas present to Rebecca Young, a student at Richland High School in Giles County, Tennessee, awarding her a preliminary injunction against school authorities who had forbidden her from wearing a t-shirt with the slogan “Some People are Gay, Get Over It.”  Young v. Giles County Board of Education, 2015 U.S. Dist. LEXIS 170695, 2015 WL 9413877 (M.D. Tennessee, Dec. 22, 2015).

Young showed up for the first day of school on August 5, 2015, wearing said t-shirt, which, according to her complaint, did not cause any disruptions.  “No student or faculty member expressed to or otherwise interacted with Young in a manner manifesting any hostility, disapproval, or offense to the message on her shirt,” asserts her complaint.  At the end of the truncated first day, while all the students were in the cafeteria, Principal Micah Landers summoned Young to the front of the room, which was “full of students,” and told her that she could not wear to school either that t-shirt or “any other shirt referencing LGBT rights.”

Young’s mother telephoned Landers later that day to question his direction, at which time he “confirmed that he had forbidden Rebecca from wearing the shirt or any other apparel which bore phrases, symbols, slogans or other indicia of or in support of the LGBT community.” Landers asserted that this was for Young’s protection against “harassment and bullying.”  Young’s mother then called Phillip Wright, the Director of Schools for Giles County, who said “pro-LGBT messages are sexual in nature and, therefore, prohibited by the dress code.”  Several weeks later, Young’s mother received a letter from the school district stating that the restriction was justified because Young “would have been bullied or harassed by students due to the nature of the shirt’s writing and the environment of the school.”  The letter cited official dress code policies adopted by the school district, which stated: “Attire considered disruptive or risky to health or school/personal safety is not appropriate” and authorized the principal to administer “appropriate punishment” if a student came to school “attired in a manner which is likely to cause disruption or interference with the operation of the school.”

Young filed suit in November, represented by Mark J. Downton of Nashville and Thomas H. Castelli, ACLU (Nashville Office), suing the school board as well as Principal Landers and Wright in their individual and official capacities.  The defendants’ response so far has been to ignore the lawsuit!  According to the opinion by Judge Sharp on Young’s motion for a preliminary injunction, as of December 22 “Defendants have not responded to Plaintiff’s Motion or even entered an appearance in the case.”

Judge Sharp found it virtually an open-and-shut case for issuing a preliminary injunction against the defendants.  “Plaintiff brings suit to stop her school from censoring her expression of her views on a topic of undeniable political importance,” he wrote.  “The legal ground covering such issues is so well-trod that the Court finds itself surprised at the need to journey down this path.  Nevertheless, the Court draws upon analogous precedent to reach the conclusion that Plaintiff will likely succeed on the merits of her claims,” the first test of whether the court should issue a preliminary injunction.

The Supreme Court set down the basic analysis of the First Amendment free speech claim of students in Tinker v. Des Moines, 393 U.S. 503 (1969), in which the court held that public school students enjoy First Amendment free speech rights to speak on matters of public concern, bound only by the school district’s legitimate interest in maintaining order and preventing disruption.  “Schools need not tolerate student speech deemed inconsistent with the educational mission even if similar speech might be protected outside the school setting,” wrote Judge Sharp.  “Yet neither may schools punish ‘silent, passive expressions of opinion, unaccompanied by any disorder or disturbance’ attributable to such expression, and ‘undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression,’” quoting from Tinker.  In that case, the Supreme Court upheld the right of high school students to wear black armbands to protest the Vietnam War during the 1960s.  Under Tinker, a school that wants to suppress student political speech must show that the “forbidden conduct would ‘materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.’”

Sharp found that student speech on LGBT rights “is speech on a purely political topic, which falls clearly within the ambit of the First Amendment’s protection.”  Since the defendants did not deign to file any opposition papers, the court relied solely on Young’s uncontested allegations in her complaint and papers in support of her motion.  “Based on the evidence now before the Court,” wrote Sharp, the ban on Young’s t-shirt and similar apparel was not necessary to avoid “material and substantial interference with schoolwork or discipline.”  “Plaintiff wore her shirt without any disruption on August 5, 2015. The only disruption came at the hands of Defendants themselves, when Principal Landers addressed Plaintiff in the cafeteria.  Apart from this indelicate approach to a sensitive topic, Plaintiff’s shirt does not even seem to have been a blip on others’ radar.”  The statements Landers and Wright made to justify their ban were nothing “other than conclusory statements to support their unfounded theory that speech on LGBT rights will disrupt the school environment,” which falls far short of the Tinker standard of justification.

Briefly addressing the other tests for preliminary injunctive relief, Sharp found that abridging Young’s free speech rights caused her irreparable harm, which was “actual and ongoing,” that granting the injunction would cause no harm to others and would be in the public interest.  “Granting an injunction will vindicate the First Amendment rights of other students who are also currently subject to Defendants’ censorship,” he wrote.  “Moreover, because Defendants have failed to present any evidence regarding the disruptive nature of LGBT-related expression, there is little reason to believe that granting the injunction will harm other students by negatively affecting their education.”

In his Order issued with the opinion, Sharp enjoined the defendants from “restraining, prohibiting, or suppressing the Plaintiff or any other student within the school district of Giles County, Tennessee, from expressing his or her support for the respect, equal treatment, and acceptance of LGBT people including but not limited to the shirt worn by Plaintiff Rebecca Young on August 5, 2015 and other apparel bearing the rainbow symbol or other symbols and phrases associated with LGBT rights; enforcing any policy that prohibits speech or expression in support of the respect, equal treatment, and acceptance of LGBT people; and taking retaliatory action against Plaintiff for bringing this lawsuit, or against any students for their past or future expressions of support for the respect, equal treatment, and acceptance of gays and lesbians.”  If any school official takes any step to prevent Young or any other student from wearing a pro-LGBT shirt or button or other symbol, they could be held in contempt of court.

Sharp, who is Chief Judge in the Middle District of Tennessee, was appointed to the court in 2010 by President Obama.

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Lambda Legal’s Wisconsin Birth Certificate Litigation Hits Speed Bump

Lambda Legal’s federal lawsuit seeking to compel Wisconsin officials to issue appropriate birth certificates for children of married same-sex couples hit a speed bump on December 16 when U.S. District Judge Barbara B. Crabb denied Lambda’s motion for class certification and summary judgment in Torres v. Rhoades, 2015 U.S. Dist. LEXIS 169965, 2015 WL 9304584 (W.D. Wis.).  Lambda sued on behalf of plaintiffs Chelsea Torres and Jessamy Torres and their minor child, A.T.   A.T. was born as a result of donor insemination performed in compliance with Wisconsin statutes, and the women were legally married before A.T. was born, but Wisconsin officials refused to issue a birth certificate listing both women as mothers of A.T., asserting that the non-birth mother would have to go through an adoption proceeding to get her name on an amended birth certificate.

Under Wisconsin statutes a birth certificate lists the woman who gave birth to the child and her legal husband.  Furthermore, the statute governing birth certificates provides that if a child was conceived through donor insemination in compliance with a Wisconsin statute that requires that a licensed physician supervise the process and that the woman’s husband give written consent to the procedure, then the wife and husband are both listed on the birth certificate.  If the husband does not give written consent, he is not listed on the birth certificate, even though he is married to the birth mother.  Furthermore, if the donor insemination is not carried out in compliance with the statute, only the birth mother is listed on the birth certificate, even though she is married.  Chelsea and Jessamy Torres complied with the statute, having a doctor supervise the insemination procedure and the non-birth mother giving written consent, with the sperm donor waiving all claim to parental rights.

The motion seeking class certification proposed a class consisting of “all same-sex couples who legally married in Wisconsin or in another jurisdiction, at least one member of whom gave birth to a child or children in Wisconsin on or after June 6, 2014, and who request birth certificates for such children listing both spouses as parents, regardless of whether they have already received birth certificates listing only one spouse as a parent; and all children born to such couples on or after June 6, 2014.”  The date is significant because it is the date on which Judge Crabb declared Wisconsin’s ban on same-sex marriage unconstitutional in Wolf v. Walker, 986 F. Supp. 2d 982 (W.D. Wis. 2014).  Wisconsin Department of Health Secretary Kitty Rhoades opposed the proposed class by arguing that the proposed class representatives, the Torres couple and their child, could not properly represent the interests of all proposed class members, since the class as described would take in people who conceived their children in different ways, and thus would present different issues regarding entitlement to placing a name on a birth certificate as a parent.

The proposed class would not, as a matter of fact, including same-sex male couples, just female couples, but Secretary Rhoades pointed out that women can become pregnant in at least three ways relevant to the issues presented to the court.  A female couple could conceive through donor insemination carried out in compliance with the state’s assisted conception statute, involving supervision by a physician and written consent by the non-birth parent; or, they could conceive through donor insemination that does not comply with the statute; or, in presumably the rare case, they could conceive by the birth mother having sex with a man to whom she presumably was not married.  (This is not so far-fetched; there is at least one case from another state in which a woman became pregnant through sex with a male friend while her relationship with her same-sex partner was “on hiatus” and the women resumed their partnership before the child was born. . .)  Rhoades argued that because the proposed class representatives fit into only the first category, they could not represent the second and third categories, whose cases would present different legal issues when viewed from the perspective of equal protection of the laws and due process under the 14th Amendment, which were the constitutional grounds cited by Lambda for the lawsuit.

Judge Crabb agreed with Rhoades that “subclasses” would be needed and new plaintiffs would have to be joined as class representatives in order to give the court jurisdiction to deal with the birth certificate issues that would be raised by the other two classes.  “The general rule in this circuit is that a plaintiff cannot be an adequate representative of the class if she is not subject to the same defenses as other members of the class, at least if the defense is central to the litigation,” wrote Judge Crabb.  In this case, while the state is essentially conceding that after Obergefell v. Hodges it doesn’t have a good defense to the claims of married same-sex couples who complied with the donor insemination statute, it could oppose the claims of those who didn’t comply, or of those who conceived by a member of the couple having sexual intercourse with a man to whom she was not married.  Judge Crabb found that the circuit’s rule applies to this case.

She agreed with Lambda that the claims regarding birth certificates would be appropriate for class treatment, but she could not certify Lambda’s plaintiff couple and their child as representatives for the broad class described in the motion.  In light of her decision that the proposed class could not be certified, Judge Crabb held that it would be premature to grant Lambda’s motion for summary judgment.  She pointed out that the state has actually conceded that the first subclass of same-sex couples who followed the requirements of the donor insemination statute should be entitled to get both names on the birth certificate without the non-birth mother going through an adoption, and had offered to amend the birth certificates of all couples who had complied with that statute, but plaintiffs had declined the offer in order to maintain this class action.

Judge Crabb also opined that Lambda’s request for a declaration that various Wisconsin statutes unconstitutionally discriminate against same-sex married couples seemed overbroad in light of the subject matter of the litigation.  Lambda was attacking not only the birth certificate statute and the donor insemination statute to the extent that their application discriminates against same-sex couples, but also the paternal presumption statute, for failing to address the legal status of the non-birth parent in a same-sex married couple.  That statute as worded provides that “a man is presumed to be the natural father of a child” who is born to his wife, but that the presumption could be rebutted by showing through genetic testing that another man is the actual natural father of the child.  Crabb commented, “Plaintiffs do not explain how that presumption relates to birth certificates, which is the only issue plaintiffs raise in this case.”  She pointed out that the paternal presumption statute “seems to involve issues that arise later,” such as obligations for child support or inheritance rights.  “Plaintiffs do not include any allegations in their amended complaint showing how they are being injured by [the paternal presumption statute], which raises the question whether they have standing to challenge that statute.  Standing is a jurisdictional issue, so I cannot ignore it even if defendant does not raise an objection.  Thus, if plaintiffs plan to continue to seek a ruling regarding the constitutionality of [the paternal presumption statute], they will have to show that one or more plaintiffs meet all the requirements for standing.”

The judge specified that her ruling denying Lambda’s motions was “without prejudice,” and she gave Lambda until February 1, 2016, to file a new class certification motion.  Either they will have to narrow their proposed class to same-sex married couples who complied with the donor insemination statute, or they will have to recruit additional plaintiffs and seek certification of several subclasses.  In addition, if they want to attack the paternal presumption statute as part of this case, they will need to recruit plaintiffs who can show some sort of concrete harm due to the failure to that statute to take on a gender-neutral parental presumption approach that would apply to same-sex couples.  In light of these rulings, Judge Crabb also struck the contemplated trial date of February 10, 2016, observing that after a new class certification is ruled upon, the court will set a new trial date, but that if the plaintiffs do not file a renewed class certification by February 1, the court would set a new trial date with the case proceeding on behalf of the named plaintiffs without class certification (in which case, by implication, the court’s ruling on the merits would only deal with the claims of married same-sex couples who complied with the donor insemination statute).

In an earlier ruling on December 16, 2015 U.S. Dist. LEXIS 167977, Judge Crabb pointed out that ordinarily a summary judgment motion would not be ruled upon in a class action case until after the class is certified and notice is sent to class members so they can opt out or opt in as the case may be.  “Presumably the parties do not believe that the class is entitled to notice in this case because neither side mentions notice in their filings,” wrote Crabb, but she pointed out that the Federal Rules of Civil Procedure provide that notice should be given “to enable class members to challenge the class representatives or otherwise intervene in the suit, rather than to allow them to opt out.”  Crabb asserted that it was difficult for her to decide whether notice should be required in this case without any input from the parties, so she gave the parties until December 30, 2015, “to show cause why the class should not receive notice in the event that the court grants the motion for class certification.  In addition, the parties should address the question of how notice would be provided if that is what the court orders.”  Judge Crabb’s December 21 ruling mentioned the December 16 order in passing, but did not indicate whether the time for response would be extended in light of the denial of class certification.

Counsel for plaintiffs include Camilla Taylor, Christopher Clark and Kyle Palazzolo from Lambda’s Chicago office, and local counsel Clearesia Lovell-Lepak and Tamara Beth Packard, both of Madison, Wisconsin.

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California Appeals Court Rules for Gay Teacher in Morality Discharge Dispute

The California 2nd District Court of Appeal upheld a determination by Los Angeles County Superior Court Judge Luis Lavin that the Los Angeles Unified School District’s Commission on Professional Competence erred when it found a gay elementary school teacher who had been arrested in a park sting was “unfit to teach” and authorized termination of his employment.  Rodriguez v. Commission on Professional Competence, 2015 Cal. App. Unpub. LEXIS 9062, 2015 WL 8767581 (Dec. 14, 2015).  The courts relied heavily on a landmark 1969 California Supreme Court decision, Morrison v. State Board of Education, 1 Cal.3d 214 (1969), which had rejected long-standing precedents, holding that gay people were not necessarily morally unfit to be public school teachers and could not be discharged without a showing of adverse effect on the school and/or students.

The plaintiff had been a teacher with the Los Angeles Unified School District for 24 years at the time of his discharge.  He was by all accounts an exceptionally talented and dedicated teacher.  He was arrested in Elysian Park on September 1, 2010, by undercover police officers who claimed he had exposed his penis to one of them and nodded at the officer as a signal to follow him.  Accounts differed as to whether he was masturbating and whether the location in which he was standing was visible from the nearby Park Row Drive.  The teacher later testified that he had been out jogging and had found an isolated place to urinate, which is why his penis was out, that he noticed an attractive man staring at him and thought that contact was desired.  In any event, he was arrested and charged with publicly engaging in lewd conduct.  Under the state’s Education Code he was placed on compulsory unpaid leave and his teaching credentials were suspended.  The misdemeanor complaint was subsequently amended to add a charge of disturbing the peace.  The teacher pleaded no contest to the disturbing the peace charge and was placed on two years’ probation.  The lewd conduct charge was dismissed and his teaching credentials were reinstated.  The guilty plea was later expunged after the probationary period ended without incident.  Administrators at the Pacific Boulevard School recommended in December 2010 that he be assigned to teach the fourth-grade gifted class, but the District continued to assign him to non-teaching duties, and a principal leader for the local school district recommended after an informal meeting with the teacher that he be dismissed.

In February 2012 the teacher was notified of the District’s intention to dismiss him and he was suspended without pay.  The District filed charges with the Commission on Professional Competence seeking dismissal on grounds of immoral conduct, unprofessional conduct and evident unfitness for service.  In June 2012, the Committee on Credentials reviewed the file and determined to close its investigation and recommend no adverse action, but the Commission went ahead with a hearing in January 2013 at which the teacher and the arresting officers testified about what had happened on September 1, 2010, and various administrators and teachers gave opinion testimony about the teacher’s qualifications, emphasizing their fear that his “poor judgment” could affect his ability to be a role model for students and that parents who might learn of what had happened would demand that their children be withdrawn from his classes.  The Commission found the police officer’s testimony credible, and found, referring to the %Morrison% decision factors, that even though there was no evidence of an actual adverse effect on students, the District’s witnesses “established that he could not function as an effective role model for students”; “there was evidence that parents would be adversely affected, and it was clear District administrators were as well’: and that in light of his “poor judgment” displayed on that occasion, he “could not be trusted in a classroom to exercise the judgment necessary under his responsibility to properly interact with his young students.”  The Commission emphasized that the teacher continued to deny having done anything wrong and thus “did not take responsibility” for the conduct that the Commission concluded had occurred.  The Commission granted the District’s request that the teacher be discharged.

The teacher then petitioned the Los Angeles County Superior Court for a writ of mandate to set aside his termination, which was granted by Judge Lavin.  As authorized by statute, the court exercised its “independent judgment on the evidence in the administrative record,” finding that the police officer’s credibility was questionable and his “recollection of what transpired highly suspect.”  Lavin explained that the police officer “exhibited bias or prejudice against [the teacher] because of his sexual orientation,” shown by the police officer asking the teacher whether he had AIDS and making exaggerated statements in the arrest report that “reflect outdated stereotypes and a strong moral disapproval of homosexuality.”  The court doubted that the police officer’s recollection of various precise details of the incident after the passage of several years was reliable.

According to the Court of Appeal opinion by Justice Dennis Perluss, “Following in part from these credibility determinations, the court found, although the weight of the evidence established [the teacher] had exposed his penis to [the officer] and touched it for about 20 seconds, it did not support the Commission’s findings [the teacher] had masturbated or that his conduct was visible from Park Row Drive, 200 feet away and obscured by bushes, shrubs and trees.”  As to the Morrison factors, Lavin said the evidence did support a finding that the teacher’s act of exposing himself “to an undercover police officer who he thought was sexually interested in him adversely affected other teachers and students at Pacific Boulevard Elementary,” observing that those findings were based entirely on the personal opinions of the District’s lay witnesses, as the District “called no medical, psychological, or psychiatric experts to testify as to whether  a man who had had a single, isolated, and limited encounter with one person would be likely to repeat such conduct in the future.  The District also offered no evidence that a man of his background was any more likely than the average adult male to engage in any untoward conduct with a student, teacher, or [District] employee.”  The court also noted that the teacher’s “multi-subject teaching credential” would “permit him to teach at more than 400 other schools in the District to the extent his misconduct was sufficiently notorious at Pacific Boulevard School to justify a transfer or reassignment notwithstanding ‘at most, . . . a handful of teachers’” at that school had even “limited knowledge” of what had happened.  Judge Lavin concluded that the teacher’s dismissal was improper.  “Moral disapproval, by itself, of his actions is not a sufficient reason to deem him a threat to students, teachers, or administrators,” Lavin wrote.

The Court of Appeal affirmed Lavin’s ruling, rejecting the District’s appeal.  “When, as here, the superior court has independently reviewed the administrative record and ruled the weight of the evidence fails to support the administrative agency’s order,” wrote Justice Perluss, “our ‘substantial evidence’ review of that conclusion is, in practice, akin to appellate review in civil failure-of-proof cases: If the evidence in the administrative record compels a finding in favor of the agency as a matter of law, we must reverse. . .  However, if there is substantial evidence on both sides of the factual issues or a complete absence of evidence, we will affirm the superior court.”  In this case, the court concluded, the superior court did not err in concluding that the District presented “insufficient evidence” that the teacher was “unfit to teach.”  The court of appeal found that once the superior court’s independent review of the record established that the “factual basis for the District’s penalty decision was properly set aside,” it followed that the decision to terminate him was “necessarily an abuse of discretion.”

The District claimed that the superior court had failed to follow Morrison to the letter.  “The District misconceives the purpose of the Morrison factors,” wrote Purless, “which are not inflexible rules with definable boundaries, but broad classes of issues to be considered to assist ‘in determining whether the teacher’s future classroom performance and overall impact on his students are likely to meet standards.’  Even the Morrison court itself, in analyzing whether Morrison was fit to teach, did not focus on several of the key factors.  Thus, in holding the record contained no evidence Morrison’s week-long, consensual physical relationship with another man rendered him unfit to teach, the Court analyzed whether ‘his retention in the profession poses a significant danger of harm to either students, school employees, or others who might be affected by his actions as a teacher.’  In doing so, the court ‘inquired whether any adverse inferences can be drawn from that past conduct as to petitioner’s teaching ability, or as to the possibility that publicity surrounding past conduct may and of itself substantially impaired his function as a teacher.’”

In this case, Purless continued, substantial evidence supported the conclusion that “only a handful of administrators and teachers had limited knowledge of the basis for [the teacher]’s arrest and thus his conduct had not ‘gained sufficient notoriety so as to impair his on-campus relationships.’. . .  There was no evidence other teachers or student would ever learn of [his] conduct, occurring several years earlier and for which his conviction of disturbing the peace had been expunged.”  “The District witnesses’ testimony about what parents might do if they were to learn of the conduct was entirely speculative and of limited value,” wrote Purless.

While noting distinctions between Morrison, which involved private consensual behavior, and this case, which involved an arrest in a public park, the court concluded that “the fact that [the teacher] had been charged with lewd conduct or pleaded no contest to disturbing the peace is not in and of itself a sufficient basis for a determination that he was unfit to teach.  Rather, it is simply a consideration.  In sum, the superior court in the instant matter understood the law, evaluated the credibility of the witnesses and considered the facts in concluding the District had failed to carry its burden of demonstrating [the teacher] was unfit to teach.  We find no basis to rule the court’s legal reasoning was flawed or its conclusions unreasonable.”

The teacher was represented by attorneys Lawrence B. Trygstad and Richard J. Schwab of Trygstad, Schwab & Trygstad.

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Discharged Atlanta Fire Chief Strikes Back in Federal Lawsuit

Kelvin J. Cochran, who was discharged as Chief of the Atlanta, Georgia, Fire and Rescue Department (AFRD) after he self-published a book asserting negative views about homosexuality and same-sex marriage based on his religious beliefs, has struck back at the City and Mayor Kasim Reed with a lawsuit claiming a violation of his constitutional rights.  On December 16, U.S. District Judge Leigh Martin May issued a ruling dismissing some of Cochran’s claims, but allowing others to go forward.  Cochran v. City of Atlanta, 2015 WL 9244523 (N.D. Ga., Dec. 16, 2015).

Cochran became the Atlanta Fire Chief in 2008.  He left for ten months in 2009 to serve as Administrator of the U.S. Fire Administration in Washington, D.C., but returned and continued in the Atlanta position until he was suspended as a result of the controversy surrounding his book and ultimately discharged on January 6, 2015.

Cochran, self-described as a devout evangelical Christian and an active member of Atlanta’s Elizabeth Baptist Church, wrote and self-published a book titled “Who Told You That You Were Naked?: Overcoming the Stronghold of Condemnation.”  The book grew out of a men’s Bible study group at his church, and was intended as a guide to men to help them “fulfill God’s purpose for their lives.”  One of those purposes, according to Cochran’s book, is to avoid any sexual activity outside of a traditional heterosexual marriage, expressing the view that homosexual activity and same-sex marriage are immoral and inconsistent with God’s plan.

Cochran consulted the City’s Ethics Officer about whether a city official could write a “non-work-related, faith-based book,” and was told he could do that “so long as the subject matter of the book was not the city government or fire department,” but he did not obtain a written ruling.  He later asked the Ethic Officer if he could identify himself in the book as Atlanta Fire Chief, and she responded in the affirmative.  Cochran placed the book for sale on, and distributed free copies to various individuals, including Mayor Reed, some members of the city council, and various Fire Department employees whom he considered to be Christians (some of whom knew he was writing the book and had requested copies).

A Fire Department employee who saw the book and objected to its statements about sexual morality contacted City Councilmember Alex Wan to complain, which led Wan to initiate discussions at the City’s “upper management” level.  This led to a meeting of top City officials with Mayor Reed.  On November 24, 2014, Cochran received a letter informing him that he was suspended without pay for 30 days while the City determined what to do.  Among other things, the City cited an ordinance prohibiting city officials from engaging in outside employment for pay without written permission from the Ethics office.  At the same time, Mayor Reed went public about disagreeing with Cochran’s views expressed in the book, stating “I profoundly disagree with and am deeply disturbed by the sentiments expressed in the paperback regarding the LGBT community” and disassociating his administration from those views.  Councilmember Wan released a statement to the local newspaper that “I respect each individual’s right to have their own thoughts, beliefs and opinions, but when you’re a city employee, and those thoughts, beliefs and opinions are different from the city’s, you have to check them at the door.”  Cochran’s suspension and statements by Reed, Wan and other city officials led to extensive media coverage.  On January 6, 2015, Cochran was informed of his discharge.

Atlanta has had local legislation banning sexual orientation discrimination for many years, and has long provided benefits for same-sex partners of city employees.  At the time this controversy arose late in 2014, a federal district court had ruled against the constitutionality of Georgia’s ban on same-sex marriage, but the matter was still pending on appeal in the courts.  Atlanta government leaders had openly supported the litigation for marriage equality.  Cochran’s views expressed in the book were apparently out of synch with the views of the City’s elected leadership.  However, Cochran claimed in his federal complaint that he has never been accused of discriminating as Fire Chief on the basis of sexual orientation.

Cochran’s lawsuit poses a classic and recurring policy question: to what extent can a state or local government require public officials to refrain from publicizing their views on controversial public issues when those views conflict with official policies as articulated by politically-accountable officials?  The U.S. Supreme Court has issued a series of important decisions since first addressing this issue in 1968 in Pickering v. Board of Education.  That case involved a public high school teacher who was discharged after publishing a letter in a local newspaper that was critical of the board of education’s budget proposals (which had been twice rejected by local voters).  The Court held that public employees are protected by First Amendment free speech rights when expressing views on matters of public concern when they are speaking in their capacity as private citizens, but such protection is not absolute: the court must conduct a balancing test weighing the employee’s free speech rights against the employer’s legitimate concerns about being able to carry out governmental functions.  Speech that results in disruption of those functions may lose its constitutional protection.  Subsequent rulings have clarified that when a public employee is speaking in an official capacity, he is speaking for the government and can be disciplined or discharged when his speech contradicts government policy.

Cochran filed a nine-count complaint against the city and Mayor Reed, raising various claims under the 1st and 14th Amendments.  Although Judge May dismissed some of those claims, and ultimately found that Mayor Reed enjoyed qualified immunity from personal liability to Cochran, she concluded that his complaint alleged facts sufficient to maintain several of his 1st Amendment claims as well as one of his 14th Amendment Due Process claims.

Cochran’s complaint leads off with a claim that he was fired in retaliation for constitutionally protected speech.  Judge May determined that Cochran’s speech satisfied the requirement that it be on a matter of public concern and that he was speaking as a private citizen (even though his book’s “About the Author” section identifies him as Atlanta’s Fire Chief), making his claim subject to the Supreme Court’s Pickering balancing test.  The City argued that the AFRD has a “need to secure discipline, mutual respect, trust and particular efficiency among the ranks due to its status as a quasi-military entity different from other public employers,” and thus that Cochran’s “interest in publishing and distributing a book ‘containing moral judgment about certain groups of people that caused at least one AFRD member enough concern to complaint to a City Councilmember'” could not outweigh the City’s interests in securing discipline and efficiency.

However, Judge May pointed out that on a motion to dismiss she is to evaluate the complaint based solely on the plaintiff’s allegations, and Cochran had alleged that his book did not threaten the City’s ability to administer public services and was not likely to do so.  Cochran claimed that the book did not interfere with AFRD internal operations, and that he had not told any AFRD employee that complying with his teachings or even reading his book “was in any way relevant to their status or advancement” within the Department.  Thus, Judge May could not find at this stage in the case as a matter of law “that Defendants’ interests outweigh Plaintiff’s First Amendment freedom of speech interests.  However,” she continued, “the factual development of this case may warrant a different conclusion.”

Cochran’s second count claims unconstitutional viewpoint discrimination, focusing particularly on a section of the City Code that requires department heads to obtain prior written approval from the city’s Board of Ethics before “engaging in the provision of services for private interests for remuneration,” which he had not done.  Cochran protested the self-publication of a book did not come within this policy. The City claimed he had no standing to challenge this provision since he had never applied for written permission, but Judge May disagreed, rejecting the City’s motion to dismiss this count on the basis of standing.

Cochran’s third count alleges violation of his religious liberty rights, claiming he was terminated because he expressed his religiously-based viewpoint.  The City’s response was that he failed to allege that his religion compelled him to publish his views while serving as Fire Chief without obtaining prior written approval or to distribute the book to various city employees.  Judge May ruled that such allegations were not necessary to state a religious liberty claim, and that Cochran’s allegations “raise a plausible inference that Plaintiff sincerely held the religious beliefs that he contends were the reason for his firing,” so this claim would not be dismissed.  Similarly, Judge May found that Cochran adequately alleged facts to support his fourth claim, that the city’s action violated his 1st Amendment right to freedom of association “by terminating him for expressing religious beliefs in association with his church.”  However, May found insufficient Cochran’s allegations to support his claim of a violation of the 1st Amendment Establishment Clause, stating that at the hearing on the motion to dismiss “it became clear that although the Complaint contains an Establishment Clause claim, the exact contours of that claim. . . are unclear,” and that it appeared to be duplicative of other claims.  Although May dismissed this claim, she granted leave to Cochran to file an amended claim appropriately raising Establishment Clause issues.

Turning to Cochran’s Equal Protection Claim under the 14th Amendment, May found that Cochran had failed to allege sufficient facts to sustain this claim.  Most significantly, he had failed to identify a “comparator” in order to establish discrimination.  A “comparator” is somebody similarly situated to the Plaintiff who had articulated the opposite point of view without incurring adverse action from the City.  Cochran pointed to Mayor Reed, who had publicly articulated opposition to Cochran’s views, but the judge pointed out that Reed, as the elected chief executive of the city, was not similarly situated to Cochran, an appointed department head.  “As the Mayor,” wrote Judge May, “Reed is Plaintiff’s superior. . .  As the City’s ultimate decision-maker, Reed could not be similarly situated to Plaintiff, who is subject to Reed’s decision-making power.”  She also pointed out that Reed had not “ever tried to publish a book on morality that was approved by the City or even that Reed is from a different religious group from Plaintiff.  At bottom, the Court finds that Reed is too dissimilar to serve as a similarly situated comparator for numerous reasons.”  It was not sufficient for Cochran to allege that “numerous City employees” who were similarly situated to him were treated differently in this regard.  It appears that he is the only appointed City department head who had published a work of this kind.

Judge May dismissed Cochran’s claim that the City’s policy about outside work by city officials that was cited in support of his discharge was unduly vague, pointing out that prior similarly challenges to the policy had been rejected by the 11th Circuit Court of Appeals, which is binding on Georgia federal courts.  She also found that the public comments by Mayor Reed in connection with this controversy were not sufficiently personally “stigmatizing” of Cochran to sustain a “liberty interest” claim under the Due Process Clause.  However, she refused to dismiss a procedural due process claim, finding that the ordinances cited by the City in its briefs “do not establish that Plaintiff lacks a property interest in his employment.”  Under the 14th Amendment, the Courts have held that a public employee with a property interest in his job may not be deprived of that job in the absence of fair procedures, which Cochran claims he was not accorded in this case, where the decision to fire him was made unilaterally by the mayor.

As to personal liability by Mayor Reed, the ultimate decision-maker on Cochran’s discharge, Judge May found that it would not necessarily be clear to the Mayor that his actions were unconstitutional while exercising the discretionary function to discharge his Fire Chief, since the ultimate determination of that will rest on the court’s application of the Pickering balancing test.  Depending how that weighing turns out, the City may be held liable, but a municipal official in the position of the Mayor exercising a discretionary function of his office would not unless the outcome was clearly established as a matter of law.  The courts have developed this qualified immunity doctrine to avoid stifling the ability of public officials to exercise discretionary functions in situations where there is not a definite constitutional ban in place.

Ultimately, the question confronting Judge May is whether the Atlanta city administration is required to keep in office an appointed department head who has published views that are out of synch with the City’s policies.  If Cochran were a rank and file employee, he might well win some of his claims.  But as a department head with supervisory authority over a major public safety agency, he will confront significant difficulty in arguing that the elected officials responsible to the voters are constitutionally required to keep him in office, as Judge May intimated in ruling on his first free speech claim.

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Brilliant Chamber Music at Peoples’ Symphony Concerts

This afternoon Peoples’ Symphony Concerts presented a brilliant chamber music program at Town Hall in Manhattan.  Lise de la Salle, a marvelous young pianist, collaborated with string players from The Knights, a flexible chamber ensemble, to present a very “multicultural” program of music by Martinu, Mozart, Jedd Greenstein, Takemitsu, and Ravel.

Everything was impressively played, but what stays with me the most is the awesome Ravel Trio for Piano, Violin and Cello, performed with great passion by de la Salle and the Jacobsens –  Colin (violin) and Eric (cello).  There are many ways one can play this.  I’ve heard it done with crystalline clarity and lightness, with classical grace, and with surging romanticism.  This performance followed the romantic route, with big tone from all three players, and it really swept me away emotionally.  What a great finale to the program!

The concert started with Three Madrigals for Violin and Viola by Bohuslav Martinu, performed by The Knights violinist Guillaume Pirard and violist Kyle Armbrust.  This is not an easy work to penetrate.  “Madrigals” as a title suggests something archaic and lyrical, but I don’t think one could use either of those words to characterize these pieces, which I found quite enigmatic.  Then Pirard and Armbrust were joined on the stage by Eric Jacobsen and de la Salle for a dynamic performance of an old favorite, Mozart’s Piano Quartet in G Minor, K. 478, which I’ve known and loved since I was a teenager.  This brought out a great feeling of nostalgia for me.  This is definitely one of Mozart’s finest chamber music pieces, one great tune after another, played by these musicians with enthusiasm and technical precision.

The second half of the concert was planned as one continuous span with no real break between the pieces.  First was Greenstein’s “Be There” for violin and piano, this time with Colin Jacobsen and de la Salle.  The piece is a moderately-paced moto perpetuo, a long lyrical line unfolding as if in one long breath, dying down at the end as Jacobsen wandered away from the piano to a separate music stand to join Pirard in Takemitsu’s “Rocking Mirror Daybreak” for the two violins.  I found this piece the most difficult to penetrate, having a hard time finding any sort of thematic line running through it.  As it faded away, de la Salle began the Ravel Trio as Colin Jacobsen returned to sit next to Eric in time for the first sustained notes of that piece.

This was certainly one of the most memorable Peoples’ Symphony Concerts programs I’ve heard, and I hope they will continue to include such imaginative chamber music programs on their series.  In structure it was somewhat like the Music from Marlboro programs, presenting contrasting chamber works for different combinations of instruments on one program — also like the Chamber Music Society of Lincoln Center — and I think this is an ideal way to present chamber music.  Town Hall is also an excellent venue for this, with excellent acoustics and great sight lines from anywhere in the house.  Large enough to hold an substantial audience, yet intimate enough to capture the sense of closeness on which chamber music thrives….

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