New York Law School

Art Leonard Observations

9th Circuit Revives Transgender Inmate’s Suit for Sex Reassignment Surgery

The U.S. Supreme Court’s same-sex marriage decision was not the only case of consequence for LGBT rights decided on June 26, 2015.  On the opposite coast, a three-judge panel of the U.S. Court of Appeals for the 9th Circui, in San Francisco unanimously revived a California inmate’s lawsuit seeking sex reassignment surgery, which had been dismissed at the screening stage by Chief Judge Ralph R. Beistline of the U.S. District Court for the Eastern District of California.  Rosati v. Igbinoso, 2015 WL 3916977.

Philip Walker Rosati (now known, according to the court, as Mia Rosati), is a California prison inmate who identifies as a transgender woman but has not been formally diagnosed with gender dysphoria.  Her attempts to secure appropriate medical treatment have gone for naught, as prison officials have refused even to allow her to be examined by a doctor who is qualified to diagnose gender dysphoria, which would be a prerequisite to receiving such treatment.  According to her allegations, despite knowing about her symptoms (“including repeated efforts at self-castration”) prison officials “recklessly disregarded an excessive risk to her health by denying [sex reassignment surgery] solely on the recommendation of a physician’s assistant with no experience in transgender medicine.”  Furthermore, Rosati alleged and the state acknowledged in response to this appeal, California has never provided such surgery to a state inmate, and as was developed in the recent Norsworthy case before another district court, the state Department of Corrections appears to maintain a blanket policy against providing such surgery for inmates.

Rosati filed her federal complaint pro se (representing herself).  Under the Prison Litigation Reform Act, such claims are subjected to a “screening” process by the federal court and routinely dismissed if the court concludes that the claims are not plausible on their face.  Judge Beistline reached that conclusion and dismissed the case permanently, not even affording Rosati the opportunity to respond with an amended complaint.  She subsequently obtain legal representation from Lambda Legal’s West Coast Office in Los Angeles and the Prison Law Office in Berkeley, who filed this appeal on her behalf.

Federal courts have ruled that prison inmates whose serious medical conditions are met by deliberate indifference from prison officials have a claim under the 8th Amendment, which forbids cruel and unusual punishment.  The rationale is that inmates are totally dependent on prison officials for health care, and that at a minimum prison officials should be required to attend to serious medical conditions with at least adequate treatment.   The battle for transgender inmates has been to establish that gender dysphoria is a serious medical condition and that, depending upon the degree of dysphoria, various medical treatments, including sex reassignment surgery, may qualify as medically necessary.  There is an emerging consensus among most federal courts that have addressed the issue that psychological counseling and hormone therapy, and various modifications of an inmate’s living conditions involving dress and grooming, may qualify as medically necessary, but the courts are still at early stages in accepting the proposition that state prison systems should be required to provide sex reassignment surgery and so far no state inmate has received such surgery as a result of a federal court order.

The 9th Circuit panel found that Judge Beistline erred in screening out and dismissing this complaint.  Quoting a prior 9th Circuit decision, the court said, “A district court should not dismiss a pro se complaint without leave to amend unless ‘it is absolutely clear that the deficiencies of the complaint could not be cured by amendment.'”  At the oral argument of this appeal, attorneys from the state conceded that the district judge should have provided Rosati with an opportunity to amend her complaint so reversal was virtually mandated.  But the court went further, stating that “even absent the concession, we conclude that the complaint, although not drafted with the skill and brevity expected of counsel, stated an Eighth Amendment claim upon which relief could be granted.”

In evaluating a complaint, the district court is supposed to determine whether the plaintiff has alleged facts that could plausibly support a legal claim.  In this case, Rosati alleged that she suffered from severe gender dysphoria for which sex reassignment surgery was necessary treatment.  She quoted at length from the Standards of Care that have been published by the World Professional Association for Transgender Health.  “Rosati plausibly alleges that prison officials were aware of her medical history and need for treatment, but denied the surgery because of a blanket policy against SRS,” and the state conceded at the oral argument that “no California prisoner has ever received SRS.”  In the past, the 9th Circuit has ruled that a “blanket, categorical denial of medically indicated surgery” is “the paradigm of deliberate indifference.”

The court also noted Rosati’s allegation that the treatment was denied on the basis of a recommendation from an unqualified physician’s assistant.  “Although Rosati lacks a medical opinion recommending SRS, she plausibly alleges that this is because the state has failed to provide her access to a physician competent to evaluate her.”  This, too, could be construed to be deliberate indifference.

Of course, at this point the court is dealing with Rosati’s factual allegations, not a trial record, and the purpose of this appeal was to get Rosati’s complaint past the screening process so she can obtain access to the court to prove her claim.  Thus, the appeals court was careful to say, “We express no opinion on whether SRS is medically necessary for Rosati or whether prison officials have other legitimate reasons for denying her that treatment.  But, like other courts that have considered similar actions, we hold that the allegations in Rosati’s complaint are sufficient to state a claim.”  The court cited decisions from the 1st, 4th and 7th Circuits to support this conclusion, although in none of those cited cases did a court ultimately order prison officials to provide sex reassignment surgery for an inmate.  The court cited as well the March 31 ruling in Norsworthy v. Beard by another California federal district court judge, who had ordered sex reassignment surgery to be undertaken immediately, only to have the order stayed by the 9th Circuit in response to an emergency motion by the state.  As such, the panel ruling on Rosati’s appeal may foreshadow how another panel of the court may deal with the state’s appeal of the Norsworthy order.

The court also commented, in send the case back to the district court, that the court should also consider Rosati’s claim that the state was violating her right to equal protection of the law guaranteed by the 14th Amendment.  The opinion does not describe any of Rosati’s factual allegations in support of that claim.  As a result of this decision, Rosati should be able to submit a new complaint — this time drafted by her attorney representatives — for a fresh consideration by the district court, bearing in mind the 9th Circuit’s statement that her original pro se complaint was sufficient to state an 8th Amendment claim.

If the 9th Circuit ultimately rules in favor of Kosilek or Norsworthy, the chances are excellent that the state could obtain review from the Supreme Court.  On May 4, 2015, the Supreme Court denied review in Kosilek v. Spencer, in which the full bench of the 1st Circuit rejected a three-judge panel and a trial judge ruling and allowed Massachusetts prison officials to deny sex reassignment surgery to Michelle Kosilek.  A 9th Circuit ruling on the merits in favor of Norsworthy or Rosati could create a split of circuit authority, setting up ideal circumstances for Supreme Court consideration of the issue.  The Supreme Court has never previously ruled on the questions of whether gender dysphoria is a serious medical condition and whether prison officials may be required to provide  for sex reassignment surgery if qualified medical personnel conclude that such treatment is necessary for an inmate.

Mia Rosati is represented on appeal by Jon W. Davidson and Peter C. Renn of Lambda Legal and Alison Hardy of the Prison Law Office.  Mr. Renn argued the appeal in the 9th Circuit.  The World Professional Association filed an amicus brief in support of the appeal, which was written by pro bono attorneys Cori A. Lable, Daniel V. McCaughey, Michael T. Packard and Kevin P. Budris from Ropes & Gray LLP in Boston.

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Supreme Court Issues Historic Marriage Equality Ruling

The Supreme Court ruled today that “same-sex couples may exercise the right to marry” and that “there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.”  Writing for the Court, Justice Anthony M. Kennedy, Jr., grounded these marital rights in the 14th Amendment’s guarantee that no State may deprive any person of “liberty” without due process of law or deny to any person the “equal protection of the laws.”  He saw the claimed rights in this case as logical extensions of the rights recognized by the Court through his opinions in United States v. Windsor (2013) and Lawrence v. Texas (2003).   Obergefell v. Hodges, No. 14-556, 2015 WL 2473451, 2015 U.S. LEXIS 4250 (June 26, 2015).  By fitting coincidence, the opinion was issued on the second anniversary of Windsor and the twelfth anniversary of Lawrence.

Kennedy was appointed to the Court by President Ronald Reagan in 1987.  Kennedy’s opinion was joined by the four justices appointed by Democratic presidents: Ruth Bader Ginsburg and Stephen Breyer (appointed by Bill Clinton) and Sonia Sotomayor and Elena Kagan (appointed by Barack Obama).  Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito all wrote dissenting opinions for themselves, and each of them also signed one or more of the other dissenting opinions.

The Court had granted petitions filed by the plaintiffs in cases emanating from the states of Ohio, Tennessee, Michigan and Kentucky.  In each of those states, federal district courts had ruled during 2014 either that state laws refusing to recognize same-sex marriages contracted in other states violated equal protection rights or that the refusals of the states to allow same-sex couples to marry violated due process and/or equal protection rights.  Those rulings were consolidated for appeal before the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, which reversed the trial courts in an opinion by Circuit Judge Jeffrey Sutton.  Sutton held that the U.S. Supreme Court’s ruling in 1972 that a challenge to the Minnesota ban on same-sex marriage did not present a “substantial federal question” remained binding as precedent on lower federal courts, but went on to reject the plaintiffs’ constitutional arguments, opining that the question whether same-sex couples could marry or have their marriages recognized was one to be resolved through the democratic process, not through litigation.  In granting the plaintiffs’ petition to review that ruling, the Court ordered argument on two questions:  whether same-sex couples have a right to marry, and whether states are obligated to recognize same-sex marriages.  A majority of the Court has now answered both of those questions in the affirmative.

This outcome was widely predicted because of the Court’s behavior since October 2014, when it declined to review pro-marriage equality decisions by the 4th, 7th and 10th Circuits, thus lifting stays and allowing marriage equality rulings to go into effect in Virginia, Indiana, Wisconsin, Oklahoma and Utah, and eventually in all the other states in those circuits.  When the 9th Circuit ruled for marriage equality, the Supreme Court rebuffed every request by state officials to delay marriage equality rulings going into effect in that circuit, and subsequently refused to stay marriage equality rulings from Florida and Alabama, even though the 11th Circuit had not yet ruled on the states’ appeals.  The denial of the Alabama stay, weeks after the Court had granted review of the 6th  Circuit’s decision, decisively confirmed that there was a majority for marriage equality on the Supreme Court, to the consternation of Justice Thomas expressed in his dissent from the denial of Alabama’s staff petition.

The outcome being highly predictable, the main questions arousing speculation were which constitutional theories the Court would use to strike down the bans, and whether an additional member of the Court — most likely Chief Justice Roberts — would join the majority.  Roberts stayed put with his fellow conservative brethren.  Kennedy’s opinion took a route that could have been predicted based on his opinions in Windsor and Lawrence.  Kennedy’s preferred approach in gay rights cases (leaving aside his first such opinion, in Romer v. Evans, which is really sui generis) is to rely heavily on his broad conception of liberty protected by the Due Process Clause.

Kennedy began with a quick review of the situations of some of the plaintiffs, showing the deprivations they faced by not being allowed to marry or have their marriages recognized, and then presented a historical overview of the changing nature of marriage.  He wrote that “changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations, often through perspectives that begin in pleas or protests and then are considered in the political sphere and the judicial process.  This dynamic can be seen in the Nation’s experiences with the rights of gays and lesbians.”  After reviewing the growing recognition of gay rights by the courts, and referring to an amicus brief filed by the American Psychological Association, he wrote, “Only in more recent years have psychiatrists and others recognized that sexual orientation is both a normal expression of human sexuality and immutable.”  This could be a key statement for a holding that sexual orientation is a “suspect classification” for equal protection purposes, but Kennedy never followed up along that line.

Instead, he turned to a due process analysis, and premised his conclusion on “four principles and traditions” which he said “demonstrate that the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples.”  The first “is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy.”  The second is “that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.”  The third is “that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education.”  Finally, he wrote, “This Court’s cases and the Nation’s traditions make clear that marriage is a keystone of our social order.”

As to each of these four principles, Kennedy penned eloquent explanations that play into the themes he previously developed in his opinions in Windsor and Lawrence.  For example, he wrote, “The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality.  This is true for all persons, whatever their sexual orientation.”  Speaking about marriage’s “support” for the “two-person union,” he wrote, “Marriage responds to the universal fear that a lonely person might call out only to find no one there.  It offers the hope of companionship and understanding and assurance that while both still live there will be someone to care for the other.”  After observing that “hundreds of thousands of children are presently being raised” by same-sex couples, he wrote: “Without the recognition, stability, and predictability marriage offers, their children suffer the stigma of knowing their families are somehow lesser.  They also suffer the significant material costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life.  The marriage laws at issue here thus harm and humiliate the children of same-sex couples.”

In explaining why the right to marriage is a fundamental right, Kennedy observed that “States have contributed to the fundamental character of the marriage right by placing that institution at the center of so many facets of the legal and social order.  There is no difference between same- and opposite-sex couples with respect to this principle.”  As he had observed in 2003 when he wrote for the Court striking down the Texas sodomy law, he reiterated in this case.  “The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest.  With that knowledge must come the recognition that laws excluding same-sex couples from the marriage right impose stigma and injury of the kind prohibited by our basic charter.”   Several times in the course of this part of his opinion, Kennedy referred to the “dignity” of same-sex couples being denied or disparaged by denying them the right to marry.

Turning to the Equal Protection Clause as an alternative source of the marriage right, Kennedy avoided any explicit pronouncement about whether sexual orientation discrimination claims should be subject to heightened scrutiny.  Actually, there are two different strands of equal protection theory: the classification strand and the rights strand.  Under the former, the Court asks whether the challenged law creates a classification that is “suspect” and thus subject to heightened or strict scrutiny.  Under the latter, the Court asks whether the challenged law discriminates concerning a fundamental right, and thus will be struck down unless the government proves a compelling justification.  Kennedy focused on the second strand.

Referring back to the Court’s earlier marriage cases, he wrote, “The equal protection analysis depended in central part on the Court’s holding that the law burdened a right of ‘fundamental importance.’ It was the essential nature of the marriage right, discussed at length in Zablocki v. Redhail, that made apparent the law’s incompatibility with requirements of equality.”  He emphasized the interconnectedness of the liberty/due process and equal protection theories, referring to his 2003 opinion in the Texas sodomy case, Lawrence v. Texas.  “Lawrence therefore drew upon principles of liberty and equality to define and protect the rights of gays and lesbians, holding the State ‘cannot demean their existence or control their destiny by making their private sexual conduct a crime.’  This dynamic also applies to same-sex marriage.  It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality.  Here the marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right.  Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm.  The imposition of this disability on gays and lesbians serves to disrespect and subordinate them.  And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry.”

Thus, in the ongoing dispute over whether the plaintiffs were claiming a new constitutional right of “same-sex marriage” or access to an existing fundamental right to marry, the Court in this case adopts the broader view.

Kennedy rejected the states’ argument that this decision was being made without sufficient “democratic discourse,” pointing out that same-sex marriage has been a topic of debate for decades, and asserting that “there has been far more deliberation than this argument acknowledges,” referencing referenda, legislative debates, “countless studies, papers, books, and popular and scholarly writings.”  Indeed, he pointed out, “more than 100 amici” had filed briefs with the Court presenting a wide range of perspectives on all sides of the issues.  And, he pointed out, “the Constitution contemplates that democracy is the appropriate process for change, so long as that process does not abridge fundamental rights.”  Having found that the marriage bans abridge fundamental rights, he found that judicial action was justified.  “The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right.”

Kennedy also rejected the argument that the Court should refrain from this ruling because of possible adverse impact on traditional marriages, finding that the argument “rests on a counterintuitive view of opposite-sex couples’ decisionmaking processes regarding marriage and parenthood.  Decisions about whether to marry and raise children are based on many personal, romantic, and practical considerations; and it is unrealistic to conclude that an opposite-sex couple would choose not to marry simply because same-sex couples may do so.”

The Court devoted just one paragraph to the potential clash over religious liberty, asserting that the 1st Amendment “ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.”  However, Kennedy shied away from opining about how the balance of rights might be struck in particular cases of the type that have arisen in recent years involving recalcitrant wedding photographers, florists, bakers and the like.

Kennedy briefly addressed the second question certified by the Court for argument, pointing out that all parties had acknowledged that if the Court found a right for same-sex couples to marry, the right to have those marriages recognized by the states would follow as of course.  “It follows that the Court also must hold — and it now does hold — that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.”

Kennedy concluded with a paragraph integrating the main points of his analysis in eloquent fashion:  “No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”    Thus, at the end, Kennedy recurred to the same principle he had invoked two years ago in striking down Section 3 of the Defense of Marriage Act: equal dignity.

Chief Justice Roberts penned a “who decides” dissent, along the lines previously articulated by Judge Sutton in the 6th Circuit opinion.  “The fundamental right to marry does not include a right to make a State change its definition of marriage,” he wrote, insisting that defining marriage was the state’s prerogative as matter of democratic process.”  He found “the majority’s approach” to be “deeply disheartening.”  His dissent ended up being slightly longer than Kennedy’s opinion for the Court, embracing simplistic notions of the history of marriage that were directly contradicted by the detailed amicus briefs submitted on behalf of the plaintiffs.  For example, he referred to a “universal definition” of marriage as the “union of a man and a woman,” thus ignoring the numerous cultures in which plural marriage has long been accepted.  Rejecting Kennedy’s very empathetic view of the plaintiffs’ claims, Roberts asserted, “There is, after all, no ‘Companionship and Understanding’ or “Nobility and Dignity” Clause in the Constitution.”  He raised the question whether the Court’s opinion would reopen the question of plural marriage, which is being litigated by fundamentalist Mormons, and insisted that Kennedy’s argument sounded more in moral philosophy than in law.

In conclusion, he wrote: “If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.”  Justices Scalia and Thomas joined his dissent.

Scalia, the self-proclaimed originalist, was in fine fulminating form, although perhaps less colorfully than in his dissent a day earlier in the case upholding federal tax credits under the Affordable Care Act.  He was quick to observe that the generation that wrote and adopted the 14th Amendment would not have seen it as creating a right for same-sex couples to marry, and under his jurisprudence that should end the matter.  But, as he had done in the Windsor and Lawrence cases, he sharply criticized the Court for short-circuiting political debate.  Noting the “unrepresentative” nature of the Court, he questioned the legitimacy of it making such a policy decision.  “This is a naked judicial claim to legislative – indeed, super-legislative – power; a claim fundamentally at odds with our system of government,” he exclaimed.  “They have discovered in the Fourteenth Amendment a ‘fundamental rights’ overlooked by every person alive at the time of ratification, and almost everyone else in the time since.”   He also criticized the opinion as being “couched in a style that is as pretentious as its content is egotistic.”  As he has frequently done in past dissents, he decried Justice Kennedy’s conception of liberty, concluding, “The stuff contained in today’s opinion has to diminish this Court’s reputation for clear thinking and sober analysis.”  Actually, many past decisions of the Court emanating from its conservative voices have already done that many times over.  One need only cite Bush v. Gore and Citizen’s United. . .   Thomas joined Scalia’s dissent.

Justice Thomas has long contested the Court’s entire history of substantive due process doctrine, so this case was just one more example for him of illegitimate decision-making.  He argued that refusing to let same-sex couples marry does not deprive them of any liberty, insisting that the reference to “liberty” in the due process clause should be restricted to its “original” meaning of restrictions on mobility.   Thus, the state restricts your liberty when it locks you up, but not when it refuses to let you marry.  He located the origins of this concept in Magna Carta, the 800-year old English document signed by King John in 1215 to settle disputes with the English nobility about royal prerogative, and then traced the concept through American law up to the time of adoption of the 14th Amendment.  “When read in light of the history of that formulation,” he wrote, “it is hard to see how the ‘liberty’ protected by the Clause could be interpreted to include anything other than freedom from physical restraint.”  Even accepting a broader meaning, he held that it should be restricted to “individual freedom from governmental action, not as a right to a particular governmental entitlement.”  He insisted that “receiving governmental recognition and benefits has nothing to do with any understanding of ‘liberty’ that the Framers would have recognized.”  Scalia joined Thomas’s dissent.

Finally, Justice Alito’s dissent rechanneled his dissent from two years ago in U.S. v. Windsor, quoting from it extensively, arguing that there were various different views of marriage and that it was up to the people, through the democratic process, to decide which ones to embrace through law.  “Today’s decision usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage,” he insisted.  He particularly bemoaned the likelihood that this ruling would lead to the oppression of people who oppose same-sex marriage, predicting future disputes.  “Recalling the harsh treatment of gays and lesbians in the past, some may think that turnabout is fair play,” he wrote.  “But if that sentiment prevails, the National will experience bitter and lasting wounds.”  Both Scalia and Thomas signed his opinion.

All the dissents sounded like rearguard actions seeking to provoke public discontent with the Court’s opinion.  But in that sense they are well within the tradition — at least the recent tradition — of Supreme Court dissenting opinions from the very polarized Court.  A 5-4 ruling may be bitterly argued, but it is no less a precedential holding of the Court than a unanimous  ruling.  Although there had been rumblings in the weeks leading up to this day that some state officials might try to avoid complying with a pro-marriage equality decisions, the immediate response of governors in the four states involved with this case seemed to be prompt, if reluctant, compliance with the Court’s decision.

A long list of attorneys participated in representing the various plaintiffs in this case, culminating in the presentations by three oral advocates at the Supreme Court — two representing the plaintiffs and one representing the Solicitor General as amicus curiae.  In the end, all of the nation’s LGBT litigation groups played a part, as did numerous groups who submitted amicus briefs to the Court, many of which were cited in the opinions.   One group among all others will be particularly affected by this ruling.  Evan Wolfson announced months ago that upon the achievement of marriage equality nationwide, his organization — Freedom to Marry — will wind up its affairs and cease to exist.



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Sodomy Suppression Act Bites the Dust

California Superior Court Judge Raymond M. Cadei awarded declaratory relief to Attorney General Kamala Harris, who sought to avoid circulating a proposed ballot initiative called the “Sodomy Suppression Act,” which had been proposed by one Matt McLaughlin, an attorney of questionable taste.  The measure purported to authorize people to kill gays and lesbians by “bullets to the head” or “any other convenient method.”  Normally, the Attorney General’s office does not get to screen proposed initiatives for content, but Harris balked at writing a ballot title and summary and authorizing the circulation of petitions to put the proposal on the ballot.  Instead, she filed a declaratory judgement against McLaughlin arguing that the measure should be disqualified.  After having filed his proposal and achieved whatever notoriety he was seeking, McLaughlin seems to have abandoned it, since he defaulted on responding to Harris’s lawsuit.  In an order signed on June 22, 2015, Judge Cadei wrote that Harris was entitled to the relief she requested, stating that the proposed initiative “is patently unconstitutional on its face,” that preparing a title and summary would be “inappropriate, waste public resources, generate unnecessary divisions among the public, and tend to mislead the electorate,” so Cadie held that Harris “is relieved of any obligation to issue a title and summary” for this proposed statute.  Harris v. McLaughlin, Case No. 34-2015-00176006 (Cal. Super. Ct., Sacramento Co.).

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N.Y. 4th Department Rejects Custody & Visitation Petition From Same-Sex Co-Parent

Relying on a quarter-century old N.Y. Court of Appeals precedent under which a same-sex co-parent is considered a “legal stranger” to the child she was raising with her former partner, the Appellate Division, 4th Department has affirmed a decision by Chautauqua County Family Court Judge Judith S. Claire to dismiss a petition for custody and visitation filed by Brooke S. Barone.  The ruling in Barone v. Chapman, 2015 N.Y. App. Div. LEIS 5226, 2015 WL 3797129, was issued on June 19, 2015.

Brooke Barone and Elizabeth Chapman were same-sex partners and Barone had been co-parent of Chapman’s son.  They did not marry and Barone never adopted the child.  After they ceased to be partners Barone filed this petition seeking to have the Family Court determine custody and visitation issues.  The court appointed R. Thomas Rankin, an attorney in Jamestown, to represent the interest of the child.  Barone represented herself in the proceeding.

Chapman filed a motion to dismiss the petition, arguing that Barone did not have standing to seek custody or visitation because she had no legal relationship to the child.  Rankin opposed the motion on behalf of the child, arguing that the child’s best interests should be “paramount” over the legal formalities, and that “the standing accorded to parents should extend to those who have a recognized and operative parent-child relationship, regardless of their sexual orientation.”  He further argued that the court should use the doctrine of equitable estoppel, arguing that a legal parent who has fostered and encouraged her unmarried partner to form a relationship with her child should be forbidden by the court to deny the reality of that relationship by raising an objection to standing.  Judge Claire, finding herself bound by New York precedents, dismissed the petition.

The Appellate Division was equally dismissive of Rankin’s argument.  “Those contentions are without merit,” it wrote, quoting from an Appellate Division ruling that “the Court of Appeals has recently reiterated that a nonbiological, nonadoptive parent does not have standing to seek visitation when a biological parent who is fit opposes it, and that equitable estoppel does not apply in such situations even where the nonparent has enjoyed a close relationship with the child and exercised some matter of control over the child with the parent’s consent.”  The court noted earlier cases involving same-sex couples, in which the Court of Appeals had stated that “parentage under New York law derives from biology or adoption” and the Court of Appeals’ 1991 ruling, Alison D. v. Virginia M., had created a “bright-line test” under which a person who was neither the biological or adoptive parent of a child is considered a legal stranger without standing to seeking custody or visitation.  A few courts have departed from that more recently in the context of married same-sex couples, finding that when a married woman bears a child, her spouse should be presumed to be the child’s legal parent, but the Court of Appeals hasn’t yet ruled on such a case.

Concluded the Appellate Division panel, “We reiterate that, as the Court of Appeals unequivocally stated, ‘any change in the meaning of “parent” under our law should come by way of legislative enactment rather than judicial revamping of precedent.’  Finally, we note that petitioner ‘failed to sufficiently allege any extraordinary circumstances to establish her standing to seek custody’ as a nonbiological, nonadoptive parent.”  The Court of Appeals has recognized that such special circumstances might justify bending the rules, but in the Alison D. case and subsequent cases relying upon it, the court have found that same-sex couples raising a child together do not automatically qualify under the “extraordinary circumstances” rule.

After Alison D. was decided, the Court of Appeals in a late case construed the Adoption Law to allow same-sex partners to adopt child they were co-parenting without terminating the parental rights of the child’s legal parent, providing a clear path for same-sex partners to avoid this result.  However, in the absence of such an adoption, the courts have adhered to the “legal stranger” rule, and the legislature has yet to modify the statutes on parental standing to take account of non-traditional families in New York.

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New York Court Rejects Challenge to Gay Man’s Will

New York County Surrogate’s Court Judge Nora Anderson has rejected a challenge to the will of Mauricio Leyton, a gay man who had designated his former lover as executor and a principal beneficiary under a will he made in 2001, a year before the men had a commitment ceremony and several years before they ceased to live together as partners.  Leyton’s mother and sister had challenged the will, arguing that David Hunter was disqualified under a New York statute providing that a “former spouse” cannot inherit.  On June 16, Surrogate Anderson granted Hunter’s motion to dismiss the challenge. The case is Matter of Mauricio Leyton, Deceased, No. 2013-4842/A/B (N.Y. County Surrogate’s Court).

Leyton and Hunter were longtime friends of ten years’ standing when Leyton signed his will on January 11, 2001.  He appointed Hunter to be his executor and a major beneficiary, leaving him all of his personal property and one-half of the residuary estate, which ultimately included real property as well.  The will referred to Hunter as “my partner David,” according to a June 23 report about the case in the New York Law Journal.  In 2002 the men had a commitment ceremony at the Ritz-Carlton Hotel, which they described in printed invitations as a “Ceremony of Union and Commitment,” during which the officiant said that the couple was entering a “state of companionship, compromise, creativity and commitment that the world recognizes as marriage.”  The officiant also noted that the state did not recognize this union, but commented, “Fortunately, this is of no importance.”

Leyton and Hunter did not register as New York City civil union partners and ceased to live together around 2008, but remained close friends, owning some property jointly and maintaining some joint accounts.  They signed a document at the time of their breakup in which, according to the Law Journal account, Leyton “expressed interest in buying out Hunter’s ownership in a cooperative apartment and lending Hunter $40,000 to buy another apartment.”  They also co-owned some property on Long Island as joint tenants with rights of survivorship.  After New York passed its Marriage Equality Law in 2011 Leyton served as the official witness when Hunter married another man.  In all this time Leyton never revoked the original will or signed a new one.  Leyton suffered a fatal heart attack in December 2013 while traveling.

Hunter filed the will for probate in 2014, and Leyton’s mother and sister, residents of Chile, sought to contest Hunter’s appointment as executor and status as a beneficiary.  They argued that the court should treat Hunter as a divorced spouse, emphasizing the words of the officiant at the commitment ceremony, and arguing that but for New York’s unconstitutional refusal to allow same-sex marriage at the time, the men would have been married.  They relied on a recent Connecticut Supreme Court decision, which had accepted such a “would have been married” argument in connection with a loss of consortium claim filed by the survivor of a lesbian relationship in the context of a medical malpractice claim.

Surrogate Anderson did not mention the Connecticut case in her opinion, focusing her analysis entirely on the New York statute.  “Respondent (Hunter) points out that at the time the commitment ceremony was performed, it was not cognizable in State law as formalizing a marriage, and that his subsequent break with decedent therefore was not ‘separation,’ ‘abandonment,’ or ‘divorce’ within the meaning of the statutes cited by petitioners.  Those statutes, EPTL 5-1.2 and 5-1.4, respectively spell out circumstances under which a spouse is disqualified as a ‘surviving’ spouse for the purposes of inheritance and other family rights and under which a disposition to or fiduciary appointment of a spouse under a will is revoked,” she wrote.  She insisted that “it is the province of the Legislature to decide questions regarding same-sex marriage,” referring to the New York court decisions rejecting constitutional challenges to the pre-2011 marriage ban.  “Here, petitioners seek to have this court apply the Marriage Equality Act retroactively to the commitment ceremony, deeming that ceremony as formalizing a marriage and the subsequent separation as a divorce.  Given that the Legislature did not authorize same-sex marriage until 2011, this court cannot deem the commitment ceremony to have sanctified a marriage, so decedent and the executor cannot be deemed to be divorced.”

Thus, Surrogate Anderson ruled that the petition should be denied and Hunter’s motion to dismiss be granted.

Hunter is represented by Matthew Raphan, an associate of Brian A. Raphan P.C. in Manhattan.  The mother and sister, Fidelisa Eliana Latorre Figueroa and Ana Marie Leyton Lattore, are represented by Stanley Ackert III, who is contemplating filing an appeal.


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Divided Texas Supreme Court Evades Deciding Gay Divorce Issue

With a ruling on same-sex marriage from the United States Supreme Court just days away, the Texas Supreme Court finally acted on June 19, 2015, on a pair of appeals argued nineteen months ago in November 2013, holding in State v. Naylor, 2015 Tex. LEXIS 581, that the state’s attorney general did not have standing to appeal an Austin trial judge’s order granting a judgment “intended to be a substitute for a valid and subsisting divorce” to a lesbian couple who had married in Massachusetts, and granting a motion to dismiss an appeal in In re Marriage of J.B. and H.B., in which the Texas Court of Appeals in Dallas had ruled in 2010 that Texas courts lack jurisdiction to rule on divorce petitions from same-sex couples married elsewhere.  The court’s opinion in the Naylor case by Justice Jeffrey V. Brown was joined by four other members of the court, one of whom also penned a concurring opinion.  One member filed a dissenting opinion for himself and three others, arguing against the ruling on standing.  One of the dissenters filed an additional dissenting opinion, arguing at length that the Texas ban on performing or recognizing same-sex marriages does not violate the 14th Amendment.  One member did not participate in the case.

The motion to dismiss the J.B. and H.B. appeal was actually filed by James Scheske, who represented the party seeking an uncontested divorce.  The two men married in Massachusetts in 2006 and moved to Texas in 2008.  Shortly after moving to Texas they ceased to live together, and J.B. filed a petition in Dallas County seeking a property division and that his last name be changed back to his original name as part of a divorce decree.  The state intervened and argued that the court had no jurisdiction to decide the case, but the trial judge, Tena Callahan, issued a ruling on October 1, 2009, holding that the Texas ban on same-sex marriage was unconstitutional and that she could decide the case.  The state appealed that ruling, and the Texas Court of Appeals in Dallas ruled on August 31, 2010, that Judge Callahan was wrong.  An appeal to the Texas Supreme Court followed, and the case was argued, after much delay, in November 2013.  But H.B. subsequently died, and Scheske filed an uncontested motion to dismiss the case, since his client’s marriage had been terminated by death so a divorce decree was no longer needed.  The court granted that motion on June 19 without explanation, but one of the judges noted in his concurring opinion in the Naylor case that the J.B. appeal was “moot” as a result of the death of one of the parties.

Angelique Naylor and Sabina Daly, Texas residents, went to Massachusetts to marry in 2004. Naylor filed a divorce petition in Travis County a few years later.  The women had a child and were operating a business together, so, as Justice Brown explained, “Naylor hoped to obtain a judgment addressing their respective rights, some of which they had already settled in a suit affecting the parent-child relationship.”  Although lawyers from the attorney general’s office were aware of the case and were actively monitoring its progress, they didn’t formally try to intervene until after the trial judge issued his bench ruling incorporating the parties’ settlement agreement into a judgment, which the judge explained “is intended to dispose of all economic issues and liabilities as between the parties whether they are divorced or not.”  The following day, the state petitioned to intervene “to oppose the Original Petition for Divorce and to defend the constitutionality of Texas and federal laws that limit divorce actions to persons of the opposite sex who are married to one another.”  The trial judge rejected this petition as too late, and the Court of Appeals in Austin agreed in 2011.  An appeal to the Texas Supreme Court followed, and it was consolidated with the J.B. appeal and argued on the same day in November 2013.

There was widespread speculation that the Texas Supreme Court, observing all the marriage equality litigation going on in Texas and elsewhere in the wake of the U.S. Supreme Court’s U.S. v. Windsor ruling, had decided not to rule on these appeals until the U.S. Supreme Court settled the constitutional questions around same-sex marriage one way or the other, so the Texas court’s June 19 actions caught many by surprise.  Writing for the majority of the court, Justice Brown agreed with the Court of Appeals that the state lacked standing to appeal the trial court’s judgment.  “Texas courts allow post-judgment intervention only upon careful consideration of any prejudice the prospective intervenor might suffer if intervention is denied, any prejudice the existing parties will suffer as a consequence of untimely intervention, and any other circumstances that may militate either for or against the determination,” he wrote.  In this case, by implication, those considerations weighed against ordering intervention.  Although Justice Brown left it unsaid, it seemed clear that the majority of the court saw little reason to litigate the underlying issue in this case when the U.S. Supreme Court was on the verge of ruling.  He devoted most of his opinion to a close analysis of Texas laws governing post-judgment intervention, and almost none to the underlying question whether same-sex couples can get divorces in Texas, merely stating general agreement with Judge Devine’s analysis described below.

In a concurring opinion, Justice Jeffrey S. Boyd explained further the underlying rationale for dismissing the appeal.  “I write separately to emphasize a point on which everyone agrees: the State of Texas is not bound by the divorce decree at issue in this case.”  He continued, “The State lacks standing to appeal because it was not a party, it shared no privity or interest with any party, and the trial court’s judgment is not binding on it. . .  As a non-party who is not bound by the judgment, the State has no obligation to give any effect to the trial court’s divorce decree.  In fact, it may be, as the State contends, that our laws prohibit the State and all of its agencies and political subdivisions from giving any effect to the decree.”  Since the state did not recognize the marriage in the first place, and had been taking the position all along in both cases that such out of state same-sex marriages are considered “void” in Texas, the decree was of no consequence to the state.  Judge Boyd’s opinion overlooks the plain fact that the trial judge had not even necessarily considered this to be a divorce decree, but rather a “judgment” incorporating a settlement agreement reached by the parties.   Judge Boyd did comment that the dismissal of the J.B. appeal as moot “leaves the Dallas court’s opinion as the only currently existing Texas law” on the issue whether same-sex couples married elsewhere can get a divorce in Texas, and that ruling, of course, was negative.

Justice Don R. Willett’s dissent argued strongly that the court should have allowed the State to intervene because of the importance of the question.  Justice John P. Devine’s dissent, quite lengthy, plunged into the constitutional merits and argued that the Texas ban on recognizing same-sex marriages from other jurisdictions did not violate the 14th Amendment.  In addition to relying on Section 2 of the Defense of Marriage Act, the provision that was left untouched by the U.S. Supreme Court in U.S. v. Windsor, which provides that states are not constitutionally required to recognize same-sex marriages from other states, he argued that Texas had good policy justifications for refusing to allow same-sex couples to marry and treating out-of-state same-sex marriages as void in Texas.

Ignorant comments by the governor and attorney general in response to the Naylor ruling led to misleading media reports suggesting that the Texas Supreme Court had “upheld” a same-sex divorce sought by Naylor, but clearly the court had done no such thing, merely holding that it was itself without jurisdiction to rule on the state’s argument that the trial court lacked jurisdiction.

Ultimately, these actions by the Texas Supreme Court will be of only passing interest after the U.S. Supreme Court’s ruling in Obergefell v. Hodges.


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Federal Housing Discrimination Law May Cover Some Sexual Orientation Discrimination Claims

A federal judge in Alabama has ruled that some sexual orientation discrimination claims may be made under the federal Fair Housing Act (FHA), a statute that forbids sex discrimination by owners and operators of residential housing facilities.  District Judge William M. Acker, Jr., ruling June 16 in Thomas v. Osegueda, 2015 U.S. Dist. LEXIS 77627, 2015 WL 3751994 (N.D. Alabama), rejected the argument that the court would not have jurisdiction of any sexual orientation discrimination claim under the FHA.

James Earl Thomas filed suit against Carlos Osegueda, a regional director for H.U.D., and Christian Newsome, a claims investigator, for refusing to process his discrimination claim.  Judge Acker’s decision says little about the nature of the underlying claim, other than to state that Thomas claims he was discriminated against by Aletheia House, a recipient of federal housing funds, “because he is not gay.”   According to Acker, Thomas claimed that “he was discriminated against based on his conformity to male stereotypes, such as stereotypes regarding cooking and buying furniture.”  The reference to male stereotypes was undoubtedly an attempt to shoehorn his claim into the sex stereotyping theory, under which courts construing other federal sex discrimination laws have found some basis for extending protection to sexual orientation discrimination litigants.

Thomas filed a petition seeking a writ of mandamus, a court order directing Osegueda and Newsome to process his claim.  On January 26, Acker issued a memorandum opinion granting the petition and ordering Osegueda and Newsome to respond with an explanation of why a hearing on the matter was not required.  They responded on March 13, asking Judge Acker to reconsider his opinion and to dismiss Thomas’s petition for lack of jurisdiction, arguing that the FHA “does not give” the agency “jurisdiction to investigate and prosecute complaints raising allegations of discrimination based on sexual orientation.”  This required Acker to get into the question whether the FHA bans sexual orientation discrimination.

He pointed out that in the past courts had routinely dismissed sexual orientation discrimination claims under federal sex discrimination statutes, but that the Department of Housing and Urban Development (HUD), the enforcing agency for the FHA, “has taken several steps to clarify and reinforce the fact that certain acts of discrimination based on sexual orientation are in fact within its jurisdiction.”  Although Congress has never amended any of the federal sex discrimination laws to explicitly add “sexual orientation” to the forbidden grounds for discrimination, “HUD has taken an increasingly expansive view of its delegated authority under the FHA relating to discrimination based on sexual orientation,” Acker wrote.

HUD issued a guidance document in 2010 which stated that “while the [FHA] does not specifically include sexual orientation and gender identity as prohibited bases … [an] LGBT person’s experience with sexual orientation or gender identity discrimination may still be covered by the [FHA].”  On February 3, 2012, HUD “published a final regulation, the Equal Access Rule, to implement ‘policy to ensure that its core programs are open to all eligible individuals and families regardless of sexual orientation, gender identity, or marital status.’  While the new regulation made various minor regulatory revisions to effectuate the rule’s broader policy goal, the core provision of this new rule revised the eligibility requirements for HUD-assisted or insured housing to now require ‘such housing shall be made available without regard to actual or perceived sexual orientation, gender identity, or marital status.'”  In explaining the coverage for sexual orientation, the agency said, “certain complaints from LGBT persons would be covered by the Fair Housing Act . . . including discrimination because of nonconformity with gender stereotypes.”  The agency also explained that it could investigate and enforce such claims “as sex discrimination.”  HUD also published an “interpretive document” on August 20, 2014, giving as an example of such a claim the harassment of a gay man by a maintenance worker at a public housing complex because of his effeminate demeanor.

“Given these recent agency actions broadly interpreting the jurisdictional scope of HUD acting under the FHA based on sexual orientation,” wrote Acker, he would have to determine whether “HUD’s interpretation of its authority squares with the statutory language of the FHA.”  He concluded that it did, so long as HUD did not seek to assert its jurisdiction to sexual orientation claims that did not include a plausible allegation of sex stereotyping.  The sex stereotyping theory was recognized by the Supreme Court in 1989 in the case of Price Waterhouse v. Hopkins, where a masculine-acting woman was challenging an accounting firm’s refusal to make her a partner.  Since then, and most emphatically since President Obama took office in 2009, federal agencies have been advancing the sex stereotyping theory to find a basis for protecting gay and transgender people from discrimination.  The Equal Employment Opportunity Commission, which enforces Title VII of the Civil Rights Act of 1964, recently sent a memorandum to its regional offices similarly suggesting that they could accept employment discrimination claims from gay people using this theory in appropriate cases, and some federal district courts have refused to dismiss Title VII sex discrimination charges filed by gay men using this theory.

“These types of expanded protections for such individuals under the FHA is directly rooted in non-conformity with male or female gender stereotypes, and not directly derivative of sexual orientation as an independent and separate ground for protection,” wrote Acker.  “Considering the deference due by the court to agency interpretations,” he continued, “HUD’s narrow tailoring of jurisdiction for discrimination based on sexual orientation to protections for gender stereotyping in its interpretation of the FHA is a permissible reading of ‘sex.'”

However, this was no help to James Earl Thomas, who had alleged discrimination under a housing program because he “is not gay.”  “Thomas does not petition under a theory of gender non-conformity but rather relies on sexual orientation as the sole basis for discrimination separate and independent of gender,” wrote Acker, emphasizing that Thomas claimed he was discriminated against because of his “conformity to male stereotypes,” not because of a departure from such stereotypes.  “Even under HUD’s expanded interpretation of the FHA for gender stereotyping, these allegations are outside the scope of the FHA’s ‘sex’ discrimination protection and therefore HUD lacks the jurisdiction for respondents to act upon them.”

There is a certain illogic to this decision.  Surely, if a man suffers discrimination because he conforms to male stereotypes, wouldn’t that be a form of sex discrimination?  But, as Judge Acker pointed out, Thomas, who was representing himself in this case, insisted that he was suffering discrimination because “he is not gay,” and thus was claiming sexual orientation discrimination, not sex discrimination.

Turning briefly to a possible claim under the Equal Access Rule, Acker pointed out that the two named defendants did not have authority to accept and investigate discrimination claims under that rule, which applies to recipients of federal funding such as Aletheia House and is administered by a different office of the agency.  He observed that HUD had forwarded Thomas’s complaint to the relevant agency, since his charged involved a federally-assisted housing program, and since that office had not yet rejected his claim, a care for relief against a refusal to investigate would be premature.

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Arkansas Trial Court Orders State Recognition of “Window Period” Marriages

An Arkansas trial judge ordered the state on June 9 to recognize and extend all rights and privileges of marriage to more than 500 same-sex couples who married during May 2014 while the state sought a stay of a trial judge’s order striking down Arkansas’s same-sex marriage ban.

On May 9, 2014, Arkansas Circuit Judge Chris Piazza ruled in Wright v. State of Arkansas, 60CV-13-2662, that the state’s ban on same-sex marriage was unconstitutional, granting summary judgment to the plaintiffs, and specifically holding unconstitutional Amendment 83 (the Arkansas marriage amendment) and Act 144 of 1997 (the statute defining marriage in Arkansas as between a man and a woman).  While the state sought a stay from the Arkansas Supreme Court, same-sex couples began to obtain marriage licenses and get married pursuant to Judge Piazza’s decision.

Counsel for plaintiffs then brought to the judge’s attention that his order did not specifically mention all of the relevant statutes, and on May 15 he sent a letter to all counsel advising them that he was filing a new order clarifying the May 9 opinion and making clear that Act 146 of 1997, which specifically forbids issuing marriage licenses to or recognizing the marriages of same-sex couples, is also unconstitutional.  This new order was issued nunc pro tunc, meaning that it was intended to relate back to the May 9 decision, in order to protect the reliance interests of those who had married after the May 9 decision was announced.  On May 16, 2014, the Arkansas Supreme Court stayed Judge Piazza’s decision pending appeal.  The appeal was argued later in 2014, but changes in membership of the Arkansas Supreme Court  after the argument led to a period of delay and confusion in figuring out which judges should participate in deciding the appeal.  Ultimately this confusion – apparently to a large extent manufactured by some members of the court to avoid ruling on the merits – may delay things until after the U.S. Supreme Court issues its decision in Obergefell v. Hodges, obviating the need for the timorous Arkansas supreme court justices to have to rule in this case.  Also, during 2014 a federal district court in Arkansas issued a similar decision striking down the state’s marriage ban that was immediately stayed pending appeal, and the U.S. Court of Appeals for the 8th Circuit put the appeal “on hold” pending the Supreme Court’s ruling in Obergefell.

During the May 9-May 16 “window period” before Judge Piazza’s order was stayed, hundreds of same-sex couples married in Arkansas.  However, the state refused to recognize those marriages as valid.  This prompted a new lawsuit on behalf of two same-sex couples who married on May 12, but who were being denied the right to file joint tax returns and, in one case, to enroll a spouse in a state employee health insurance benefit program.  The state’s argument was that these marriages were invalid ab initio because Judge Piazza lacked the power to make his clarifying opinion retroactive.  According to the state, since Judge Piazza’s order was stayed, Act 146 remained in effect, precluding the state from recognizing these marriages.

On June 9, 2015, Circuit Judge Wendell Lee Griffen decisively rejected the state’s argument in Frazier-Henson v. Walther, No. CV-15-569 (Arkansas, Pulaski Co. Cir. Ct.).  Judge Griffen found that Rule 60 of the Arkansas Rules of Civil Procedure specifically authorizes judges to “correct errors or mistakes” or “to prevent the miscarriage of justice” by modifying judgments that they have issued, including “errors therein arising from oversight or omission.”  It was clear in this case that Judge Piazza’s omission of Act 146 from his original opinion was an oversight, as reflected in the overall opinion granting summary judgment to the plaintiffs and holding unconstitutional the state’s ban on same-sex marriage.  Further, Judge Griffen opined that it would constitute a miscarriage of justice not to accord recognition to the marriages contracted during the window period.

Judge Griffen used harsh language to characterize the position of defendant Larry Walther, Director of the Arkansas Department of Finance and Administration.  “With shameless disrespect for fundamental fairness and equality, Director Walther insists on treating the marriages of same-sex couples who received marriage licenses between May 9 and May 15 as ‘void from inception as a matter of law’.  Meanwhile, Director Walther asserts that ‘heterosexual marriages performed in the State of Arkansas between May 10, 2014 and May 16, 2014 are valid’.  This Court categorically rejects Director Walther’s manifestly inaccurate and tortured misinterpretation of Rule 60 of the Arkansas Rules of Civil Procedure.  If the position Director Walther asserts would not produce a ‘miscarriage of justice’ as that term is understood within the meaning of Rule 60(a), the words ‘miscarriage’ and ‘Justice’ have no meaning.”  The court ordered Walther to recognize all of the marriages contracted during the window period, to allow joint tax filings by those couples, and to allow same-sex spouses married during the window period to enroll in the state’s employee benefits program.

Associated Press reported that Arkansas Attorney General Leslie Rutledge did not immediately state whether she would seek a stay of Griffen’s ruling.   She asserted, “These marriages do not fall within the state’s definition of marriage as between one man and one woman.  I am evaluating the ruling and will determine the best path forward to protect the state’s interest.”

Judge Griffen was among the trial judges who officiated same-sex marriages during the window period, according to the AP report.

Arkansas attorney Cheryl K. Maples represents the plaintiffs.

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Federal Magistrate Refuses to Dismiss Gay Pilot’s Title VII Sex Discrimination Claim

U.S. Magistrate Judge Michael E. Hegarty refused to dismiss a claim by a gay airline pilot that his former employer discriminated against him in violation of Title VII of the Civil Rights Act of 1964 by misrepresenting the reason for his discharge, thus making him virtually “unemployable” in the industry.  Judge Hegarty’s May 11 ruling in Deneffe v. Skywest, Inc., 2015 U.S. Dist. LEXIS 62019, 2015 WL 2265373 (D. Colo.), appears to mark a further extension of the “gender stereotyping” theory under which federal courts have begun to find protection against discrimination for gay plaintiffs under Title VII’s ban on sex discrimination.

When Congress passed the Civil Rights Act in 1964, the House approved a floor amendment to add discrimination because of “sex” to the list of forbidden grounds of discrimination covered by the bill and the Senate acquiesced.  Because it was added as a floor amendment and there was no extended debate, there is little in the legislative history to indicate what Congress intended to cover by adding “sex,” and during the early years of the law, both the Equal Employment Opportunity Commission and the federal courts concluded that Congress did not intend to forbid discrimination because of sexual orientation or gender identity.

This narrow view of sex discrimination began to erode in 1989, when the Supreme Court accepted the argument that discriminating against a person because of their failure to conform to “sex stereotypes”  could be a violation of Title VII.  In Price Waterhouse v. Hopkins, Justice William J. Brennan wrote for a plurality of the Court that “we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group,” and he wrote, “Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.”  Justice Brennan also used the word “gender” several times in the opinion when referring to the forbidden grounds of discrimination under Title VII.

Taking their cue from this decision, some lower federal courts began to reconsider the earlier view that Title VII could not be construed to protect gay or transgender people from employment discrimination, at least in cases where it was plausible to claim that they suffered discrimination because of failure to comply with gender stereotypes.   Within the past few years, federal appeals courts have ruled that transgender plaintiffs could bring claims under both Title VII and the Equal Protection Clause, and the EEOC changed its position, at least regarding transgender discrimination claims, just a few years ago.  This evolving view has been slower to endorse sex discrimination claims by gay employees, but Judge Hegarty’s May 11 ruling adopts an interesting theory.

In his amended complaint, wrote Hegarty, Federic  Deneffe asserted that during many flights he piloted, “other pilots jokingly insinuated that male flight attendants were homosexual, referring to them by the nickname of ‘Susie.’  Deneffe once heard another pilot refer to male flight attendants as ‘the little faggots who bring us our coffee.’  Other male pilots also commented, ‘I am not getting laid this trip,’ and ‘I will make sure I double lock my room,’ when only male attendants were on a flight.  Male pilots frequently made disparaging remarks about openly gay men in general, with comments such as ‘Freddie Mercury was so talented, it’s such a shame he’s gay.’”

Deneffe also alleged that “male pilots regularly engaged in banter about their heterosexual exploits.  At least one pilot sent Deneffe text messages detailing his sexual exploits with a woman.  Deneffe was conspicuously silent when his co-workers discussed their sexual activities with women, made homosexual jokes, or talked about their wives and children.’”  Deneffe listed his same-sex partner as the beneficiary for his flight privileges with the airline when he was hired, and took one or two trips a month with his partner.  He claimed that other pilots regularly saw him and his partner at the airport and on flights together, and that he had talked about his sexual orientation with a female pilot, who happened to be openly lesbian (and who made some adverse comments about Deneffe on an evaluation form).

Deneffe was astonished by his sudden termination, because he had passed a satisfactory review and had never been in an accident.  His attempt to ascertain the reason for his discharge was unsuccessful, but when he applied to other airlines and authorized SkyWest to release his employee records as required by regulations, he was stunned to learn that the SkyWest form stated “Performance/Inability” and indicated he was “Ineligible for Rehire.”   He was unsuccessful in gaining employment as a pilot, and was told by one airline recruiter that “with a termination like that, we’re not to take you” or words to that effect.

He sued under both Title VII and the Age Discrimination Act, but suffered dismissal of his discrimination claim regarding the discharge for reasons not mentioned in Judge Hegarty’s  May 11 decision.  However, the judge allowed him to file an amended complaint based on the statements in the employee records.  SkyWest moved to dismiss the amended complaint, arguing that sexual orientation discrimination is not covered under Title VII and that the ban on employment discrimination would not extend to this situation in any event.

Judge Hegarty rejected both of SkyWest’s arguments.

Although the judge acknowledged that the 10th Circuit Court of Appeals, whose precedents would bind him, “has not recognized a Title VII claim for discrimination based on sexual orientation,” he found that “Deneffe’s Title VII claim is premised on Deneffe’s failure to conform to gender stereotypes,” a theory that had been recognized by the 10th Circuit in a case brought by a transgender plaintiff.

SkyWest argued that the complaint failed to state how Deneffe did not  conform to male stereotypes.

“Deneffe counters that the following allegations support his claim,” wrote Hegarty. “(1) He did not take part in male braggodicio [sic] about sexual exploits with women as the other male pilots did; (2) he did not joke about gays as other male pilots did, (3) he submitted paperwork to SkyWest designating his male domestic partner for flight privileges, a benefit offered only for family members and domestic partners, and (4) he traveled on SkyWest flights with his domestic partner.  The Court finds that these alleged facts, together with Deneffe’s allegation that the conduct by other male pilots was ‘regular,’ ‘frequent,’ and occurred during ‘many’ flights, suffice to state a plausible claim that the chief pilot submitted a negative PRIA employment reference based on Deneffe’s failure to conform to male stereotypes.”

In other words, Deneffe’s aloofness from the other pilots’ macho banter could be considered, together with the actions he took revealing his sexual orientation and the other pilots’ homophobic comments about flight attendants, as a form of gender stereotype nonconformity sufficient to get him past a motion to dismiss his Title VII claim.

Hegarty also found precedents supporting the claim that adverse job references can be considered a form of employment discrimination under Title VII.   He pointed to a prior 10th Circuit ruling that “an act by an employer that does more than de minimis harm to a plaintiff’s future employment prospects can, when fully considering the unique factors relevant to the situation at hand, be regarded as an adverse employment action, even where plaintiff does not show the act precluded a particular employment prospect.”

Hegarty wrote that “determining a harmful, negative employment reference to be an adverse employment action is consistent with the substantive provisions of Title VII.  Certainly, a negative employment reference could adversely affect an individual’s conditions or privileges of employment and/or deprive an individual of employment opportunities.”  It is not necessary that somebody still have the status of an employee at the time when the adverse effect occurs, he concluded, finding that “the alleged adverse action by SkyWest of submitting PRIA forms (after Deneffe’s termination of employment) containing negative employment information that is distributed to potential employers” was sufficient to ground a discrimination complaint under Title VII.

Deneffe is represented by Rosemary Orsini of Berenbaum Weinshienk PC (Denver) and Subhashini Bollini of the Employment Law Group (Washington, D.C.).

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3rd Circuit Finds Federal Inspection Rules for Porn Producers Violate the 4th Amendment

A three-judge panel of the Philadelphia-based 3rd Circuit U.S. Court of Appeals ruled on May 14 that federal inspection rules for producers of sexually-related materials violate the 4th Amendment.  While rejecting a 1st Amendment challenge to the substance of rules requiring the producers to maintain written records of proof of age for all their performers, the court found that there was insufficient justification to allow government inspectors to demand access to those records without a search warrant.

The ruling in Free Speech Coalition, Inc. v. Attorney General, 2015 WL 2240346, upheld a decision by U.S. District Judge Michael M. Baylson that the requirements did not unconstitutionally abridge the free speech rights of the plaintiffs, but reversed on the 4th Amendment issue, and also suggested that in light of the 4th Amendment ruling, Judge Baylson may need to reconsider his 1st Amendment ruling regarding one of the challenged provisions requiring producers to make such records available for inspection at least 20 hours a week.  The court emphasized that the challenged regulations to not forbid the plaintiffs from producing sexually-oriented materials, but merely require that they compile and maintain evidence that all the depicted performers are 18 years old or over, making these records available to the government for inspection.

The lawsuit brought by a group of producers of sexually-oriented materials mainly distributed on the internet challenged two federal statutes and accompanying regulations that were intended by Congress to deal with the issue of child pornography.  Congress determined that merely banning the production and distribution of sexually-oriented depiction of children was insufficient to suppress it completely, so it enacted provisions requiring all producers of sexually-oriented materials to obtain and keep on file documentary proof of the age of all persons depicted in those materials, and to make these records available to federal inspectors without advance notice or any requirement to obtain a search warrant from a federal magistrate.  Law enforcement officials are normally prohibited from searching private businesses or residences for evidence of criminal activity without first obtaining a search warrant based on probable cause to believe that evidence of criminal conduct may be found in the place to be searched.

The court undertook an extensive review of Judge Baylson’s analysis under both constitutional amendments.  The opinion by Circuit Judge D. Brooks Smith goes into considerable detail about the evidence considered by the district court in reaching its conclusions.

The court decided that the documentation and record-keeping requirements would withstand the First Amendment challenge if the government could show that they were justified by the government’s legitimate interest in protecting children from being exploited through their use in the production and distribution of sexually-explicit materials.  The producers argued that most of the performers they use are clearly adults, and that the burden and expense of compiling and maintaining records of adult performers was not justified by the goal of protecting children.  Considerable testimony was offered both by the government and the producers on the question whether the wide-ranging requirements were really necessary.

The problem, of course, is that while some performers can clearly be classified as “mature adults” based on their physical appearance, and others can clearly be classified as minors on the same basis, there is a substantial middle ground where visual inspection of the final product may be inconclusive.  The district court accepted the producers’ argument that “it is their sincere belief that the use of sexually explicit material is a valued artistic endeavor and also serves valued educational motives,” and thus is constitutionally protected, but it also found that each of the producers “consistently used young-looking performers and almost all of their work had a commercial or profit motive.”  None of the producers was “an exclusive producer of sexually explicit depictions of ‘clearly mature’ adults.”  Indeed, the district court found that “youthful-looking performers are ubiquitous in the adult entertainment industry” and that materials purporting to show teenagers in a sexually-oriented way accounted for “approximately one-third of the material on pornography tube sites” on the internet.

As one government expert witness explained, “12, 13 and 14 year olds can appear to be much older than they are because they may experience early sexual and physical maturation” and this showed “the inability to determine chronological age from visual inspections.”  The expert testified that “even maturation experts will have a 2-5 year margin of error when trying to ascertain the age of a young adult, and that margin is greater for members of the public.”

Interestingly, although 29 inspections of producers’ age documentation had been made since 2006, the FBI, the agency charged with making these inspections, had effectively ceased doing them early in 2008 as litigation began in various courts around the country challenging the regulations, and government witnesses testified that there were no plans at present to resume making these surprise inspections.  On the basis of the inspections undertaken so far, however, FBI agents who testified in this case “believed it would be very difficult if not impossible to fabricate the records required by the Statutes in a 24-hour-period,” thus undermining the rationale for the statutory requirement that producers not be given advance notice of inspections and be required to keep their facilities open and available to inspections without notice for at least 20 hours each week.

The court found that although imposing a burden on the producers to document the ages of performers who were obviously mature adults did nothing to advance the government’s interest in protecting children, the court ultimately accepted the government’s argument that “any attempt to identify a class of clearly mature adults exempt from the Statutes’ reach would undermine the Statutes’ effectiveness.”  Although the government’s expert conceded that it was “generally true, but not always true” that adults who are 25 years of age or older will not be mistaken for minors under age 18, and that “the vast majority” of adults 30 years of age or older could not be mistaken for a minor, the court asserted that “the government need not employ the least restrictive or least intrusive means” when it came to advancing the significant interest in protecting minors.  “The government must be allowed to paint with a reasonably broad brush if it is to cover depictions of all performers who might conceivably have been minors at the time they were photographed or videotaped” wrote the court, quoting from an earlier decision rejecting a similar challenge to the statute.

The court found that “neither side successfully established at trial where the line between ‘clearly mature’ and ‘possibly underage’ can effectively be drawn,” wrote Judge Smith, who said that the government expert’s “statement that generally most minors could not be mistaken for a 25-year-old adult does not establish that the government’s interests are not furthered by requiring identification for performers over age 25.”  Indeed, the same expert pointed out that “the rare minor could appear up to 30 years old.”   “failing to require producers to check identification for such individual would therefore render the Statutes less effective in preventing child pornography,” wrote the court. “Thus, at the very least, comparing the use of performers above and below age 25 as Plaintiffs urge does not advance their argument that the States are not narrowly tailored.”  “Narrow tailoring” is a requirement of statutes that would burden constitutionally-protected speech, and because the district court accepted the plaintiffs’ argument that their sexually-oriented materials enjoy some 1st Amendment protection, the regulation must meet the test of being “narrowly tailored” to avoid burdening more speech than is needed to advance the government’s legitimate interests.

The court concluded that the burden actually imposed was not sufficient to require more precision in the documentation requirements.  It found that the cost of complying was not so severe as to make the producer’s activities unprofitable, especially since “each Plaintiff’s work depicts a substantial number of individuals for whom requiring identification does promote the government’s interests.”  Indeed, the court said, once the producers make the initial investment in setting up their age record system, they “do not face a substantial additional burden attributable to keeping records for clearly mature performers on top of the records they must maintain for young performers,” so “most of the burden Plaintiffs incur through compliance with the statutes is implicated by the government’s interest in protecting children.”

The court pointed out that because none of the plaintiffs in this case exclusively employed “clearly mature adults,” the court didn’t have to address whether an exemption from the rules would be required for somebody whose productions were so limited.  Furthermore, none of the plaintiffs were producing images solely intended for private use.  “Whether the statutes and regulations may be constitutionally applied to individuals falling in either of those categories are therefore questions we need not reach,” wrote Judge Smith.

The court also rejected the argument that the record-keeping requirement was over-broad, the flip side of the “narrow tailoring” test, again emphasizing the substantial proportion of youthful-looking individuals employed in making sexually-oriented materials covered by the statutes.  As one government expert testified, concerning the difficulty of establishing the exact proportions, “youthful adults appear in all categories of pornography, not just ‘teen porn,’ making the attempt to estimate the amount of sexually explicit depictions of youthful adults using categorical search terms particularly foolhardy.”  Also, it is almost impossible to quantify the proportion of such depictions that are created for private use, such as “sexting,” which is also theoretically covered by the federal statutes.

However, the court found that the plaintiffs had established “the existence of a universe of private sexually explicit images not intended for sale or trade along with, to a limited degree, a universe of sexually explicit images that depict only clearly mature adults.”  As to these, the court concluded, the district court may need to reconsider its 1st Amendment ruling in an “as-applied” challenge by individual plaintiffs.  However, wrote Judge Smith, “the invalid applications of the Statutes that Plaintiffs have demonstrated still pale in comparison with the Statutes’ legitimate applications, which counsels against holding the Statutes facially invalid.”

Turning to the government’s defense of the authorization for warrantless searches, the court rejected the argument that these statutes qualified for a recognized exception for heavily regulated industries.  There is a line of constitutional cases holding that the government may undertake administrative searches of heavily regulated industries without getting warrants or giving advance notice, even though the violation of safety rules may sometimes result in criminal penalties.  This exception was developed in the particular context of safety regulations of heavy industry, for one example.  Another example is the funeral business, where many states have adopted extensive regulations and authorized warrantless searches.  But the court rejected the government’s argument that the plaintiffs in this case were engaged in a heavily regulated industry.

While the statutes do require recordkeeping and labeling of the product, “no one is required to obtain a license or register with the government before producing a sexually explicit image,” wrote Judge Smith.  “An artist can pick up a camera and create an image subject to the Statutes without the knowledge of any third party, much less the government.  Nor has the government identified any regulations governing the manner in which individuals and businesses must produce sexually explicit images.  The creation of sexually explicit expression is better characterized by its lack of regulation than by a regime of rules governing such expression.”

Thus, a statutory authorization of warrantless searches requires some justification showing that requiring warrants would significantly undermine the legitimate government purpose of these recordkeeping requirements.  “Here,” wrote Judge Smith, “the government has all but admitted that warrantless searches are unnecessary.”  After again mentioning the testimony by FBI agents that it was unlikely that a producer could assemble the necessary records on short notice, the court stated, “We agree with law enforcement’s testimony that the destruction of evidence is not a real concern, given that to do so would only compound any criminal violation of the Statutes.  Further, law enforcement here conducted nearly one third of its inspections under the Statutes after providing notice and without any reports of records fabrication.  Thus, the record establishes that the type of records required to be maintained, given their scope as well as the need for indexing and cross-referencing, could not easily be recreated on short notice and violations concealed. “

Consequently, there is no need in this case to dispense with the constitutional safeguard of having the government persuade a neutral judicial officer of the reasonableness of a proposed search in order to get a warrant.  This would presumably involve providing some evidence that a producer is making or distributing films depicting youthful-looking actors whose ages need to be verified.  Such a requirement would, of course, probably deter government inspectors from seeking  search warrants to look at records when the product clearly depicts only “clearly mature” adult performers.

Since the government is not presently engaged in active inspection of these records, it seems unlikely that it would seek Supreme Court review of the 3rd Circuit’s 4th amendment ruling.  The next question in this case is whether Judge Baylson in the district court might cut back on his 1st Amendment holding in light of the appeals court’s reasoning.

The plaintiffs are represented by Lorraine R. Baumgardner and J. Michael Murray of Berkman, Gordon, Murray & DeVan (Cleveland) and Kevin E. Raphael, and J. Peter Shindel of PIetragallo, Gordon, Alfano, Bosick & Raspanti (Philadelphia).  Amicus briefs in support of the plaintiffs were filed by the ACLU of Pennsylvania and the Electronic Frontier Foundation.  Justice Department attorneys represented the government.



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