New York Law School

Art Leonard Observations

Maryland Intermediate Appellate Court Finds State Precedent Precludes Applying “Best Interest of the Child” Standard to Visitation Dispute of Divorcing Lesbian Couple

Due to the oddities of timing during a transitional period in the legal landscape, the Maryland Court of Special Appeals found in the context of a divorcing lesbian couple that the non-biological parent’s claim for visitation with the child conceived through donor insemination at a time when the women could not marry in their domicile of the District of Columbia must be dismissed on standing grounds. It seems that by a fluke of timing the women could have married in D.C. before the child was born, but did not marry until shortly after his birth, and this turned out to be determinative under Maryland law. Conover v. Conover, 2015 Md. App. LEXIS 107 (Md. Ct. Spec. App., Aug. 26, 2015). The Court of Special Appeals (an intermediate appellate court) rejected equitable claims, found that potential constitutional claims on behalf of the non-biological parent had not been properly raised or preserved at trial, and, in the opinion for the court by Judge Robert A. Zarnoch, characterized this as a “sad case” since “the present state of Maryland case law leaves us no choice.” In a concurring opinion, Judge Douglas R.M. Nazarian wrote, “I agree with the majority that this case is sad, but I would add the adjective ‘frustrating,’” and he wrote at length about how the current legal parenthood regime in Maryland was inadequate to meet the situation of unmarried same-sex parents.

Maryland’s legislature adopted a law authorizing same-sex marriage, but only after the underlying events in this case occurred. There is no question that Maryland recognizes the District of Columbia marriage of Michelle and Brittany Conover. The question is whether, in the context of a divorce proceeding, Michelle has the standing of a parent seeking visitation, or rather should be treated as an unrelated third party. The court found that existing Maryland precedents, not altered by passage of the Marriage Act, dictates third-party treatment.

The women’s relationship began in 2002, with some “breaks.” They discussed having a child and Brittany became pregnant through donor insemination in 2009, at a time when marriage licenses for same-sex couples were available in three states but not in D.C., where they were then living. In March 2010, D.C. began issuing marriage licenses to same-sex couples under a newly-enacted municipal ordinance. On April 4, 2010, Brittany gave birth to their son, Jaxon William Lee Eckel Conover. (The name incorporates former surnames of the parents’ families.) The birth certificate listed Brittany as the mother and left blank the space for father. On September 28, 2010, the women married in D.C. and subsequently took a common surname, Conover. They subsequently moved to Maryland, which did not legislate for marriage until a few years later, although Maryland was, by virtue of an Attorney General opinion, recognizing same-sex marriages from D.C.

The marriage didn’t last very long. The women separated in September 2011, but Michelle continued to visit Jaxon regularly until Brittany prevented further contact in July 2012. Brittany filed a pro se divorce action in Maryland on February 8, 2013, which did not mention Jaxon. Michelle, also proceeding %pro se%, answered on February 19, asserting a claim for visitation rights, and then on March 14 filed a counterclaim for divorce pro se, again raising the issue of visitation. At the subsequent hearing on April 30, Michelle was represented by counsel but Brittany was not. Brittany claimed Michelle did not have parental standing to seek visitation, which Brittany opposed. Michelle rested her claim on a Maryland statute governing paternity claims when a child was born before the parents married, asserting that the court should construe the statute to apply to spouses of either sex, not just fathers. The statute, Sec. 1-208(b), provides four ways a man who was not married to the child’s mother at birth could establish parental status. If one gives it a gender-neutral reading (as California has done in similar situations), Michelle could assert parental status under three of the four methods. She also asserted equitable claims, such as de facto parenthood and estoppel.

Circuit Judge Daniel P. Dwyer issued a decision on July 4, 2013, finding that Michelle was not a legal parent of Jaxon. As a “third party,” she could only seek visitation if she could show that Brittany was unfit as a parent or that there were extraordinary circumstances justifying the court in letting Michelle seek visitation. The court found that neither of those requirements were met, and rejected her visitation claim, and Michelle appealed.

First addressing constitutional issues, Judge Zarnoch observed that although “nearly half of her brief” was devoted to attacking Maryland’s paternity and legitimacy statutes as unconstitutionally discriminating against women and gay people, Michelle had not raised these arguments before Judge Dwyer, Brittany appearing pro se had not been called to respond to them, and the Attorney General had not weighed in. Zarnoch, quoting another judge in an old case, said that “it would be foolhardy in the extreme to undertake the resolution of such complex constitutional questions” on this sort of record. However, Judge Zarnoch observed, Brittany benefited in this dispute by the well-developed Maryland and federal case law on the constitutional right of fit parents to determine who would associated with their children. As Michelle did not challenge Brittany’s fitness as a parent, Brittany had a right to veto Michelle’s demand for visitation, as the appellate court agreed with the trial judge that under Maryland law Michelle is a “third party,” even though she had helped to plan for Jaxon’s conception and had married Brittany shortly after the child was born.

Zarnoch reviewed Maryland case law, showing that the state’s highest court, the Court of Appeals, had rejected the concept of de facto parenthood in this context, observing that under Maryland law, “A non-biological, non-adoptive spouse who meets one, two or even three tests under ET Sec. 1-208(b) [the paternity statute] is still a ‘third party’ for child access purposes.” The court agreed that the paternity statute was enacted for the purpose of imposing duties on unmarried fathers, not for the purpose of establishing custody or visitation rights on such individuals. If Brittany was seeking a child support order against Michelle, it is possible on these facts that such an order might be forthcoming, but the statutes could not be construed in the court’s view to entitle her to be considered as a legal parent for custody or visitation purposes. “Moreover,” wrote Zarnoch, “there is no gender discrimination or sexual orientation discrimination because all non-biological, non-adoptive parents face the same hurdle, no matter what sex or sexual orientation they are.”

Zarnoch also contended, “The couple could have married before Jaxon was born, but did not. The circuit court did not err in failing to accord weight to the prohibition on same-sex marriage that once existed.” This is because D.C. began allowing same-sex marriages while Brittany was pregnant. Had the women quickly taken advantage of this, they would have been married when Jaxon was born and Michelle would have parental standing under the general principle, followed in Maryland, that the spouse of a woman who gives birth is a legal parent of the offspring. Even before D.C. was performing same-sex marriages, the court pointed out, Michelle and Brittany could have gone to one of the other three states that authorized same-sex marriages (all without residency requirements) and gotten married before conceiving Jaxon. They also could have had Michelle adopt Jaxon after he was born. (The court noted in passing that as of that time it was not totally clear that Maryland courts would approve second-parent adoptions, but the Court of Appeals had not ruled against them. It would seem that once the couple had married, a court would likely have treated this as a step-parent adoption and no more controversial, but that is just hindsight from today’s perspective.) There was evidence that the women talked about adoption, but the expense of a formal adoption was, in their view, a burdensome and unnecessary expense on top of the expenses of raising Jaxon.

Michelle argued that Brittany should be barred from raising the parental status issue, inasmuch as the women had agreed before the child was conceived that Michelle would be a parent, and that Brittany had said and done various things prior to and after the birth to continue to induce Michelle’s reliance that her parental status would be honored and she did not have to go through a formal adoption procedure to protect her rights. The court was unwilling to go down that path, pointing out that most courts had rejected equitable estoppel or parenthood by estoppel arguments in such cases and that Michelle “had ample time – years, in fact – to pursue the adoption of Jaxon.” (Actually, she had just over a year if one assumes that Brittany would become uncooperative about an adoption after the women had separated, so the court’s characterization may exaggerate Michelle’s window of opportunity for this.)

Michelle’s appellate strategy was focused on persuading the court that she should not be treated as a “third party” and thus should not have to show “exceptional circumstances” to overcome Brittany’s objection to her claim for visitation, and that the trial court should have afforded her an additional hearing to address the “exceptional circumstances” issue if the judge was to decide it. The appellate court was not persuaded, finding that she had an opportunity to introduce evidence on this point. Indeed, her trial lawyer on the record said that the evidence “screamed extraordinary circumstances” and that this was an “alternative argument” for her standing. She had also briefed the issue to the trial judge in a post-hearing memorandum, so Judge Zarnoch found that the trial court could not be faulted for reaching and deciding the issue. Since Michelle had not asked on appeal that the appellate court address the correctness of the trial judge’s conclusion on this point, the court refrained from doing so.

“In conclusion,” wrote Zarnoch, “it must be said that this is a sad case; nor can Michelle’s desire for access to Jaxon be questioned. However, the present state of Maryland case law leaves us no choice. The interplay between the State’s paternity statutes and the marriage, divorce, and child access rights of same-sex couples is aptly characterized as ‘uncharted Maryland waters in an area where the Legislature is better suited to consider the competing legal and societal values. . .,’’ quoting from In re Roberto de B., 399 Md. At 312-13 (dissent).

Although Judge Nazarian agreed with the result, he concurred in a separate opinion bemoaning the failures of Maryland family law, asserting that the “premise” underlying the Court of Appeals’ rejection of the de facto parenthood doctrine “no longer holds, at least with regard to married same-sex couples. If, as Maryland law now provides,” he continued, “a valid marriage between two women (or two men) has the same legal validity and force as a man-woman marriage, courts should analyze the visitation rights of same-sex spouses the same way they analyze the visitation rights of opposite-sex spouses. I acknowledge that there may well be some challenges in adapting our analyses to accommodate the real-life differences in the way children join same-sex families, but it may not be that hard either, and we have to start somewhere.” He concluded that “the historic treatment of same-sex parenthood is no longer up to the task.”

The next step for Michelle may be an attempt to take this to the Court of Appeals and seek reversal of the precedent that bound the intermediate court to rule against her. In a sense this case is presenting a transitional problem in light of the subsequent enactment of a marriage equality law in Maryland, followed by the Supreme Court’s Obergefell decision. But, on the other hand, same-sex couples, in common with many different sex couples, have children while cohabiting but without marrying under varied circumstances, so it is unlikely that the issues in this case will not arise in future cases, even with the option to marry or to adopt available.

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LGBT Legal Organizations Call for Decriminalization of Sex Work as Federal Government Initiates Prosecution of’s Owner and Employees

On August 20, leading LGBT rights legal organizations in the United States issued a joint statement supporting Amnesty International’s August 11 Resolution that advocates for the human rights of sex workers, including repeal of laws against prostitution. Just days later, on August 25, the U.S. Department of Homeland Security (DHS) raided the New York City offices of, the world’s largest on-line escorting website, carted away boxes of business records and computers, and arrested the company’s chief executive officer, Jeffrey Hurant, and six employees.

Amnesty International (AI), a non-governmental organization concerned with human rights issues worldwide, called on governments to repeal laws criminalizing sex work, while asking them to move to prevent and combat sex trafficking, to ensure that sex workers are protected from exploitation, and to enforce laws against the sexual exploitation of children. In short, AI suggests that adults should be able to freely consent to engage in sexual activity for compensation without criminal penalty, and that continued maintenance of criminalization exposes all sex workers, whether children or adults, to exploitation, violence, and severe health risks.

Sex work for pay is presently legal in some countries (e.g., Canada, United Kingdom), but outlawed in most. Even those countries that don’t criminalize prostitution as such generally maintain laws against promotion and public solicitation of prostitution. In the United States, every jurisdiction except some counties in Nevada treats all sexual activity for monetary compensation as unlawful, although they differ as to the classification of the offense and potential penalties. The Model Penal Code as adopted in the states decriminalized private consensual sexual activity between adults, but not when such activity involves a commercial transaction, and courts have been unanimous in holding that the Supreme Court’s 2003 decision striking down sodomy laws, Lawrence v. Texas, does not create a protected liberty interest extending to commercial sex or sex between adults and minors.

The LGBT organizations that joined in the statement endorsing AI’s resolution are Transgender Law Center, Gay & Lesbian Advocates & Defenders, Lambda Legal, National Center for Lesbian Rights, and National Center for Transgender Equality.

The Joint Statement explains, “For many LGBT people, participation in street economies is often critical to survival, particularly for LGBT youth and transgender women of color who face all-too-common family rejection and vastly disproportionate rates of violence, homelessness, and discrimination in employment, housing, and education.”

The Joint Statement goes on to describe the various hazards faced by sex workers that are amplified by the criminalization of their activities, with a particular emphasis on the difficulties experienced by transgender sex workers. “Laws criminalizing sexual exchange – whether by the seller or the buyer – impede sex workers’ ability to negotiate condom use and other boundaries, and force many to work in hidden or remote places where they are move vulnerable to violence. Research and experience have shown that these laws serve only to drive the industry further underground, make workers less able to negotiate with customers on their own terms, and put those who engage in criminalized sex work at higher risk for abduction and sex trafficking,” says the Joint Statement. “And as UNAIDS and the World Health Organization have recognized, criminalization also seriously hampers efforts to prevent and treat HIV/AIDS – efforts in which people involved in the sex trades are crucial partners.”

Just days before the Joint Statement was issued, the U.S. Department of Homeland Security (DHS) submitted a Complaint and Affidavit in Support of Arrest Warrants to the U.S. District Court for the Eastern District of New York (Brooklyn) on August 18, seeking to arrest the owner and employees of, described in the complaint as “a commercial male escort advertising site that promotes prostitution.” The complaint quotes advertising itself as the “original and largest male escort service online.” The Complaint was submitted under oath by DHS Special Agent Susan Ruiz, who led the investigation leading to the prosecution. The Complaint requested that its supporting affidavit and warrants be kept under seal until they were executed to prevent the defendants from fleeing the jurisdiction.

On August 25, Homeland Security agents accompanied by NYC Police Department officers appeared at’s offices on West 14th Street in Manhattan to conduct their raid.  They also arrested the employees there and arrested others at their homes, effectively shutting down operation of the website. The defendants were listed in the complaint as Jeffrey Hurant (the owner) and employees Michael Sean Belman, Clint Calero, Edward Lorenz Estanol, Shane Lukas, Diana Milagros Mattos, and Marco Soto Decker. The title of the case on the Complaint is United States of America v. Hurant.

The complaint sets out a detailed description of the website, defining terms, providing graphic descriptions of the activities advertised, and asserting repeatedly that the disclaimers on the site were meaningless and that the entire operation was set up to connect customers with prostitutes.

Anyone seeking a detailed description of the on-line male escort business will find it in this complaint, which became public upon serving of the arrest warrants and was posted later on August 25th on various news websites. The complaint describes each of the defendants (including aliases used by many of them) and their role in the business, including past or present escorting activity by some of them.

The complaint asserts that the term “escort” is a euphemism for a prostitute. The complaint describes and quotes from various escort listings on, including the quotation of rates for services and the listing of specific sexual activity that an escort is willing to engage in. The complaint also notes cross-references in some of the advertisements to another website,, at which can be found detailed accounts by customers of their experiences with the escorts in the form of reviews, including reports on the amount of money charged by the escort.

It is unclear whether this action taken against was a precursor to actions against similar websites operated from the United States as part of a more general crackdown on the use of the Internet for commercial sexual assignations, whether Homeland Security is also targeting heterosexual escort sites, or whether was singled out for prosecution because of the brazenness of its owner, who is quoted in the complaint as having made clear in published interviews that the purpose of the website was to assist escorts in marketing their sexual services.

According to the complaint, Hurant uses as an email address, which is hardly subtle. The complaint quotes Hurant telling one interviewer, “There is no place in this website where somebody says I’ll have sex for money because that is against the law. We can talk about what you look like, what you are, what you like to do, what people say about you in bed. . . People say I’m a great top, people say I fuck like nobody’s business, but you can’t say I’ll fuck you for two hundred bucks.” The website includes a disclaimer that rates quoted by the escorts on the site are only for their time, and that any sexual activity that takes place is a private matter between consenting adults.

In justifying the arrest of the employees as well as the owner, the complaint states, “There is probable cause to believe that anyone employed by the organization was aware that its aim was the promotion of prostitution, based on its publicly-disseminated advertising and promotional material and the content of the site itself.” Illustrating the openness with which went about its business, the complaint describes how the company applied to the Department of Homeland Security for an occupational visa for one of its employees. It also describes an annual public event held by, the “Hookies,” at which awards were bestowed on escorts listed on the site as the “best” in particular categories of sexual performance, and at which Hurant gave his business card to an undercover agent.

The prosecution is premised on 18 U.S.C. Section 1952, a federal statute that provides, in relevant part: “(a) Whoever travels in interstate or foreign commerce or uses the mail or any facility in interstate or foreign commerce, with intent to. . . (3) otherwise promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity, and thereafter performs or attempts to perform – (A) an act described in paragraph . . . (3) shall be fined under this title, imprisoned not more than 5 years, or both. . . (b) As used in this section (i) “unlawful activity” means (1) any business enterprise involving . . . prostitution offenses in violation of the laws of the State in which they are committed or of the United States.”

The complaint cites provisions of New York law criminalizing “promoting prostitution” and engaging in prostitution activity, thus satisfying the federal statutory requirement that the proposed defendants are using a “facility in interstate or foreign commerce” with the intent to “promote” an “unlawful activity.” News reports indicated that the prosecution may also involve charges of “money-laundering,” but that is not specified in the complaint submitted to the federal court to get the arrest warrants.  Of course, the complaint submitted to get the warrant does not limit the scope of the ultimate prosecution. In a footnote, it states that because the complaint was submitted “for the limited purpose of establishing probable cause,” Agent Ruiz did not “set forth each and every fact learned during the course of this investigation.” One might expect that the investigation would include rigorous tax auditing of and its parent corporation, as well as the seven individuals arrested, and that the U.S. Attorney, acting as a prosecutor on behalf of DHS, is likely to assert as broad a range of charges as the results of the DHS investigation may support.

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Maryland Attorney General Opines that Adultery Rules Apply to Same-Sex Marriages

Marriage equality means equal treatment of same-sex and different-sex marriages for all purposes of law.

Such is the premise of Maryland Attorney General Brian E. Frosh’s formal opinion issued in response to an inquiry from a member of the state’s House of Delegates, asking whether the adultery laws would be violated by sexual infidelity by a spouse in a same-sex marriage. Family Law – Divorce – Whether Same-Sex Marital Infidelity Can Qualify as Adultery for Purposes of Family Law Provisions Governing Divorce, 100 Op. Att’y Gen. 105 (July 24, 2015).  Assistant Attorney General Patrick B. Hughes and Chief Counsel Adam D. Snyder are also listed on the written opinion.

“Although the concept of adultery has significance in both criminal law and family law,” they wrote, “the State’s criminal prohibition against adultery has fallen into disuse, so we will focus on the definition of adultery for purposes of Maryland family law. In our opinion, adultery, as that term is used in the Family Law article, includes a spouse’s extramarital sexual conduct with someone of the same sex. We base this conclusion in large part on the purpose behind adultery laws in the domestic relations context. The primary purpose of adultery as a concept in Maryland family law is to recognize that sexual infidelity is a breach of the marriage vow and causes damage to the marriage, such that the injured party should be allowed to dissolve the marriage more easily than would otherwise be the case. This purpose is implicated to the same degree when an unfaithful spouse has sex with a man or a woman; extramarital sexual activity with someone of the same sex is just as damaging to a marriage as sexual activity with someone of the opposite sex. We accordingly believe that Maryland courts would recognize same-sex sexual infidelity as adultery.”

The opinion notes that Maryland courts had in the past taken a broader view than the traditional narrow common law definition, treating as “adultery” situations where a different-sex spouse had engaged in sexual activity with another person of the same sex. “Adultery” is one of the recognized “fault” grounds for divorce in Maryland, making it possible for a couple to divorce without living “separate and apart” for a year as is required for a no-fault divorce proceeding. “Adultery” is also a factor in alimony and child custody determinations.

The lengthy opinion provides a detailed history of adultery as a legal concept, documenting how the concept has evolved to the point where the genders of the parties should not make a difference. While the opinion finds that the plain language of the relevant statutory provisions is not particularly helpful in answering this question, the modern statutory purpose of the concept supports applying it equally to same-sex and different-sex marriages, even though a spouse cheating with a member of the same-sex doesn’t present the possibility of pregnancy, a key concern in the early history of the concept that was focused on protecting a husband’s patrimony.

Noting the recent Obergefell v. Hodges decision by the Supreme Court, the opinion comments, “The right to civil marriage would ring hollow if states could treat same-sex married couples differently than opposite-sex ones, providing special benefits to, or imposing special burdens on, one category but not the other. . . We think an overly narrow definition of adultery that excludes same-sex sexual activity, and makes it more difficult for same-sex couples to divorce, may raise similar constitutional problems. We need not decide, however, whether a court would ultimately find a constitutional violation if adultery were limited to sexual activity between a man and a woman. Rather, the point is that there is a legitimate question as to the constitutionality of defining adultery to exclude same-sex sexual activity, and this makes it even more likely that Maryland courts would choose a broader definition.”

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Colorado Appeals Court Rules against Wedding Cake Baker in Discrimination Case

Continuing an unbroken string of judicial rejections of free exercise of religion defense to discrimination claims against small businesses that decline goods or services to same-sex couples for their commitment ceremonies or weddings, a unanimous three-judge panel of the Colorado Court of Appeals has affirmed a ruling against Masterpiece Cakeshop, Inc., and its proprietor, Jack C. Phillips, by the Colorado Civil Rights Commission.  Judge Daniel M. Taubman wrote the opinion for the court, released on August 13.


Charlie Craig and David Mullins planned in 2012 to get married in Massachusetts and then to hold a wedding celebration for family friends in Colorado, where they lived.  At the time, the state of Colorado did not recognize same-sex marriages performed in other jurisdictions.  They visited Masterpiece Cakeshop and asked the proprietor, Jack Phillips, to design and create a cake for their celebration.  Phillips declined, stating to them that he does not create wedding cakes for same-sex weddings because of his religious beliefs.  He told them he would be happy to make and sell them other baked goods, but not a wedding cake.  The two men left the store and made arrangements with another bakery.  Craig’s mother called Phillips to follow up, but he reiterated his position that he would not make wedding cakes for same-sex weddings due to his religious belief, and also because such weddings were not legally recognized in Colorado.


Craig and Mullins filed a complaint with the Colorado Civil Rights Division, invoking the Colorado Anti-Discrimination Act (CADA), which bans discrimination because of sexual orientation by public accommodations.  After investigation, the Division noted probable cause and filed a formal complaint, that was tried before an Administrative Law Judge, who ruled in favor of Craig and Mullins, rejecting Phillips’ claimed religious exemption defense.  The Civil Rights Commission affirmed the ALJ decision, issuing a “cease and desist order” against Masterpiece, that required the company to (1) take remedial measures, including comprehensive staff training and alteration to the company’s policies to comply with the CADA, and (2) file quarterly compliance reports for two years with the Division describing the company’s remedial measures and documenting all patrons who had been denied service and the reasons for the denial.  The court’s opinion does not mention any fine or damages award.  Of course, since Craig and Mullins had long since married and held their celebration, there was no need to order Masterpiece to sell them a wedding cake. 


Phillips appealed to the courts, claiming, as he had maintained all along, that his refusal to make a wedding cake for the gay couple did not violate the statute, and that he had a right under the 1st Amendment to refuse to create a wedding cake when this act would conflict with his sincerely-held religious beliefs.  Phillips claimed that he did not discriminate because of the sexual orientation of Craig and Mullins, but rather because he disapproved of same-sex marriages on religious grounds.  He pointed out that he did not refuse to do business with them because they were gay, as he offered to sell them any other baked goods, and sought to draw a distinction between their status and their conduct in having a same-sex marriage.  He pointed out, for example, that he would equally refuse to design a cake for two heterosexual men who wanted to celebrate their wedding, to advance his argument that he was not discriminating based on status.


The court rejected this rationalization, observing that “the United States Supreme Court has recognized that such distinctions are generally inappropriate.” Judge Taubman quoted from Christian Legal Soc’y Chapter of University of California, Hastings College of Law v. Martinez, 561 U.S. 661 (2010), in which petitioner contended that it did not exclude individuals from membership because of their sexual orientation, but rather “on the basis of a conjunction of conduct and belief that the conduct is not wrong,” to which the Court replied, “Our decisions have declined to distinguish between status and conduct in this context.” 


Taubman also cited the majority and concurring decisions in Lawrence v. Texas, 539 U.S. 558 (2003), in which Justice Anthony Kennedy’s opinion said that a law criminalizing homosexual conduct is “in and of itself an invitation to subject homosexual persons to discrimination” and Justice Sandra Day O’Connor’s concurring opinion said, “While it is true that the [challenged sodomy law] applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual.  Under such circumstances, [the] law is directed toward gay persons as a class.”  These comments were directed against the state of Texas’s argument that its “Homosexual Conduct Law” was not specifically anti-gay because it outlawed oral or anal sex between two persons of the same sex regardless of their sexual orientation, an argument analogous to Phillips’ denial that his rejection of Craig and Mullins’ order was antigay. 


Taubman invoked as well the highest-level judicial precedent to deal directly with the issue in this case, Elane Photography v. Willock, 309 P.3d 53 (2013), in which the New Mexico Supreme Court upheld a discrimination ruling against a wedding photography who refused to do business with a lesbian couple for their commitment ceremony.  Wrote Taubman, “Masterpiece admits that it refused to serve Craig and Mullins ‘because of’ its opposition to persons entering into same-sex marriages, conduct which we conclude is closely correlated with sexual orientation.  Therefore, even if we assume that CADA requires plaintiffs to establish an intent to discriminate. . . the ALJ reasonably could have inferred from Masterpiece’s conduct an intent to discriminate against Craig and Mullins ‘because of’ their sexual orientation.”


Before addressing Phillips’ religious exemption argument, the court dealt with his argument that creating a wedding cake is an artistic expression, and that the First Amendment’s protection for freedom of expression should shield him from being compelled by state law to create a wedding cake. “Masterpiece contends that wedding cakes inherently communicate a celebratory message about marriage and that, by forcing it to make cakes for same-sex weddings, the Commission’s cease and desist order unconstitutionally compels it to express a celebratory message that it does not support.”  The ALJ had rejected this argument, and so did the court. 


“We conclude that the act of designing and selling a wedding cake to all customers free of discrimination does not convey a celebratory message about same-sex weddings likely to be understood by those who view it,” wrote Taubman.  “We further conclude that, to the extent that the public infers from a Masterpiece wedding cake a message celebrating same-sex marriage, that message is more likely to be attributed to the customer than to Masterpiece.”  After all, Masterpiece would be creating the cake because of its legal duty not to discriminate, not because it wishes to convey its own message of approval of same-sex marriages.  The court drew an analogy to the Supreme Court’s rejection of law schools’ argument that requiring them to allow military recruiters on campus during the era of “don’t ask, don’t tell” was compelling them to express approval of that policy.  “The Supreme Court rejected this argument,” wrote Taubman, “observing that students ‘can appreciate the difference between speech a school sponsors and speech the school permits because legally required to do so.’”


The court found this case distinctly different from the Supreme Court’s ruling that a parade sponsor’s 1st Amendment expression rights allowed the sponsor to exclude a gay group from openly participating in the parade.  The Court saw that as a compelled speech case, holding that a parade is an intrinsically expressive activity whose sponsor has a right to control the views that are expressed, despite a state public accommodations law banning sexual orientation discrimination.  “In contrast,” wrote Taubman, “it is unlikely that the public would understand Masterpiece’s sale of wedding cakes to same-sex couples as endorsing a celebratory message about same-sex marriage.”  He noted that the law would not prohibit Masterpiece and Phillips from articulating their objections to same-sex marriage.  Furthermore, he noted, “Phillips denied Craig’s and Mullin’s request without any discussion regarding the wedding cake’s design or any possible written inscriptions,” so it is unclear exactly what speech he would be “compelled” to engage in when decorating the cake.


Finally, turning to the religious free exercise argument, the court noted that under established Supreme Court precedent, an individual is not excused by his or her religious beliefs from complying with neutral laws of general application.  Under that standard, because the CADA is such a law, no business or individual can claim a religious exemption from complying with it.  The only exemption generally recognized under the law is for religious organizations that claim an exemption from anti-discrimination laws, for example, in their selections of employees or contractors to perform religious functions.  The court rejected Masterpiece’s argument that CADA was not a neutral law of general application.  The law “does not compel Masterpiece to support or endorse any particular religious views,” Taubman pointed out.  “The law merely prohibits Masterpiece from discriminating against potential customers on account of their sexual orientation,” he continued.  Thus, “we conclude that CADA was not designed to impede religious conduct and does not impose burdens on religious conduct not imposed on secular conduct.”


Having found the law to be neutral as to religion and generally applicable, the court concluded that its application to Masterpiece and Phillips turned on whether the state had a rational basis, the lowest level of constitutional review.  “We easily conclude that it is rationally related to Colorado’s interest in eliminating discrimination in places of public accommodation,” Taubman wrote.  “The Supreme Court has consistently recognized that states have a compelling interest in eliminating such discrimination and that statutes like CADA further that interest.  Without CADA, businesses could discriminate against potential patrons based on their sexual orientation.  Such discrimination in places of public accommodation has measurable adverse economic effects.  CADA creates a hospitable environment for all consumers by preventing discrimination on the basis of certain characteristics, including sexual orientation.  In doing so, it prevents the economic and social balkanization prevalent when businesses decide to serve only their own ‘kind,’ and ensures that the goods and services provided by public accommodations are available to all of the state’s citizens.”


Finally, the court rejected Phillips’ argument that the Commission exceeded its authority by imposing a remedy that went beyond the specific complaint of Craig and Mullins, requiring it to change policies and create wedding cakes for hypothetical future customers.  The court found that “individual remedies are merely secondary and incidental to CADA’s primary purpose of eradicating discriminatory practices.”  Masterpiece had conceded that its rejection of this request to create the wedding cake was pursuant to a company policy, and there was actually evidence in the hearing record that they had also rejected doing business with other same-sex couples, so the Commission’s order “was aimed at the specific discriminatory or unfair practice involved in Craig’s and Mullins’ complaint.”


Shortly after the opinion was released, Phillips’s attorney announced that an appeal to the Colorado Supreme Court would be attempted.  That court has control over its docket and is not required to grant review to this unanimous court of appeals ruling, but given the wide public interest in the case, it would seem likely that review would be granted.  Numerous amicus briefs were filed with the court from such groups as the National Center for Lesbian Rights, Americans United for Separation of Church and State, groups representing small business associations, religious organizations, the NAACP Legal Defense Fund, and Lambda Legal Defense Fund. 


Phillips is being represented by Arizona attorney Jeremy D. Tedesco from Alliance Defending Freedom, a so-called “Christian” legal defense group, so he does not bear the expense of continuing litigation on his own.


Craig and Mullins are represented by Paula Greisen of King & Greisen, a Denver firm, with Mark Silverstein and Sara Neel, Denver attorneys, and Ria Tabacco Mar, a New York attorney.  The Commission is represented by the Colorado Attorney General’s office. 


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8th Circuit Rules on Pending State Marriage Equality Appeals

When the U.S. Supreme Court ruled on June 26 in Obergefell v. Hodges that same-sex couples have a right to marry under the 14th Amendment, it technically reversed a ruling by the 6th Circuit Court of Appeals, which had in November 2014 itself reversed rulings issued by federal district judges earlier in that year striking down state bans on same-sex marriage in each of the states in the circuit.  Thus, as a technical matter the Supreme Court was just directly holding that the same-sex marriage bans in Michigan, Ohio, Kentucky and Tennessee violate the 14th Amendment. 


As of June 26, appeals were pending before the 8th Circuit Court of Appeals from three states – South Dakota, Nebraska, and Arkansas – where the states were contesting district court rulings striking down their same-sex marriage bans.  The 8th Circuit had scheduled oral arguments to take place in the spring, but the court cancelled the arguments, putting all the state appeals on hold while the Supreme Court case was pending.


After the Supreme Court ruled, plaintiffs in the 8th Circuit cases asked the court of appeals to affirm the district court rulings and enjoin the three states from enforcing their same-sex marriage bans.  The three states, on the other hand, claimed that they had begun to issue marriage licenses to same-sex couples and to recognize same-sex marriages in response to the Obergefell decision.  As a result, they argued, the lawsuits against them were moot, since there was no longer a live legal controversy to be decided by the court of appeals.  They urged the 8th Circuit to vacate the district court opinions and instruct the district courts to dismiss these lawsuits as moot, opposing the plaintiffs’ requests that the 8th Circuit uphold the district court injunctions. 


On August 11, an 8th Circuit three judge panel issued three per curiam rulings, rejecting the state arguments using almost identical language holding the state bans unconstitutional pursuant to the Obergefell decision and tailoring remedies for the situations presented by each of the states.  The panel consisted of Circuit Judges Roger L. Wollman, Lavenski R. Smith, and William D. Benton.


In Rosenbrahn v. Daugaard, the South Dakota case, District Judge Karen E. Schreier had issued a declaratory judgement and a permanent injunction, but stayed the injunction pending appeal.  In Jernigan v. Crane, the Arkansas case, District Judge Kristine G. Baker had similarly issued a declaratory judgment and a permanent injunction, staying the injunction pending appeal.  In Waters v. Ricketts, the Nebraska case, District Judge Joseph F. Bataillon had not issued a declaratory injunction yet, but had granted the plaintiffs’ motion for a preliminary injunction and the state had filed an appeal from that ruling, with the 8th Circuit staying the preliminary injunction pending ruling on the appeal.


The court of appeals first addressed the issue of mootness.  It found that the states’ “assurances of compliance with Obergefell do not moot the case” although the assurances “may, however, impact the necessity of continued injunctive relief.”  The court premised its mootness ruling on the precise language that Justice Anthony M. Kennedy had used in his opinion for the Supreme Court, where he said that “the State laws challenged by Petitioners in these cases are now held invalid.”  Wrote the 8th Circuit, “The Court invalidated laws in Michigan, Kentucky, Ohio, and Tennessee” but not explicitly in the three states whose appeals were before the 8th Circuit!  Furthermore, the Supreme Court had not directly addressed “all issues raised by Plaintiffs here” and none of the three states had repealed their constitutional amendments or statutory bans on same-sex marriage. 


Of course, as none of the states in the 6th Circuit had filed petitions for rehearing with the Supreme Court, the Obergefell case is at an end, and the Supreme Court’s decision creates a binding precedent that the 8th Circuit Court of Appeals must follow.  Thus, the court found, it was appropriate to affirm the district court declaratory judgments in South Dakota and Arkansas, and to affirm the preliminary injunction in Nebraska and send that case back to the district court for an entry of final judgment in favor of plaintiffs on the merits.


Turning to the question of injunctive relief, the court of appeals panel felt that it should be up to the district judges in each case to decide whether injunctive relief is warranted in light of post-Obergefell developments.  Although the states claimed that they have been complying with the Obergefell ruling, the challenged constitutional amendments and statutes are still on the books, so the court decided it was within the discretion of the district judges to determine whether injunctions are necessary at this point. 


Local attorneys were heavily involved in the three lawsuits that were being appealed, all of which had multiple plaintiffs and many organizations filing amicus briefs.  In terms of national movement legal involvement, the Nebraska case was brought with the assistance of the ACLU’s LGBT Rights Project and the ACLU of Nebraska and the South Dakota case was brought with the assistance of the National Center for Lesbian Rights.  The lists of organizations and attorneys filing amicus briefs actually take up more pages than the brief opinions issued by the court of appeals in these cases. 


The next step, of course, will involve filing of motions for the award of attorney fees to the plaintiffs under federal statutes authorizing such awards to prevailing parties in civil rights litigation.  It was widely speculated that the states were seeking to have the district court opinions vacated and the cases dismissed at least in part to give them an argument for avoiding having to pay attorney fees to the plaintiffs.  The 8th Circuit’s orders affirming the district court decisions should forestall that, since there can be no argument that the plaintiffs are not “prevailing parties,” having obtained the ruling on the merits that they sought.  In other parts of the country, several courts have made substantial fee awards to the attorneys who have represented plaintiffs in the marriage equality cases over the past several years, and new awards have begun to be issued in response to post-Obergefell motions.


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Nebraska Court Holds Anti-Gay Adoption/Foster Licensing Policy Violates 14th Amendment

Lancaster County, Nebraska, District Judge John A. Colborn ruled on August 5, 2015, that the state’s policy for approving adoptions of state wards and foster care licenses for same-sex couples violated the rights of gay people and same-sex couples under the 14th Amendment of the U.S. Constitution.  Ruling in Stewart v. Heineman, the court invoked the U.S. Supreme Court’s decision in Obergefell v. Hodges in support of its ruling, but without explicitly stating why Obergefell compels this result.


The lawsuit was initiated in 2013 by three same-sex couples who were told during the period 2010-2012 that they could not be certified to be foster parents because of a policy adopted by the state’s Department of Health and Human Services.  In January 1995, DHHS issued Administrative Memorandum #1-95, which directs that foster home licenses may not be issued to “persons who identify themselves as homosexuals” or “unrelated, unmarried adults residing together.”  DHHS indicated at the same time that the new policy would not affect existing foster placements or placements with a child’s relative, and apparently the intent was to institute a “don’t ask, don’t tell” policy under which staff would not ask about sexual orientation or marital status apart from inquiries already included in the licensing application and home study forms. 


In the summer of 2012, the former Director of the Division of Children and Family Services (CFS), Thomas Pristow, told Service Area Administrators and the Deputy Director of the agency that they should no longer follow Memo #1-95, and that DHHS could place children with gay singles or same-sex couples, provided that he personally approve any such placement.  This was after the three plaintiff couples in this case had been turned down under the policy expressed in Memo #1-95.  The memo was subsequently removed from the agency’s website in February 2015 (after a federal district court had ruled that the state’s same-sex marriage ban was unconstitutional) but the policy was  never formally rescinded in writing, Memo #1-95 does not appear on the DHHS website’s page for rescinded or replaced memos, and it has not been replaced with a new written policy statement.  Indeed, the current website makes no reference to a DHHS policy on gay individuals or unrelated, unmarried couples.  According to evidence introduced by the plaintiffs, some consisting of statements by agency officials at operational levels, it appears that there is considerable confusion within the agency and among agency contractors about the status of this policy, and that gay couples continue to be routinely denied certification as foster parents.


Judge Colborn rejected the agency’s contention that removal of the policy from the website and the agency’s verbal assurance to the judge that the policy was no longer in place was sufficient to make this case go away.  Indeed, Judge Colborn found as a matter of fact that regardless of the memo’s absence or presence on the website, there is evidence that the agency, despite its disavowals, imposes a higher level of scrutiny on gay and same-sex couple applicants than on other applicants.  Indeed, a non-gay individual or traditionally-married applicant goes through two low levels of scrutiny before final approval, while gay or same-sex couple applicants go through five tiers of scrutiny culminating in personal review by the head of the agency.  Clearly there is an unequal process.


First the court addressed the odd posture of agency policy concerning Memo #1-95.  “The current stated policy of DHHS is wholly inconsistent with Memo #1-95,” wrote the judge.  “Memo #1-95 has not been rescinded or replaced with the current policy.  A governmental agency cannot adopt a new policy, and not rescind or replace an Administration Memorandum that is wholly inconsistent with the current policy.  It is the determination of the court that Memo #1-95 should be rescinded, and ordered stricken or replaced with the current policy, for the reason that it is not consistent with the current policy of DHHS.  Additionally, pursuant to the holding of the United States Supreme Court in Obergefell v. Hodges, the court must hold that Memo #1-95 should be stricken as it violates the Equal Protection and Due Process Clauses.”


Turning to the challenge to the current unwritten policy described in agency testimony, the court found further constitutional flaws.  “Defendants have not argued, nor have they identified, any legitimate governmental interest to justify treating gay and lesbian individuals and gay and lesbian couples differently than heterosexual individuals and heterosexual couples in this review process,” wrote Judge Colborn.  In fact, he noted, the agency claimed it wasn’t treating them differently, but the testimony belied that assertion. 


The agency made the laughable argument that the extra level of scrutiny on approving gay applicants was intended to “prevent bias against those persons.”  What makes this laughable was that only those applications approved at lower levels are subjected to review at higher levels within the agency.  “It is not logical that a procedure could prevent bias when it does not deal with placements that were rejected, or not recommended, during one of the previous four stages of review,” wrote the judge.  “If the Defendants wanted to prevent bias against gay and lesbian couples, as well as unmarried adults residing together, Defendants would review denials of placements rather than approvals of placements.” 


On its face, the extra tiers of review process appears designed to screen out gay applicants, not to prevent bias against them.  The court found that the agency had acknowledged that there was “no child welfare interest advanced by treating gay and lesbian persons differently from heterosexual persons in decisions regarding licensing or placement in foster or adoption homes.”  That being the case, once again the court deemed the policy inconsistent with the requirements of Obergefell v. Hodges.


The court ruled that the agency must treat gay and non-gay applicants the same, and same-sex and different-sex couples the same.  Of course, in the post-Obergefell world, the state and its agencies must treat married same-sex couples the same as married different-sex couples as a matter of constitutional law. 


The court ordered the agency to formally rescind Memo #1-95, and to replace it with a memo stating the constitutionally appropriate version of the current policy. The absence of a written policy clearly creates confusion within the agency and may provide too much unguided discretion to lower level agency functionaries to discriminate against gay applicants. The court enjoined the agency from “applying a categorical bar to gay and lesbian individuals, gay and lesbian couples, and unrelated, unmarried adults residing together seeking to be licensed as foster care parents or to adopt a state ward.”  The court ordered that the same review processes be used for all applicants, and provided that “costs of this action are taxed to Defendants.” 


Given the state’s reluctant acquiescence to Obergefell and the stated opposition by Governor David Heineman to gay rights in general and gay parenting in particular, it seemed likely that the state would pursue an appeal of Judge Colborn’s decision. 


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Federal Court Rejects Recalcitrant County Clerk’s Free Exercise Claim

Judge David Bunning of the U.S. District Court for the Eastern District of Kentucky rejected a claim by Rowan County Clerk Kim Davis that she has a First Amendment right to refuse to issue any marriage licenses in order to avoid compromising her religious belief that a marriage can be only between one man and one woman. 


Granting the plaintiffs’ motion for a preliminary injunction in Miller v. Davis on August 12, Judge Bunning concluded that all factors courts consider in deciding motions for preliminary injunctions favored the plaintiffs, including likelihood of success on the merits of their claim that the clerk’s action was violating their constitutional rights, and he granted the injunction.  Clerk Davis, represented by Liberty Counsel, a so-called Christian law firm, promptly noticed her appeal to the 6th Circuit Court of Appeals and, upon advice of counsel, refused to comply with the injunction.  Shortly after noticing the appeal, Liberty Counsel also sought a stay of the injunction pending appeal. Given the 6th Circuit’s hostility to marriage equality, it seemed possible that such a stay would be granted by the circuit court, if not by Judge Bunning.


The lawsuit was filed by two couples: April Miller and Karen Roberts (same-sex), and Kevin Holloway and Jody Fernandez (different-sex). Both couples tried to get marriage licenses from the Rowan County Clerk’s Office shortly after the Obergefell decision was announced by the Supreme Court, reversing the 6th Circuit and affirming a Kentucky federal district court ruling for marriage equality.  Both couples were turned down, being told that the office was not issuing any marriage licenses.  Both couples then went to Rowan County Judge Executive Walter Blevins, asking him to issue licenses.  However, Blevins told them, Kentucky law authorizes him to issue licenses only when the county clerk is “absent.”  Since Clerk Davis was continuing to fulfill her other duties, Blevins concluded that she was not “absent” so he did not have authority to issue licenses.  Although at least seven neighboring counties quickly began issuing licenses after the Supreme Court ruling, these couples insisted that they wanted to get their licenses in the county where they lived, worked and paid taxes, and that they should not have to travel out of the county in order to get married, so they filed suit.


Unlike some other states, where clerks have argued that their controlling statute does not require them to issue marriage licenses, in Kentucky it is clear that county clerks are supposed to issue licenses, so Davis rests her defense on the proposition that she has a constitutional right based on the 1st Amendment and the state’s Religious Freedom Act to refuse to have any licenses issued by her office because of her religious objections to being seen to endorse same-sex marriages. 


Although it is possible that one of her clerical employees could issue the licenses, Davis found this objectionable because, she says, her name as county clerk would still appear on the document, thus implying her endorsement or approval of the marriage.  Under Kentucky’s statute, the marriage license form includes “an authorization statement of the county clerk issuing the license for any person or religious society authorized to perform marriage ceremonies to unite in marriage the persons named.”  Focusing on this, Davis argued that the “authorization statement” constitutes “an endorsement of same-sex marriage, which runs contrary to her Apostolic Christian beliefs,” wrote Judge Bunning.


Governor Steve Beshear had tried to talk her out of this position, and had advised her that if she was unwilling to perform her statutory duties she should resign so that somebody willing to comply with the law could be put in her place.  Davis refused, insisting that she intends to serve out the remaining three-and-a-half years of her elected term as county clerk.  


As a fallback defense, Davis also argued that requiring Rowan County couples who want to marry to go to a neighboring county did not impose any substantial burden on their newly-proclaimed 14th Amendment right to marry, as weighed against the significant burden on her freedom of religion in requiring her to issue licenses to same-sex couples.  She explained that her office had stopped issuing marriage licenses to anybody because she did not want to engage in discrimination against same-sex couples. 


Davis was sued in her official capacity for her refusal to issue any marriage licenses, which the plaintiffs alleged “significantly interferes with their right to marry because they are unable to obtain a license in their home county.”  Davis countered that they could go to a neighboring county, they could get a license from Judge Blevins, or they might in future be able to get a license on-line, pursuant to a proposal being considered by the legislature to move the licensing process out of the county clerk offices.  Judge Bunning rejected these arguments. 


Pointing out that the plaintiffs are “long-time residents who live, work, pay taxes, vote and conduct other business in Morehead,” the county seat, they were entitled to prefer to get their licenses locally. 


Furthermore, he observed, “there are individuals in this rural region of the state who simply do not have the physical, financial or practical means to travel,” so the office’s refusal to issue any licenses at all would substantially burden some couples who want to marry.  The judge also noted that 57 of the state’s 120 elected county clerks had petitioned the governor to call a special legislative session to enact a law allowing them to refuse to issue licenses to same-sex couples.  Asked Bunning, “If this Court were to hold that Davis’ policy did not significantly interfere with the right to marry, what would stop the other 56 clerks from following Davis’ approach?”  If many county clerks refused to issue licenses, an “inconvenience” could become a “substantial interference” with what the Supreme Court has identified as a “fundamental right.” 


Additionally, Bunning agreed with Judge Blevins that Blevins was not authorized by statute to issue marriage licenses in place of Davis when Davis was not “absent” from work, and he concluded further that putting the entire burden for issuing licenses in Rowan County on Judge Blevins, who has many other duties, is not a “viable option.”  As to the on-line alternative, Bunning pointed out it was only a proposal and so it did not respond to the present concern.


Bunning found that the state did not have a compelling interest to protect Davis’ free exercise rights that would outweigh the state’s interest in upholding the rule of law, under which the plaintiffs were entitled to get marriage licenses.  “Our form of government,” he wrote, “will not survive unless we, as a society, agree to respect the U.S. Supreme Court’s decisions, regardless of our personal opinions.  Davis is certainly free to disagree with the Court’s opinion, as many Americans likely do, but that does not excuse her from complying with it.  To hold otherwise would set a dangerous precedent.”  Delaying the plaintiffs’ attempts to exercise their fundamental right to marry imposes an irreparable harm on them, the judge found, while he disagreed that requiring the office to issue licenses would impose any substantial harm on Davis.


Bunning also disagreed with Davis’s argument that the authorization statement on the marriage license form implied or communicated that she endorses or approves of same-sex marriage.  It is merely a statement that the applicants are legally qualified to marry. Furthermore, he rejected her argument that Governor Beshear’s directive, issued after the Obergefell decision, instructing county clerks to issue licenses to same-sex couples, did not serve a compelling state interest or that she was entitled to a religious exemption from complying with it.  Bunning found that Beshear’s directive is a religiously neutral and generally applicable state policy mandating compliance with the law and not singling out religion in any way. “While facial neutrality is not dispositive,” wrote Bunning, “Davis has done little to convince the Court that Governor Beshear’s directive aims to suppress religious practice.” 


He also rejected her argument that Attorney General Jack Conway’s decision not to defend the marriage ban in 2014, leaving the governor to hire outside counsel to represent the state before the 6th Circuit, provided some kind of precedent for her seeking an exemption from being required to comply with her job. Bunning rejected her attempt to draw an analogy, seeing Conway’s position as an “exercise of prosecutorial discretion” based on Conway’s announced view that the ban was not defensible in court, which turned out to be correct at the level of the Supreme Court.  “By contrast,” Bunning pointed out, “Davis is refusing to recognize the legal force of U.S. Supreme Court jurisprudence in performing her duties as Rowan County Clerk.  Because the two are not similarly situated, the Court simply cannot conclude that Governor Beshear treated them differently based upon their religious convictions.”


Davis also attempted to assert a free speech claim under the 1st Amendment, which was quickly disposed of under Supreme Court precedents holding that public employees speaking in their official capacity do not enjoy individual 1st Amendment protection for their speech.  After questioning whether the act of issuing marriage licenses can even be characterized as speech, Bunning pointed out that any speech involved in that process (such as the statements on the license form to which Davis objects) is state speech, not Davis’s speech.  “The State prescribes the form that Davis must use in issuing marriage licenses,” he wrote.  “She plays no role in composing the form, and she has no discretion to alter it.  Moreover, county clerks’ offices issue marriage licenses on behalf of the State, not on behalf of a particular elected clerk.”  To Bunning, it was clear that the state was not compelling Davis to communicate personal approval of same sex marriages when it requires her to issue licenses.  When Davis issues licenses, she is acting as an elected official, not as an individual member of the public. 


Bunning also rejected her argument that requiring her to issue licenses imposes a constitutionally forbidden “religious test” for her to be a public employee.  “The State is not requiring Davis to express a particular religious belief as a condition of public employment,” he wrote, pointing out that what the state does require is that “all state officials” must “swear an oath to defend the U.S. Constitution.”  She swore such an oath when she took office, he wrote, and her refusal to comply with “binding legal jurisprudence” has “likely violated the constitutional rights of her constituents.”  Quoting from the Obergefell decision, he wrote, “When such ‘sincere, personal opposition becomes enacted law and public policy, the necessary consequence is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty has been denied.’”  “Such policies simply cannot endure,” Bunning asserted.


Finally, having concluded that requiring Davis to issue marriage licenses does not substantially burden her free exercise of religion, Bunning rejected her claim to protection under Kentucky’s Religious Freedom Act, which does not grant more protection than the federal Religious Freedom Restoration Act on which it is based.  “Davis remains free to practice her Apostolic Christian beliefs,” he wrote.  “She may continue to attend church twice a week, participate in Bible Study and minister to female inmates at the Rowan County Jail.  She is even free to believe that marriage is a union between one man and one woman, as many Americans do.  However, her religious convictions cannot excuse her from performing the duties that she took an oath to perform as Rowan County Clerk.”


Concluding that it was in the public interest to do so, Bunning issued two orders.  First, he ordered that the plaintiffs’ motion for a preliminary injunction be granted.  Second, he ordered that “Defendant Kim Davis, in her official capacity as Rowan County Clerk, is hereby preliminarily enjoined from applying her ‘no marriage licenses’ policy to future marriage license requests submitted by Plaintiffs.”


The plaintiffs promptly filed a statement opposing Liberty Counsel’s application to stay Judge Bunning’s order, and the court gave Liberty Counsel a short deadline to respond to the opposition. 


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Glimmerglass Festival – Summer 2015

My blog took a short break while I ventured north to attend the Glimmerglass Festival near Cooperstown, New York.  My regular opera-going companion and I have been going to Glimmerglass since 2010, when we went up specifically to see Anthony Roth Costanzo in Handel’s Tolomeo.  We were impressed enough to return the following summer for several operas, and over the ensuing years it has become a regular summer highlight.  We go for one of the “escape” weekends when one can take in all four operas in repertory in a short period of time.  Also, after moving accommodations around the first few years, we settled on the Limestone Mansion, a bed & breakfast in Cherry Valley, NY, in 2013, which so enchanted us that we returned there last year and this and have made our reservation for the same weekend next year – the first escape weekend in August.

Glimmerglass’s Artistic & General Director, Francesca Zambello, has established a flexible pattern for the programing.  There is usually at least one American musical, at least one major standard repertory opera, sometimes one experimental program that might include a modern opera, sometimes one revival of a very early piece from the Baroque period, and occasionally an opera a bit outside the standard repertory by a major composer…  It varies, but that’s the point: one goes 4 days in a row and experiences a wide variety of experiences.  If one can stand a double-header, the programing is set up so that one can come just for Friday-Sunday and hear all four operas by attending a Saturday matinee, since they repeat the Thursday night opera on Saturday afternoon.  We tried that once and found it a bit too much.

This year the musical was Candide (music by Leonard Bernstein), the core standard repertory opera was The Magic Flute (music by Wolfgang Amadeus Mozart), the Baroque opera was Cato in Utica (music by Antonio Vivaldi), and the wild card was Macbeth (music by Giuseppe Verdi).  Actually, recent major revivals have edged Macbeth into the active repertory to the extent that the usual formula was slightly broken by presenting both Magic Flute and Macbeth in the same summer, and I did miss the kind of modern program that has proved enticing.  (Last summer, for example, we had Tobias Picker’s opera of An American Tragedy.)   Next year’s festival will touch all the bases except Baroque: Puccini’s La Boheme for the core repertory piece, Sondheim’s Sweeney Todd for the American musical, Rossini’s La Gazza Ladra (The Thieving Magpie) for the major composer’s work from outside the standard repertory, and Robert Ward’s The Crucible (based on the Arthur Miller play) for the modern American opera.  I’m already looking forward to next year.

But back to this year….

Our first opera of the festival was Candide, on Thursday, August 6.  The unusual feature of this production was the restoration of much music that had been cut over the years in the various revivals and reconceptions.  The piece was originally presented, without great success, as a Broadway musical in 1956.  It closed after a few months, but the original cast recording became a cult hit due to the catchy tunes and witty lyrics, which worked just fine in isolation from the unwieldy book.  After resting on the shelf for a while, the piece was plucked from obscurity for a series of revivals, during the course of which Bernstein approved cutting, restructuring, reconceptions of the book, etc.  I had last seen it in a production by the late lamented New York City Opera.  Glimmerglass borrowed the version used more recently by the Royal National Theatre of Scotland, which reorganized things a bit (especially in the second half) and restored material that I had never heard before.  The result is that I, who thought I knew this piece very well, was confronted by several startling differences in the plot and repurposing of some of the music.  Did it work?  I thought it was pretty effective.  If I was coming to it with no knowledge of prior productions, I might not even notice anything amiss.  But one of the recurring complaints about Candide applies to this production as to the others; nobody has really solved the problem of the second act and closing.  This is a show that starts strong but tends to peter out a bit dramatically, almost no matter what you do with it.  Bernstein did not write a rousing finale.  It is a moving finale, but not a rouser.

The performance I saw and heard was exemplary.  Joseph Colaneri, who gave an excellent pre-performance talk, conducted with a sure hand, and he had an excellent cast to work with.  David Garrison particularly stood out as philosopher Voltaire (upon whose satirical novel the work is based) and Dr. Pangloss, the ultra-optimistic philosopher/teacher who is a main target of Voltaire’s satire.  Andrew Stenson and Kathryn Lewek were impressive as Candide and Cunegonde, with Lewek particularly outstanding in her star-turn aria, Glitter and Be Gay.  Marietta Simpson clowned wonderfully as the Old Lady.  Martin, a character I don’t recall from previous incarnations of this work, was played by Matthew Scollin in a truly standout piece of comic acting.

On Friday night we had The Magic Flute, and here I thought that there was a bit of a dramatic misfire.  The piece was conceived by Mozart and Schikaneder as a comedic parody of Masonic rites, but not really satirical in any cutting sense, more like a battle between darkness and light, with the Masonic philosophy actually triumphing in the end, although with shifting allegiances along the way.  The piece is set in a mythological time, with dragons, birdcatchers, trials of fire and water, etc.  The concept adopted by Glimmerglass was odd and a bit puzzling.  The young hero, Tamino, is first seen during the overture as a young businessman in a modern urban setting, wearing a suit and tie, carrying a briefcase, caught up and bit exhausted by the hurly-burly of the city through a pantomime of running about the stage into and out of crowds of similarly garbed modern city folk.  Somehow in the transition from overture to first act, he finds himself in a deep forest, still wearing the business suit, soon doing battle with forest goblins and being fussed over by ladies clad in evening gowns or something akin.  The setting, we are told in the program book, is the forest country of central New York, the world of James Fenimore Cooper (whose family settled and named Cooperstown), and perhaps Sarastro, the chief wizard, and his minions are actually Native American tribe members.  But they are not garbed as Native Americans.  Instead, Sarastro seems to be clothed in a long white laboratory coat with big pockets, and his minions are somewhat similarly garbed.  Although there is some suggestion that Native American rites substitute for the quasi-Masonic rites of the original, it is not clear in the staging and costuming. It is all a puzzle.   Since the opera was conceived as fantasy, I guess anything goes, but plunking Tamino into the middle of this in modern American business attire (although he does lose the jacket from his ensemble for a while) is strange.

The casting was mainly excellent.  Sean Panikkar, a bright young singer whose work I’ve heard several times over the years, was most engaging as Tamino, and Ben Edquist, a member of Glimmerglass Young Artists for the summer, was also quite engaging as Papageno, showing great chops for comic acting.  So Young Park as the Queen of the Night had some unsteadiness in her big first act aria, but was thrilling for the big second-act star turn.  Soloman Howard was Sarastro, and he really had me with his first notes – a huge but well-controlled low voice deployed with great artistry. He also has a very impressive, dignified presence on the stage.  I did feel, however, that he has not yet grown into the very lowest sustained notes for this part, where there was some straining.  From a dramatic point of view, I also thought he had not quite grown into this role yet.  The usual casting for Sarastro is to use an older man who can is presented as the wise authority figure, and Howard is quite youthful for this part.  I think that in ten or fifteen years he will be ideally cast as Sarastro.  (In the meantime, I thought he made quite a hit the next night as Banquo in Macbeth, a part for which he is already ideally suited.)  The conductor, Carolyn Kuan, kept things moving and coordinated quite well.  If this was not quite the total musical success compared to the Candide performance, I thought it was a worthy performance.

Saturday night presented what I thought was the weakest of the four presentations, Verdi’s Macbeth.  This opera came at the end of the composer’s early period before he wrote the big hits that are now central to the repertory of every major opera house: Rigoletto, Il Trovatore and La Traviata.  As such, it is a transitional work.  Verdi was perfecting his compositional technique as he was finding his voice, but nothing is quite as distinctive or “finished” as it was shortly to become with the “Big Three”.  There is plenty to enjoy, but not enough that is truly memorable.

My biggest criticism of this production is the decision to move the historical period from the time of the actual Macbeth (about 1000 A.D. in Scotland) forward about 900 years.  Judging by the costuming, the setting is somewhere in Europe around 1900, but there was enough inconsistency in the periods of the costuming to raise some doubts.  Victorian-era military costumes, but the servants dressed perhaps in 1920s outfits, and the non-military civilians in a hodgepodge of late 19th century and early 20th century dress.  The settings seemed rather English country manor.  Eric Owens as Macbeth was stalwart and generally large of voice but struck me as a bit uncomfortable in the role.  Melody Moore as Lady Macbeth was controversial.  I thought she was fine; some of the other audience members with whom I spoke were less complimentary.  As noted above, I thought Soloman Howard made a splendid Banquo.  Some last-minute switches had Marco Cammarota playing Macduff — and doing the part quite well — and Stephen Carroll singing Malcolm.  Both men, members of the Young Artists Program, earned their enthusiastic ovations at the end.  Colaneri was back on the podium, but seemed to me less attuned to this opera than to Candide.

We ended our Glimmerglass weekend with Vivaldi’s Cato in Utica, a matinee on Sunday.  Matinees in August at Glimmerglass can be trying.  The theater is not air conditioned.  When it was built, the need for air conditioning was not anticipated, but summers are hotter now than they were a few decades ago, and the atmosphere indoors became stifling by the end of the first half.  The side walls of the theater open up during intermission, and things seemed a bit more tolerable when the program resumed.  But my own reactions may have been affected by the unduly warm theater, as I found the first half a bit soporific.  The second half I found totally absorbing.

The opera was first presented in 1737.  Vivaldi’s operas were not published during his lifetime and the manuscript score and parts for the original first act went missing.  What survives is the libretto for the entire opera (a Metastasio product that was set by several composers during the early 18th century) and Vivaldi’s music for the original acts 2 and 3.  Conjectural reconstructions of the first act have  been performed and published, using music from other Vivaldi works that could be made to fit the libretto, but Glimmerglass decided not to take that route.  Although some extra material was interpolated for purposes of exposition, what was presented was effectively a torso of the original surviving parts from a recently published critical edition.  This is the first time I’ve heard a Vivaldi opera performed live, but I have recordings of many of Vivaldi’s operas as well as recital discs with collections of arias, so I’m familiar with the style.  With that as background, I thought this performance, as conducted by Ryan Brown, lacked the rhythmic crispness and excitement I’ve come to expect from this composer.  Tempi were a shade slower than ideal, I thought, and this is music that definitely benefits from period instruments rather than a modern instrumental ensemble.  So the musical setting was not ideal.  Thomas Michael Allen was suitably brooding and stern as the righteous Cato who ends his life rather than submit to Julius Caesar’s dominion.  Vivaldi wrote important roles — Caesar and Arbace – for castrati, approximated in this performance by countertenors.  John Holiday as Caesar did not overwhelm me with virtuosity, but seemed dramatically engaged.  Eric Jurenas as Arbace made a bigger impression on me.  I’m a bit of a countertenor maven, and for me the gold standards are such as Jaroussky, Sabadus, and Costanzo.  The men I heard in this Vivaldi performance were not in that league.   Megan Samarin was stunningly good as Marzia, Cato’s conflicted daughter.  Allegra De Vita was fine in the pants role of Fulvio, but these days I might just as soon hear a countertenor in that role.

On balance, I thought the Vivaldi and Mozart were tied for second place in my affections when ranking this year’s Festival offerings, and MacBeth came last, with Bernstein’s Candide in this fresh new conception the clear winner.

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6th Circuit: Obergefell Decision Irrelevant to Equal Protection Claim

A panel of the U.S. 6th Circuit Court of Appeals ruled on August 3 that the Supreme Court’s recent marriage equality decision, Obergefell v. Hodges, is irrelevant to an equal protection claim asserted against Cleveland, Ohio, police officers regarding the manner in which they arrested two gay men on April 8, 2011.  Referring to the “law-of-the-circuit” doctrine, Circuit Judge Alice M. Batchelder relied on pre-Obergefell 6th Circuit precedents to apply the “rational basis” test and find that even if plaintiffs’ counsel had not waived their equal protection claim, the police had a rational basis for refusing to let them wear pants for the ride to the police station and the booking process.  One member of the panel, Circuit Judge Jeffrey Sutton, dissented from this part of the ruling, but not on the merits.  Sutton found that the court should have ruled that the equal protection issue was waived by plaintiff’s counsel at oral argument and thus should not have been addressed by the court.

Steven Ondo and Jonathan Simcox, roommates, were returning home after several hours of drinking at 2:00 AM on April 2, 2011.  They “got into a heated argument outside their apartment building.”  A neighbor came out to confront them about the noise, and Simcox told him to “fuck off.”  “An altercation ensued between the three men,” wrote Judge Batchelder, “during which the neighbor identified himself as an off-duty police officer.”  Evidently the neighbor called the precinct, because later that night the police came and arrested the plaintiffs in their apartment, resulting in them spending two nights in jail.  The police followed up on the altercation with the off-duty officer, getting arrest warrants against Ondo and Simcox for “felonious assault on a police officer,” and a SWAT team showed up at their apartment building at 7:00 AM on April 8 to execute the warrant.  Ondo and Simcox were not dressed at the time, wearing only boxer shorts.  They allege that the police used homophobic slurs and when they asked to be allowed to put on pants, the officers said “faggots don’t wear pants in jail.”  Further, they claimed that one officer said “It’s a house full of fags here.”  They also allege that they were dragged down to the police station in their underwear and not given jumpsuits to wear until well after they were booked, an allegation that the trial judge found to be contradicted by other evidence.

They filed their 42 USC 1983 civil rights lawsuit against the City of Cleveland and 17 police officers in January 2012, but their complaint was deficient in specific factual allegations against specific officers and even an amended complaint fell short on this.  The City got several of the defendants dismissed from the case so that it was narrowed down to the SWAT team members, and then moved for summary judgment.  Responding to the s.j. motion, the plaintiffs alleged further facts trying to bolster their case in affidavits which made the allegations based on “personal knowledge and belief,” without specifying which facts were based on “personal knowledge” and which facts were based on “belief.”  The City moved to strike the affidavits and the court granted the motion, on the ground that only factual assertions based on personal knowledge were sufficient to ground the plaintiffs’ equal protection claim against specific police officers.  Then the court granted the City’s summary judgment motion.

A major part of the 6th Circuit’s opinion was devoted to explaining why the trial court was correct to strike the affidavits, and to examine the City’s further argument that plaintiffs had abandoned many of their claims at oral argument.  Ultimately, in the view of the majority of the panel, plaintiffs’ counsel had conceded at argument that if the Court of Appeals upheld the trial judge’s decision to strike the affidavits, the case was basically over, but, wrote Judge Batchelder, “Regardless of our stance on abandonment, on the remaining record the equal protection claim fails as a matter of law,” and this is where the court found that Obergefell made no difference to the analysis.  Plaintiffs’ counsel had stated at argument that the entire equal protection claim boiled down to the contention that the police refused to let the men wear pants over their boxer shorts because they were gay, and this constituted unconstitutional unequal treatment.  There was also a state law allegation of infliction of emotional distress.

Plaintiffs argued that “state actions involving homosexuals should trigger some form of heightened scrutiny under the Equal Protection Clause.”  Wrote Judge Batchelder, “First, Plaintiffs cannot demonstrate that the state action of which they complain burdens a fundamental right.  When the Supreme Court held that state laws against sodomy violate the Due Process Clause, it did so using the language of rational-basis review, rather than any form of heightened scrutiny,” citing Lawrence v. Texas.  “The Court did not hold that the Constitution includes a fundamental right to homosexual conduct.  Whether the Court’s recent decision in Obergefell v. Hodges recasts engaging in homosexual acts as a fundamental right is irrelevant, because the decision by the police relevant here does not impair Plaintiffs’ ability to engage in such conduct.  Nor can Plaintiffs establish that homosexuals are a suspect or quasi-suspect class.  The Court has never held that homosexuals satisfy the criteria for such classification.”  The court cited two cases for this assertion, neither of which deals with sexual orientation claims. “The Supreme Court has not recognized any new constitutionally protected classes in over four decades,” she continued, “and instead has repeatedly declined to do so.  Moreover, the Court has never defined a suspect or quasi-suspect class on anything other than a trait that is definitively ascertainable at the moment of birth, such as race or biological gender.  In Obergefell, the Court was explicitly asked by the petitioners and various amici to declare that homosexuals are a specially protected class, and thus that government actions that disfavor homosexuals are subject to heightened scrutiny.  But the Court held only that the Equal Protection Clause was violated because the challenged statutes interfered with the fundamental right to marry, not that homosexuals enjoy special protections under the Equal Protection Clause.”

Since the 6th Circuit has, in its pre-Obergefell rulings, always applied rational basis review to sexual orientation discrimination claims, the court decided that under the “law of the circuit” doctrine, it must do so in this case.  Applying that approach here, the court found that the police had provided an adequate basis for their decision to arrest the men and take them to the police station in their underwear — concern for the officers’ safety, as the two men were agitated and were being arrested for assaulting a police officer — which, said the court, “is presumed valid and rationally related to a legitimate public interest.  Therefore,” wrote Batchelder, “Plaintiffs’ grievance regarding being kept in their boxer shorts until the police could issue them jumpsuits, even if motivated in part by sentiments regarding homosexual behavior, still does not violate the Constitution.”

Judge Sutton, concurring in the court’s decision to affirm the district court’s grant of summary judgment, wrote that it was unnecessary to take on the equal protection issue, as the plaintiffs’ counsel at oral argument had waived the claim by conceding that if the decision to strike the affidavits was upheld the constitutional claim would have to be dismissed.  Judge Sutton, of course, was the author of the 6th Circuit’s opinion that was reversed by the Supreme Court in Obergefell v. Hodges.  In that opinion, he had found that the plaintiffs’ equal protection claim was not subject to heightened scrutiny, for essentially the same reasons that Judge Batchelder articulated in the panel opinion in this case.

Plaintiffs were represented by Sara Gedeon on the appeal.


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Justice Stevens on the Obergefell Decision

In a speech delivered at an American Bar Association function in Chicago on July 31, 2015, retired U.S. Supreme Court Justice John Paul Stevens had this to say about the Supreme Court’s marriage equality decision, Obergefell v. Hodges, 135 S. Ct. 2584 (2015) (from the Justice’s prepared text):

“Probably the most significant opinion announced during the Term was Justice Kennedy’s explanation for holding that the Constitution protects an individual’s right to marry a person of the same sex.  I was surprised by his decision to rely primarily on a substantive due process rationale rather than the Equal Protection Clause but, after reflection, I am persuaded that he was wise to do so.  The difference between categories of couples capable of producing children and those completely unable to do so surely provides a rational basis for treating the two categories differently, but the substantive due process doctrine is more appropriate for an all-or-nothing analysis.  The right to marry — like the right to decide whether to have an abortion, or the right to control the education of your children – fits squarely within the category of liberty protected by the Due Process Clause of the 14th Amendment.  Just as Potter Stewart’s reliance on substantive due process in Roe v. Wade, 410 U.S. 113 (1973), and Justice Harlan’s and Justice White’s reliance on the substantive content of the work ‘liberty’ in Griswold v. Connecticut, 381 U.S. 479 (1965), were far better explanations for those two correct decisions than the concept of ‘privacy’ developed by the majority opinions, I am persuaded that a fair reading of the word ‘liberty’ best explains the real basis for the Court’s holding in the marriage case.

“The point is strongly reinforced by the dissenting opinions which rely heavily on earlier decisions rejecting the substantive due process analysis in Lochner v. New York, 198 U.S. 45 (1905).  But those dissents incorrectly assume that our cases overruling Lochner rejected the entire doctrine of substantive due process, whereas in fact they merely rejected its application to economic regulation.  Indeed, it is ironic that all of today’s dissenters (except Justice Thomas) who accuse the majority of improperly resurrecting Lochner, came much closer to committing that sin themselves when they decided to rely on substantive due process as the basis for their conclusion that the Second Amendment applies to the States.  It borders on the absurd to assume that the word liberty does not include one’s right to choose a spouse, but does include a right to possess a firearm in one’s home.  Because today’s dissents may one day persuade their authors to reconsider their own earlier reliance on substantive due process, I think those dissents may have the unintended consequence of lending support for the position advocated in the final chapter of my book.

“I endorse the Court’s holding that the Due Process Clause of the 14th Amendment protects an individual’s right to choose his or her spouse but I remain unpersuaded that that Clause also protects an individual’s right to use a gun.  The dissenters have things backward when they argue that it protects the latter but not the former.”

I am rather surprised to read Justice Stevens’ view that the equal protection issue in the marriage equality case was between categories defined by “couples capable of producing children” and “those completely unable to do so.”  After all, many different-sex couples are either incapable of producing children or uninterested in doing so, yet they are allowed to marry, while many same-sex couples are capable of producing children (with the assistance of a sperm donor or a surrogate).  Both kinds of couples are known to acquire children through adoption as well.  To me, the fact that many, but not all, different-sex couples can have children without the assistance of a third party, makes little difference, if one’s concern is about the raising of children, since different-sex and same-sex couples raising children are similarly situated with respect to one of the main reasons why the state fosters the institution of marriage with its reciprocal obligations.  And it seems clear that the willingness of the state to allow different-sex couples to marry without proof of fertility or intention to have children means that the ability to procreate is not a sine qua non of the right to marry.  Be that as it may, however, the Court’s decision to use substantive due process as its principal doctrinal tool in Obergefell meant that it could decide that case without having to commit itself on the question whether sexual orientation is a classification requiring heightened scrutiny of challenged government policies in discrimination cases.  If avoiding that issue made it possible to have a solid five-member majority supporting one opinion — as Justice Ruth Bader Ginsburg’s recent comments suggest – then it was probably worth while.  But what it means is that Obergefell, as a practical matter, is not relevant as an equal protection precedent for any issue other than the right to marry and to have marriages recognized and accorded full rights by the states, since it was decided under the fundamental rights branch of equal protection doctrine rather than the suspect classification branch.  This is well illustrated by the 6th Circuit’s opinion in Ondo v. City of Cleveland, 2015 Westlaw 4604860 (Aug. 3, 2015), about which I will be writing shortly.

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