New York Law School

Art Leonard Observations

Florida Appeals Court Calls for Florida Supreme Court to Decide Marriage Equality Question

In a highly unusual move, most of the judges on the Florida Second District Court of Appeal have agreed to certify to the state’s Supreme Court the question whether a Florida trial court has jurisdiction over a divorce proceeding of a same-sex couple who were married in another state.  A panel of the court had rejected a request by the parties to refer the case to the Supreme Court on June 26, but the parties then asked for the entire court (the “en banc” court in legal jargon) to consider their request.  Thirteen judges participated, voting 10-3 in favor of certifying the case, in a ruling issued on August 27 in Shaw v. Shaw, Case No. 2D14-2384.

Mariama M. Changamire Shaw and Keiba Lynn Shaw were married in Massachusetts in 2010 and thereafter moved to Florida.  Their marriage broke down.  They separated in 2013, and Mariama filed a divorce action in Hillsborough County.  The women negotiated a voluntary settlement agreement and were looking to have the court incorporate their agreement into a final judgment dissolving their marriage, but the Hillsborough circuit court, on its own motion, decided that it did not have jurisdiction over the case.

The circuit court relied on Florida’s Marriage Amendment, which prohibits recognition of same-sex marriages, and a similar statutory prohibition, and took the position that it could not dissolve a marriage that it was prohibited from recognizing.  The court said that it did not have “jurisdiction to dissolve that which does not exist under law.”  The state’s Attorney General, Pam Bondi, had been notified about this case, but her office did not participate.

Mariama filed an appeal from the ruling, and Keiba filed a cross appeal, both asking for the same thing: that the 2nd District Court of Appeal reverse the jurisdictional ruling and direct the circuit court to decide their divorce case.  However, seeking to avoid delay and noting the pendency of marriage equality cases, including divorce cases, in other Florida counties, they suggested that the court of appeal pass the case up to the Supreme Court for a quicker resolution that would have statewide effect.

The ten-judge majority, in a group opinion  not attributed to any of the individual judges, noted the four prior Florida circuit court marriage equality decisions, including one from another county involving a divorce, some of which have already been appealed to the 3rd District Court of Appeal, and considered that the issues raised by this case have statewide importance.  This conclusion was reinforced in a motion filed by the Family Law Section of the Florida Bar and the Florida Chapter of the American Academy of Matrimonial Lawyers, seeking to participate in the case as amicus curiae because of the importance of this case beyond the immediate parties.  The majority of the 2nd District court concluded that “the order on appeal requires immediate resolution by the Florida Supreme Court because the issues pending are of great public importance and will have a great effect on the proper administration of justice throughout the state.”

The majority, contrary to the dissent, stated that the case did not merely raise the issue whether the Full Faith and Credit Clause of the U.S. Constitution requires Florida courts to recognize same-sex out of state marriages of Florida residents for purposes of divorce.  Taking note of the range of trial court decisions around the state that are pending on review, the court said that the issue is “whether Florida’s ban on same-sex marriage and the prohibition on recognizing such marriages unconstitutionally limits various constitutional guarantees including full faith and credit, access to courts, equal protection, and the right to travel.”  Although the circuit court’s decision did not give any sort of thorough analysis to these questions, relying solely on the state constitutional and statutory prohibition on recognizing such marriages as conclusive on the jurisdictional question, the majority observed that the broader constitutional questions had been briefed and argued by the parties and, in light of the contrary decisions by several other circuit courts holding the ban unconstitutional under the 14th Amendment of the U.S. Constitution, there was an urgent question of constitutional magnitude for the state’s highest court.

“Resolution of the constitutional questions will no doubt impact far more individuals than the two involved here,” wrote the court.  “And there can be little doubt that until the constitutional questions are finally resolved by the Florida Supreme Court or the United States Supreme Court, there will be a great impact on the proper administration of justice in Florida.  Similarly, in light of those questions, it seems clear that this a matter of great public importance.”

Judge Chris Altenbernd penned the dissent for himself and two other judges, rejecting the notion that this was a matter that should be passed directly to the state’s supreme court.  “Although this case is of importance to these parties,” he wrote, “I cannot agree that this case is a proper subject for a pass through.”  He pointed out that the circuit court’s order “contains no discussion of any constitutional argument and no express constitutional ruling.  Most important, it has no discussion of the constitutionality of these provisions under the Full Faith and Credit Clause of the U.S. Constitution.”  Both parties had appealed the order, which means, he wrote, “Apparently, no party intends to argue that the circuit court correctly dismissed this dissolution proceeding.  The Attorney General has made no appearance in this case, and we do not know whether the Attorney General will argue that Florida law constitutionally prohibits these Florida residents from obtaining a divorce.”

In short, Altenbernd contended, this was an appropriate case for the district court of appeal to hear arguments and render a ruling.  As far as he was concerned, the “dispositive issue in this case is whether Florida, under the Full Faith and Credit Clause of the U.S. Constitution, must give credit to these lawful out-of-state marriages for the purpose of dissolution.  Presumably, this issue is comparable to the question of whether, after January 1, 1968, Florida was required to give such credit to lawful, out-of-state common law marriages.”  He pointed out that when that question arose, it was decided consistently by several of the state’s district courts of appeal without any need to refer the question directly to the Supreme Court.

“Given that same-sex marriages are a recent development in other states,” he continued, “I am not convinced that Florida’s courts will be clogged in the next three years with out-of-state same-sex couples seeking dissolution.  I cannot certify that this order will have ‘a great effect on the proper administration of justice throughout the state’ requiring immediate review in the supreme court.”  He stated his confidence that the court of appeal could “ably consider this appeal and reach a proper resolution,” and pointed out that such a decision would have statewide effect “unless another district court disagrees with us” and might never require the attention of the Supreme Court.

Nowhere mentioned in this decision is the federal Defense of Marriage Act (DOMA), which provides in Section 2 that no state is required to give full faith and credit to same-sex marriages performed in other states.  This is the section of DOMA that was not addressed by the U.S. Supreme Court last year in U.S. v. Windsor, although there is serious debate whether Congress had authority to enact this exception to the full faith and credit requirement stated in the Constitution.  So far, DOMA Section 2 has generally not been mentioned or given any weight in the many federal district court rulings over the past year in marriage recognition cases.  The courts have, with one exception from Tennessee, ruled in those cases that failing to recognize such marriages violates the Equal Protection Clause of the 14th Amendment.

Judge Altenbernd suggested that the court could adopt an interpretation of the state’s Marriage Amendment under which Florida courts could entertain divorce petitions, on the theory that dissolving same-sex marriages is not inconsistent with refusing to recognize them.  Such a ruling, based solely on an interpretation of the Florida Constitution, would not present any federal question and would not be reviewable by the U.S. Supreme Court.  It would finally resolve the problem of “wedlock” for married same-sex couples living in Florida.

However, such a ruling would leave unresolved the question pending before the 3rd District Court of Appeal in several other cases: whether same-sex couples have a constitutional right to marry in Florida.  That question requires deciding whether the Florida Marriage Amendment violates the federal Constitution.

If the Florida courts were to decide that the divorce jurisdiction issue cannot be decided without analyzing the 14th Amendment or other federal constitutional provisions, their decisions would be subject to appeal to the U.S. Supreme Court and probably stayed pending appeal.  Thus, it is possible that a Florida Supreme Court decision in this divorce case would not finally settle the question.

Mariama is represented in this case by Brett R. Rahall and Ellen E. Ware of Tampa.  Keiba is represented by Deborah L. Thomson, Lara G. Davis and Adam B. Cordover, all of Tampa.

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7th Circuit Panel Roughs Up State Attorneys in Marriage Equality Arguments

A panel of three judges of the U.S. Court of Appeals for the 7th Circuit, based in Chicago, gave a very rough time to attorneys from the states of Indiana and Wisconsin on August 26 during oral arguments about marriage equality appeals from those states.  Three district court rulings from Indiana and one from Wisconsin issued earlier in 2014 had found unconstitutional those states’ refusal to allow same-sex couples to marry or to recognize their marriages contracted in other jurisdictions, and the states had appealed.  Indiana Solicitor General Thomas M. Fisher and Wisconsin Assistant Attorney General Timothy C. Samuelson probably anticipated tough questioning from Democratic appointees Ann Claire Williams and David Hamilton, but one suspects they were not anticipating the kind of tough cross-examination they got from Richard Posner, the most senior member of the panel who was appointed to the court by President Ronald Reagan back in the 1980s.

Judge Posner, a father of the law-and-economics movement and a devoted empiricist, actually mocked the arguments he was getting from the state attorneys, but anyone who has been following the trend of marriage equality decisions over the past year might have predicted this result in light of Posner’s record of relentlessly pursuing facts and logic in his decisions.  Posner pressed both attorneys for some reason why neither state would allow or recognize same-sex marriages.  Referring to data showing that about 250,000 children nationwide are living with gay adoptive parents, about 3,000 of whom are in Indiana, he pressed Fisher for a reason why Indiana would deny those children the same rights and security of having married parents that are accorded to the adopted children of married couples, and Fisher could give him no real answer.

Wouldn’t it help those children if their parents could marry, asked Posner?   What’s better for the welfare of these children — that their parents be allowed to marry or prevented from marrying?  Posner’s insistent questions followed up on Supreme Court Justice Anthony Kennedy’s comment in his opinion for the Court in U.S. v. Windsor about the way denial of marriage to same-sex couples humiliates their children, who are being told by the state that their families are second class and not worthy of marriage.

Fisher insisted, as virtually the sole justification for Indiana’s marriage ban, on a state interest in making marriage available to different-sex couples so that their children would be tied to their biological parents in stable families.  But, having conceded that the state’s interest extended to the families in which children are raised, he could not satisfactorily answer questions from all three judges about how excluding same-sex couples from marriage advanced that interest.  If you let gay people adopt, asked Posner, why not let their children have the same benefits?

Fisher’s response – that same-sex couples can only get children intentionally and don’t need to be “nudged” into marrying – seem puny.  Posner also pointed out the large number of children in foster care who needed adoptive parents and asked whether letting same-sex couples marry would lead to more adoptions.  Fisher disclaimed knowledge about such a result, but Posner, the law-and-economics expert, suggested that it is less expensive for married couples to adopt than for unmarried couples to adopt precisely because of all the benefits that accompany marriage.

Judge Hamilton, seizing upon an argument in Indiana’s brief claiming that the state’s marriage statute did not discriminate based on sexual orientation, seemed to throw Fisher into a panic by suggesting that the state was conceding that its law classified based on sex and was thus subject to heightened scrutiny under the Equal Protection Clause.  Virtually all judges seem to agree that if heightened scrutiny is used, bans on same-sex marriage are doomed to fail.

Samuelson did not fare much better arguing for Wisconsin.  He contended that the due process clause was a source of negative rights but not positive rights, and asked the court to consider whether Wisconsin is required to have a marriage law at all.  He suggested that if Wisconsin repealed its marriage law and substituted domestic partnerships, nobody would have cause for complaint because, in his view, the Due Process Clause does not contain an affirmative right to marry.  He argued that all the prior Supreme Court marriage cases were concerned with negative rights, not affirmative rights, in that the Court was striking down instances in which the state had interfered with existing marriage rights.  The judges did not seem impressed by this argument and gave it short shrift.

During Samuelson’s argument on behalf of Wisconsin, Judge Posner really cut to the chase.  As Samuelson blundered on about tradition and “Burkean values” Posner finally asked, “Isn’t this based on hate?” and referred to the history of “savage discrimination” against gay people, including discrimination by government.  Samuelson countered by pointing out that Wisconsin was the first state to pass a statute banning discrimination because of sexual orientation in housing, employment and public accommodations.  Posner responded, “Why draw the line there?”  Why not cease discriminating in marriage?  To Samuelson’s response that this was a matter of “legislative policy,” Posner said, “Give me a rational basis for that legislative policy,” but Samuelson could not.

What did distinguish the 7th Circuit argument from the approaches of the 10th and 4th Circuit courts of appeals, which ruled in marriage equality cases over the summer, was that the judges seemed more inclined from their questioning and comments to treat this as an Equal Protection case rather than a case about a fundamental right to marry.  They pressed the attorneys from plaintiffs — Lambda Legal’s Camilla Taylor, the Indiana ACLU’s Kenneth Falk, and the National ACLU LGBT Rights Project’s James Esseks – for some limiting principle by which to described a constitutional right to marry.  Would that endanger laws forbidding incest, first-cousin marriages, polygamy?  Esseks came back with the strongest answer, pointing to Justice Kennedy’s description of the liberty encompassed by the Due Process Clause in his opinion for the Court in Lawrence v. Texas, the 2003 decision striking down that state’s homosexual sodomy ban.  Kennedy listed the right to select a marital partner as one of the fundamental rights within the scope of constitutionally-protected liberty, and commented, to the outspoken chagrin of Justice Scalia, that homosexuals had the same liberty interest.  Scalia’s dissent asserted that once the Court had eliminated tradition and moral disapproval as grounds for adverse treatment of gay people, there seemed no basis to deny gay people the right to marry.  His comment has been noted by many of the federal trial judges who have struck down marriage bans in recent months.

Most of the questioning for the plaintiffs’ attorneys focused on how to describe the liberty interest and where to find limiting principles for it.  Hamilton particularly suggested that equal protection provided the stronger argument for plaintiffs, since the discriminatory purpose and effect of the marriage bans was clear.  Esseks made a strong pitch for the court to use heightened scrutiny if it decided the case using an equal protection theory, but the judges seemed unreceptive.  Judge Williams suggested that the concept of “heightened scrutiny” was not helpful.  To her, the issue was whether the challenged laws caused harm, and whether there was some balancing benefit to the state that justified the harm.  Her questioning suggested that she understood the harms very well, but that attorneys for the states were unable to name any concrete benefits associated with these bans.

During Fisher’s brief rebuttal argument, Judge Posner came back to his issue of children of adoptive parents, pushing Fisher again to give a reason for denying them benefits, and asking how the marriage ban could possibly advance the state’s interests.  Do you really believe that you get less extramarital sex by pushing heterosexuals to marry, he asked.  You let all these sterile people marry, he commented.  Are they supposed to be role models for channeling procreation?  He characterized this argument as ridiculous.

Posner asked Fisher whether he read the amicus brief filed by the Family Equality Council, which was devoted to relating the stories of harms incurred by children whose parents were not allowed to marry.  Fisher claimed to have read it but not remembered it.  Posner referred to the “harrowing information” about problems created for children raised by couples forbidden to marry, the misfortunes they suffered, and asked incredulously whether Fisher was not moved by that.  He also asked whether Fisher had any empirical basis for anything he had said, in a void dripping with sarcasm.

It was hard to imagine that either of the appellant states are going to win even one vote from this panel, if the judges vote along the lines suggested by their questions and comments during the oral argument.


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Oregon Federal Court Refuses to Dismiss Title VII Retaliation Claim by Lesbian Employee

U.S. District Judge Michael McShane ruled on August 21 that a lesbian former employee could sue a hospital under Title VII of the federal Civil Rights Act for 1964 for retaliatory discharge, even though the complaints she claims to have made before her discharge concerned sexual orientation discrimination.  Bennefield v. Mid-Valley Healthcare, 2014 U.S. Dist. LEXIS 116554 (D. Or.).  Title VII outlaws discrimination because of sex, but federal courts have generally held that this does not include sexual orientation discrimination. While finding that the plaintiff had not stated valid Title VII claims of discrimination and retaliation because of religion, and noting that the plaintiff had withdrawn her sexual orientation discrimination claim under Title VII, McShane’s ruling on the retaliation claim preserved the court’s federal question jurisdiction, which also extends to supplementary claims under the Oregon Whistleblower statute and the state’s human rights law, which does forbid sexual orientation discrimination.

The plaintiff, Stephanie Bennefield, began working at Mid-Valley on May 2, 2011.  During her probationary period, she came out to many co-workers as a lesbian.  Bennefield alleges that one co-worker created a hostile work environment for Bennefield after learning that she was a lesbian, including referring to her as a “disgusting lesbian” and a “stupid lesbian” and becoming uncooperative in their work, including provoking Bennefield to walk out of the operating room in disgust due to her refusal to cooperate.  Bennefield claims to have made numerous informal complaints to supervisors, but it was after she made a formal complaint to the Human Resources Department that she was notified of her discharge.  One comment by this hostile employee referring to religion was the basis for Bennefield’s claim of religious discrimination, which Judge McShane did not find persuasive.

Bowing to the fact that federal courts generally do not interpret Title VII’s sex discrimination ban to extend to sexual orientation discrimination, Bennefield agreed to dismissal of her Title VII sexual orientation discrimination claim.  Ultimately, the court’s continued jurisdiction over her case turned on whether her Title VII retaliation claim was valid.  The Hospital contended that her supervisor had decided to discharge her before she filed her formal complaint, and the supervisors disavowed having received any informal complaints from Bennefield concerning the conduct of this co-worker, but those are factual disputes to be resolved at trial if Bennefield has stated a cause of action sufficient to survive the hospital’s summary judgment motion.  The sticking point was in deciding whether Title VII’s retaliation provision extends to dismissal for complaining about sexual orientation discrimination.

The statute, by its terms, prohibits an employer from retaliating against an employee “because he has opposed any practice made an unlawful practice by this subchapter.”  42 USC sec. 2000e-3(a).  On its face, this would suggest that complaints about discriminatory conduct that is not itself forbidden by Title VII could not provide the foundation for a Title VII retaliation claim.  But Judge McShane noted that courts – and particularly the 9th Circuit, whose rulings are precedential for the district court in Oregon – had been willing to extend the protection of this provision to employees who believed in good faith that they were complaining about conduct that violates Title VII.  The question would be whether the plaintiff held a “reasonable belief” to that effect.

“Defendants… appear to conclude that mistakes of law cannot support a Title VII retaliation claim,” he wrote.  “I think that argument goes too far.  An employee may bring a retaliation claim even if the employee makes a mistake of law in thinking that the employer engaged in prohibited conduct,” citing Moyo v. Gomez, 40 F.3d 982 (9th Cir. 1994).  “Whether the error is one of fact or law is irrelevant, so long as the mistake is made in good faith,” he continued, citing Jurado v. Eleven-Fifty Corp., 813 F.2d 1406 (9th Cir. 1987).  “Title VII is construed broadly, and ‘this directive applies to the reasonableness of a plaintiff’s belief that a violation occurred, as well as to other matters.’  Although the reasonableness prong is an objective standard, courts must take into account ‘the limited knowledge possessed by most Title VII plaintiffs about the factual and legal bases of their claims.’”

Judge McShane does not mention, but could well have done, that public opinion polls show that a majority of the public incorrectly believes that anti-gay employment discrimination is illegal under Title VII, even though most federal courts construe Title VII otherwise and most states have not banned sexual orientation discrimination in employment.  This suggests that many employees – especially those whose job does not require them to keep up with legal issues – assume that anti-gay discrimination is unlawful, and that they may expect protection against retaliation if they complain to a supervisor about such discrimination.  The situation is complicated in a state like Oregon, where the state forbids sexual orientation discrimination and employees may presume that they are protected so long as their complaint concerns conduct that is unlawful, regardless whether the anti-discrimination law in question is state law or federal law.  Thus, Bennefield was complaining about unlawful discrimination, but it was not discrimination made expressly unlawful by Title VII.

“That discrimination based on one’s sexual orientation turned out to not be prohibited under Title VII does not make Bennefield’s belief objectively unreasonable,” wrote McShane.  In making this conclusion, I take into account ‘the limited knowledge possessed by most Title VII plaintiffs about the factual and legal bases of their claims,’” again quoting from a 9th Circuit opinion.  McShane also rejected the defendant’s argument that Bennefield could not demonstrate that her discharge was due to a complaint that she filed after her supervisor had already decided to discharge, because Bennefield had alleged numerous informal complaints predating that decision.  He also noted that Bennefield’s pleadings contradict the employer’s contentions about her deficiencies as an employee, creating a material fact issue that it would be improper to resolve on summary judgment.  “Viewed in the light most favorable to Bennefield,” he concluded on this point, “she has met her burden of demonstrating defendants’ proffered reasons for firing her were pretextual.”

Bennefield is represented by Carl Lee Post, Cynthia J. Gaddis and Daniel J. Snyder of the Law Offices of Daniel Snyder in Portland, Oregon.  Judge McShane is the first openly-gay person to serve as a U.S. District Judge in the District of Oregon, and recently rendered the ruling holding Oregon’s ban on same-sex marriage unconstitutional.  Because the state decided not to appeal his ruling, Oregon recently became a marriage equality jurisdiction.

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Florida Federal Court Rules for Marriage Equality; 10th Circuit Stays Colorado Ruling; Virginia Clerk Petitions for Certiorari

There were several developments on the marriage equality front late last week.  On August 21, U.S. District Judge Robert L. Hinkle, of the Northern District of Florida, granted a preliminary injunction to the plaintiffs in Brenner v. Scott, 2014 WL 4113100, a consolidation of two marriage equality cases, but stayed his ruling pending the state’s appeal to the U.S. Court of Appeals for the 11th Circuit.  On the same day, two judges of the U.S. Court of Appeals for the 10th Circuit granted a motion by Colorado Attorney General John Suthers to stay a marriage equality Order by U.S. District Judge Raymond P. Moore, who had ruled on July 23 that Colorado’s same-sex marriage ban violates the 14th Amendment.  Finally, on August 22, Norfolk County, Virginia, Clerk of Court George E. Schaefer, III, one of the defendants in the Virginia marriage equality case, filed a Petition for Certiorari with the U.S. Supreme Court, seeking review of the 4th Circuit’s July 28 decision finding Virginia’s same-sex marriage ban unconstitutional.

Judge Hinkle’s ruling on the merits was relatively brief in light of the growing list of prior federal marriage equality rulings that has accumulated since the Utah decision from last December 20 by District Judge Robert Shelby.  In his introductory section, after briefly summarizing the background of the case, Judge Hinkle wrote, “Indeed, except for details about these specific parties, this opinion could end at this point, merely by citing with approval the circuit decisions striking down state bans on same-sex marriage,” citing the 10th Circuit’s Utah and Oklahoma cases and the 4th Circuit’s Virginia case.  But since Hinkle was the first district court to rule on a marriage equality claim within the 11th Circuit (which includes Alabama and Georgia as well as Florida), he clearly felt obliged to provide an explanation for his ruling.

He explained the obligation of federal courts to strike down unconstitutional state laws “when necessary to the decision in a case or controversy properly before the court, so the suggestion that this is just a federalism case — that the state’s laws are beyond review in federal court – is a nonstarter.”  He also noted that because 20 out of the 22 plaintiffs in the cases before him were seeking recognition of marriages performed in other states, “the defendants’ invocation of Florida’s prerogative as a state to set the rules that govern marriage loses some of its force.”  He also found that the “general framework” that applies to the plaintiffs’ rights to due process and equal protection “is well settled.”

Relying on the Virginia interracial marriage decision from 1967, Loving v. Virginia, and subsequent rulings by the Supreme Court, he agreed with the 10th and 4th Circuits that this case involves a fundamental rights claim, requiring strict scrutiny of the state’s purported justifications for denying marriage rights to same-sex couples.  Judge Hinkle provided a very clearly written argument as to why this is a fundamental rights case.

In discussing the application of strict scrutiny, he wrote, “A state may override a fundamental right through measures that are narrowly tailored to serve a compelling state interest.  A variety of justifications for banning same-sex marriages have been proffered by these defendants and in many other cases that have plowed this ground since Windsor [the Supreme Court's 2013 DOMA decision].  The proffered justifications have all been uniformly found insufficient.  Indeed, the states’ asserted interest would fail even intermediate scrutiny, and many courts have said they would fail rational-basis review as well.  On these issues the circuit decisions in Bostic, Bishop, and Kitchen are particularly persuasive.  All that has been said there is not repeated here.”

However, Judge Hinkle was moved to address the state’s procreation argument.  “The defendants say the critical feature of marriage is the capacity to procreate.  Same-sex couples, like opposite-sex couples and single individuals, can adopt, but same-sex couples cannot procreate.  Neither can many opposite-sex couples.  And many opposite-sex couples do not wish to procreate.  Florida has never conditioned marriage on the desire or capacity to procreate.  Thus individuals who are medically unable to procreate can marry in Florida.  If married elsewhere, their marriages are recognized in Florida. The same is true of individuals who are beyond child-bearing age.  And individuals who have the capacity to procreate when married but who voluntarily or involuntarily become medically unable to do so, are allowed to remain married.  In short, the notion that procreation is an essential element of a Florida marriage blinks reality.”

“Indeed,” Hinkle continued, “defending the ban on same-sex marriage on the ground that capacity to procreate is the essence of marriage is the kind of position that, in another context, might support a finding of pretext. It is the kind of argument that, in another context, might be ‘accompanied by a suspicion of mendacity.’  The undeniable truth is that the Florida ban on same-sex marriages stems entirely, or almost entirely, from moral disapproval of the practice.  Properly analyzed, the ban must stand or fall on the proposition that the state can enforce that moral disapproval without violating the Fourteenth Amendment.”  And who is Judge Hinkle’s source for this assertion?  Our old unintended ally in the marriage equality struggle, Supreme Court Justice Antonin Scalia.  Judge Hinkle quotes his statements to this effect from Scalia’s dissent in Lawrence v. Texas, the 2003 sodomy law decision.

“In short,” wrote Hinkle, “we do not write on a clean slate.  Effectively stripped of the moral-disapproval argument by binding Supreme Court precedent, the defendants must fall back on make-weight arguments that do not withstand analysis.  Florida’s same-sex marriage provisions violate the Due Process and Equal Protection Clauses.”  The judge went on quickly to dispose of the state’s remaining argument that his ruling was precluded by the Supreme Court’s 1972 dismissal of a marriage equality appeal from Minnesota in Baker v. Nelson.  “Every court that has considered the issue has concluded that the intervening doctrinal developments — as set out in Lawrence, Romer, and Windsor – have sapped Baker’s precedential force,” he wrote.

He also rejected the argument that he was bound by an 11th Circuit ruling issued shortly after Lawrence, in which that court resisted a constitutional challenge to Florida’s statutory ban on gay people adopting children, pointing out that it was a rational basis case, and that the state courts had subsequently invalidated the statute under the state constitution.  According to Judge Hinkle, that 11th Circuit ruling makes it the “law of the circuit” that sexual orientation equal protection claims do not get heightened scrutiny, but since he was treating this case as a fundamental rights claim, that was not relevant to his decision.

Judge Hinkle concluded that plaintiffs were entitled to a preliminary injunction barring Florida from enforcing its ban.  However, he found that there is a “substantial public interest in implementing this decision just once – in not having, as some states have had, a decision that is on-again, off-again.”  Thus, although he might be inclined to deny a stay pending appeal, the examples from the past year counseled against that route.  “There is a substantial public interest in stable marriage laws,” he wrote.  “A stay thus should be entered for long enough to provide reasonable assurance that the opportunity for same-sex marriages in Florida, once opened, will not again close.  The stay will remain in effect until stays have been lifted in Bostic, Bishop, and Kitchen [the 10th and 4th Circuit cases that have been stayed pending Supreme Court appeals], and for an additional 90 days to allow the defendants to seek a longer stay from this court or a stay from the 11th Circuit or the Supreme Court.”

The judge did make one exception, however, for a plaintiff who was seeking to have a properly completed death certificate for her deceased spouse.  “There is little if any public interest on the other side of the scale,” wrote Hinkle.  “There is no good reason to further deny Ms. Goldberg the simple human dignity of being listed on her spouse’s death certificate.  Indeed, the state’s refusal to let that happen is a poignant illustration of the controversy that brings us here.”

In the course of his ruling, Hinkle dismissed as defendants the governor and attorney general, finding that other state officials who were responsible for administering the relevant laws directly were the most suitable defendants.  He directed that Florida’s Surgeon General “must issue a corrected death certificate for Carol Goldwasser showing that at the time of her death she was married to Arlene Goldberg,” and set a deadline of the later of September 22, 2014 or 14 days after all information is provided that would normally be necessary to complete a death certificate.

Florida Attorney General Pam Bondi reacted to the decision by reaffirming her commitment to defend the Florida marriage ban.  Appeals from four state court rulings are already pending in the Florida court of appeal, and Bondi has argued that these cases should be put “on hold” as other appellate cases are going forward to the Supreme Court.  Presumably she will notice an appeal of Judge Hinkle’s decision with the 11th Circuit, but she might ask the Circuit to delay scheduling consideration of the case until the Supreme Court acts on the petitions from Utah, Virginia, and one expected to be filed from Oklahoma.  However, the plaintiffs would be expected to strongly oppose any such request, arguing that any delay in vindicating their constitutional rights would impose irreparable injuries on the plaintiffs.

Judge Hinkle was nominated to the federal bench by President Bill Clinton in 1996.  The two cases the judge was deciding were brought by private attorneys and the ACLU of Florida.

The 10th Circuit’s decision to stay the Colorado ruling was fully expected, in light of that court’s decision to stay its own Utah and Oklahoma rulings while the defendants in those cases petitioned the Supreme Court for review.  The brief Order from the court cited those prior actions and said that this stay was being issued “in the interests of consistency,” noting as well that just the day before the Supreme Court had issued a stay in the 4th Circuit’s Virginia case.

In that Virginia case, George Schaefer’s petition for Supreme Court review sounded very much like the petition filed earlier by the state of Utah in seeking review of the 10th Circuit’s marriage equality decision.  Schaefer argued that this is at heart a federalism case — who decides whether same-sex couples can marry, federal courts or the Virginia legislature and electorate? — and, echoing Chief Justice John Roberts’ dissent in the Windsor case, that the 4th Circuit’s disposition of the case was inconsistent with Windsor.  He also argued that the 4th Circuit had not properly identified the right at issue, thus mistakenly holding that plaintiffs were not seeking the recognition of a new constitutional right, but rather the existing right to marry.  Perhaps the most salient part of Schaefer’s petition was his argument about why the Court should grant his petition rather than the one filed a few weeks ago by Virginia Attorney General Mark Herring.  Herring, who has become a marriage equality advocate and who directed that the state “change sides” in this lawsuit, filed his petition for review even though he agreed with the 4th Circuit’s ruling, pointing out that the state would continue to enforce the marriage ban until instructed not to do so in a definitive ruling and that he wanted to move the case forward expeditiously to the Supreme Court.  Schaefer point out that as a consistent, vigorous defender of the ban, he was the better party to appeal the 4th Circuit’s ruling to the Court.  He also pointed out that this would not preclude Herring from participating as an amicus on the side of the plaintiffs.

Schaefer hired S. Kyle Duncan of Washington D.C. and two lawyers from Chesapeake, Virginia, to represent him on the Supreme Court appeal.  The plaintiffs are represented by lawyers from the ACLU and Lambda Legal together with pro bono attorneys from private firms in the Harris case (Virginia class action) and Ted Olson and David Boies for the American Foundation for Equal Rights in the Bostic (individual plaintiffs) case.  If the state of Virginia gets to argue in the Supreme Court, it would be represented by Solicitor General Stuart Raphael, who signed Herring’s petition to the Court.

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Supreme Court Stays Virginia Marriage Ruling

The Supreme Court issued an unsigned order today staying the 4th Circuit’s mandate in Bostic v. Schaefer, the Virginia marriage equality case.  The 4th Circuit panel had rejected Prince William County Clerk Michele McQuigg’s motion to stay pending Supreme Court review, and McQuigg promptly renewed her request for a stay by filing the motion with Chief Justice John Roberts.  Roberts requested input from the other parties, and then referred the matter to the full Court, which issued the unsigned order on August 20.  If the order had not been issued, the 4th Circuit’s ruling would have gone into effect tomorrow morning, August 21, at 8 am.

Virginia Attorney General Mark Herring has already filed a petition for certiorari with the Supreme Court seeking review and affirmance of the 4th Circuit’s decision.  He had supported McQuigg’s motion for a stay.  The plaintiffs in the underling cases, represented by the ACLU and Lambda Legal, had opposed the stay request, and urged the Court that if it were to stay the 4th Circuit ruling, it move quickly to grant cert and decide the case on the merits.

County clerks and various licensed marriage celebrants in Virginia were already gearing up for the possibility of issuing licenses and performing ceremonies on August 21, since Virginia law does not require couples to observe any waiting period after getting their licenses.  But the Supreme Court’s granting of the stay was really no surprise, because it stayed the 10th Circuit’s Utah marriage ruling and, as lower courts have generally acknowledged, sent a clear signal that if a state wants to appeal a marriage equality ruling, the Supreme Court is willing to stay the ruling pending appeal.

If one applies the “guidelines” that the Supreme Court has set out in the past as its standard for granting stays pending appeal, then one can attribute to this stay ruling a view among the Justices that it is likely that a petition for certiorari will be granted in a marriage equality case this term, that there is at least a fair possibility that the Supreme Court might reverse the 4th Circuit’s decision, that irreparable harm to the state might result from allowing the 4th Circuit’s decision to go into effect and the balance of equities weighs in favor of the party seeking the stay.  But I would question how stringently the Court is applying these standards, and I think the issuance of this stay is more about politics and prudence than about applying these tests.

On the one hand, it seems highly likely to me that the Court will grant cert in one of the pending marriage equality cases.  Since U.S. v. Windsor last year, the Court’s latest word on same-sex marriage, was a 5-4 decision, there is certainly a “fair” possibility that the swing voter in the prior case could swing the other way on this one, and marriage equality proponents should not count any chickens before they are hatched.  But the rhetoric of Justice Anthony Kennedy’s opinions in Windsor, Lawrence v. Texas and Romer v. Evans strongly suggests that he may rule similarly in favor of the plaintiffs-respondents if the Court grants cert in the Utah, Oklahoma or Virginia cases.  As to irreparable harm, unless one accepts without question the contention that a state suffers irreparable harm every time a federal court blocks the enforcement of a state law, no matter how ill-conceived or potentially unconstitutional is the law, I have trouble seeing it.  Now that same-sex couples have been getting married in 19 states and the District of Columbia, in some states for several years, it is possible to see quite clearly that allowing such marriages to take place or be recognized does not cause any irreparable harm to the states.  In terms of the balance of the equities, it seems pretty clear that the harm to a state is to its “sovereign dignity” but will not adversely affect the public welfare or the economy of the state or its institution of marriage, whereas delaying the marriage rights of same-sex couples could clearly work irreparable injuries to them in terms of dignitary and economic losses, and even loss of life and liberty.  So the balance of the equities on these stay petitions clearly favors the respondents, in my opinion.

At any rate, what the Supreme Court says, even without explanation of its reasoning, is binding upon all parties, so the 4th Circuit’s mandate is stayed.

In its Order, the Court is very specific in providing that the stay will automatically be dissolved if the Court denies the petition for certiorari that Clerk Michele McQuigg is expected to file.  This suggests to me that if the Court decides to grant one of the other petitions, it will “hold” the McQuigg petition and neither deny nor grant it until it has decided on the merits the case that it accepts for review.

On the other hand, the Court is also very specific in stating that if the petition is granted, “the stay shall terminate upon the sending down of the judgment of this Court.”  Perhaps, as Chris Geidner suggests in his report on today’s Order, this is intended to avoid the court of appeals “jumping the gun” and allowing same-sex couples to start marrying right away upon announcement of the Supreme Court’s opinion, as happened in 2013 when the 9th Circuit lifted its stay shortly after the Supreme Court dismissed the appeal in Hollingsworth v. Perry on jurisdictional grounds.  The big difference, of course, is that in Hollingsworth the stay had been granted by the 9th Circuit at the request of the appellants, so it was up to the 9th Circuit when to lift it.  In this case, however, the stay is being granted by the Supreme Court (having previously been denied by the 4th Circuit), so it is the Supreme Court that sets the terms, and presumably the Court will not “send down” its judgment formally to the court of appeals until the time has expired for filing motions for reconsideration or for reargument.  Thus, if the Supreme Court affirms the 4th Circuit, the Court will retain control over the timing of its decision going into effect.  This seems like a pragmatic move, inasmuch as a sweeping Supreme Court marriage equality ruling will require the remaining 31 states that ban same-sex marriage to make whatever adjustments are necessary to their forms and procedures in order to facilitate the volume of license applications they may subsequently experience, as well as the filing of stepparent adoption petitions, employee benefit plan enrollment forms, etc., from already-married same-sex couples seeking recognition of their marriages.  There might even be a small flood of pent-up divorce petitions….

To those unfamiliar with the workings of the Supreme Court and the appellate process, do not be misled by headlines reporting today’s development along the lines of “Supreme Court Blocks Virginia Same-Sex Marriages.”  While it is technically true that the stay “blocks” same-sex couples from marrying in Virginia on August 21, this is not a ruling on the merits by the Supreme Court, and it does not represent a judgment by the Court that same-sex couples are not entitled to marry.  It is a technical move by the Court to preserve its jurisdiction and the orderly appellate process by relieving the state of Virginia of the obligation to ignore its same-sex marriage ban until the Supreme Court has decided whether to weigh in on the controversy.

And, Justice Ruth Bader Ginsburg has already stated publicly her opinion that the Court will not “duck” a ruling on marriage equality this time around, as it did in 2013 in the California Prop 8 case.  The pending cert petitions present no major jurisdictional impediment to a ruling on the merits.  If the Court grants review in one of the marriage equality cases, there is likely to be a ruling on the merits before the end of the term that gets underway on October 6 — most likely sometime in the spring or early summer of 2015.

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Indiana Judge “Calls Out” Governor in Marriage Recognition Ruling

Chief U.S. District Judge Richard L. Young was clearly perturbed by the actions of Indiana Governor Mike Pence in response to Young’s June 25 ruling requiring the state to allow same-sex couples to marry, Baskin v. Bogan.

There were several marriage equality cases pending in Indiana, all assigned to Judge Young, and Governor Pence had moved to be dismissed as an individual defendant in those cases, claiming that he was not appropriately sued because he does not have “any authority to enforce or other role respecting” the Indiana laws against same-sex marriage.  When Judge Young ruled in prior cases, Baskin v. Bogan and Love v. Pence, he had granted Pence’s motion and dropped him as an individual defendant.  But after the Baskin ruling, Pence, through his legal counsel, took action, sending memoranda with instructions to other elected officials in the state on compliance with the court’s order and communicated again after the 7th Circuit issued its stay.  To Young, this looked like the opposite of what Pence had been saying, and it came back to bite the governor on August 19, when Young issued his ruling in another pending marriage equality case, Bowling v. Pence.

In this case, a lesbian couple who married in Iowa were suing for Indiana to recognize their marriage, as one of the women is a state employee and wants to sign up her spouse and their children for the health plan.  Another plaintiff is an Indiana woman who married her partner of seven years in another state in 2013, but now wants to get out of the marriage.  She was stymied by the refusal of the Marion Superior Court to entertain her divorce action because Indiana doesn’t recognize the marriage.  She plans to appeal that ruling to the Indiana Court of Appeals, but in the meanwhile joins as a plaintiff in this marriage recognition case.

After Judge Young’s prior rulings in Baskin and Love, his ruling on the merits in this case is really nothing new.  What is new is what he has to say about Governor Pence, whose motion to be dismissed as a defendant in this case had yet to be decided.   After the Baskin ruling, the Governor’s office sent directions to state officials about compliance with the Order.  After the 7th Circuit intervened to stay Judge Young’s Order in the Baskin case, after many same-sex couples had rushed to marry or apply for benefits based on their existing marriages, Governor Pence sent a memo to relevant Indiana officials telling them to comply with the 7th Circuit’s stay order, and had his counsel send a memo that instructed all executive branch agencies “to stop any processes they had commenced in complying with the District Court order of June 25.”  The memo stated, “Indiana Code Sec. 31-11-11-1-1 is in full force and effect and executive branch agencies are to execute their functions as though the U.S. District Court Order of June 25, 2014 had not been issued.”

“The memoranda issued by the Governor clearly contradict his prior representations to the court,” wrote Young.  “The Governor can provide the parties with the requested relief as was evident by his initial memorandum on June 25, 2014,” which had reacted to Judge Young’s ruling in Baskin v. Bogan, “and he can enforce the statute to prevent recognition as evident by his correspondence on June 27 and July 7.  Thus, the court finds that this case is distinguishable from the cases cited by Defendants because it is not based on the governor’s general duty to enforce the laws.  It is based on his specific ability to command the executive branch regarding the law.  Therefore, the court finds that the Governor can and does enforce Section 31-11-1-1(b) and can redress the harm caused to Plaintiffs in not having their marriage recognized.”

Looking back at the representation Pence had made to the court in seeking to be dismissed from the case, Judge Young characterized it as a “bold misrepresentation.”

Young refused to dismiss Governor Pence as a defendant, and denied similar motions by Attorney General Gregory Zoeller and the state’s Revenue Commissioner, Michael Alley.  On the substance of the case, he reiterated his conclusions from the prior rulings that Baker v. Nelson (1972), the Supreme Court’s one sentence opinion dismissing an early marriage equality case as not presenting a “substantial federal question,” is no longer binding due to subsequent developments, and that Indiana’s refusal to recognize same-sex marriages contracted in other states violates the Equal Protection Clause of the 14th Amendment.  The plaintiffs had argued a host of other constitutional theories to attack the recognition ban, but Young said there was no need to rule on any of those, since he had struck down the ban on equal protection grounds.

However, because the 7th Circuit had stayed his prior marriage equality rulings as well as the Wisconsin district court’s ruling in anticipation of the appeals filed by both states, Young granted the defendants’ motion to stay his declaratory judgment and permanent injunction pending the appellate process on the cases.

“The phenomenon that the court previously observed has continued to grow,” he wrote.  “Since issuing its prior orders, two circuit courts have found bans similar to Indiana’s to be unconstitutional.  This court reaffirms that conclusion today.  Additionally, the court, after witnessing the Governor do what he claimed he could not do, reverses course and finds him to be a proper party to such lawsuits.  The court wishes to reiterate that it finds the Governor’s prior representations contradicting such authority to be, at a minimum, troubling.”

In his stayed Order, Young directs state officials not to enforce the marriage recognition ban or the ban on allowing same-sex couples to marry, specifying that state officials are “to afford same-sex marriages the same rights, responsibilities, and benefits as opposite-sex marriages,” and that state law enforcement officials are not to enforce provisions that might be used to deter or punish same-sex couples seeking to marry.  He specifically directs the tax authorities to allow same-sex married couples the same rights and status under the tax laws as different-sex married couples, and the state personnel department to allow for the same benefits rights and entitlements.

“This Order is stayed until the Seventh Circuit rules on the merits of this case or one of the related cases of Baskin v. Bogan, Lee v. Pence, and Fujii v. Pence,” he concluded.  “Should the Seventh Circuit stay its decision in the related cases, this order shall remain stayed.”

The 7th Circuit will hear oral argument in the other Indiana cases, as well as the pending Wisconsin case, on August 26.

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Jean Genet’s “The Maids” at Lincoln Center Festival

I attended the next-to-last showing of Jean Genet’s play “The Maids” at Lincoln Center Festival last night.  This production was brought to New York by the Sydney Theater Company.  To me, the big discovery was the least well-known of the three actresses – Elizabeth Debicki, who played the Mistress.  Cate Blanchett and Isabelle Huppert, both major international film stars, played the two sisters who are the Mistress’s maids.

Of course Genet wrote this in French, but it was presented in an English translation by Benedict Andrews and Andrew Upton.  Andrews is the director, and the production’s extraordinary set was designed by Alice Babidge.  Lighting designer is Nick Schlieper.  Nobody was specifically credited in the program as costume designer, but perhaps Ms. Babidge had a hand in that as well.  Bits of incidental music came from Oren Ambarchi, with a big hat tip to Brahms, as some segments from his symphonies were obtrusively played at a few spots.  Large projections on stage from a live camera feed were designed and operated by Sean Bacon.  Unusually, there was an explicit credit for a “dramaturg” in the program: Matthew Whittet.  And evidently the “new translation” was based on a prior translation by Julie Rose.  The listings in the program book thus raised some interesting questions.  Most prominently, how close was this presentation to something Genet would have recognized as his play?  The booklet notes mention that Genet intended this work to be performed in drag by three male actors, but that notion, quite obviously, was tossed aside early on.

In any event, I thought this was one of the weirdest shows I’ve seen in a long time.  The premise is that sisters, working as maids to a wealthy woman, have decided to finish her off and run away, or something to that effect.  The first hour they spend plotting how they will do this, with many shenanigans as they disport themselves about her fabulous apartment.  When she finally arrives, the atmosphere changes starkly, and I found that after the somewhat talky first hour, which occasionally lost my attention and concentration, the entrance of the Mistress was like a fresh breeze, riveting me to the proceedings as long as she was on-stage.  Whether that is an artifact of how the plot develops or of how Ms. Debicki animated this character, I couldn’t tell, but she certain injected an incredible quantum of energy into what had until then struck me as a less than energetic presentation.

Since the run is over after tonight, I don’t think I am giving away too much to mention that the maids’ plot is not successful.  But the working out of their confrontations after the Mistress shows up is quite entertaining and occasionally quite hilarious.

Somebody at Lincoln Center Festival did make one significant miscalculation.  They had decided to run it as one long act, presumably because Genet conceived it that way?  (Although I can imagine this being done as a two-act show, as there is a natural breaking point either just before or just after the Mistress arrives.)  But the program said it would run 1 hour and 30 minutes without an intermission.  In the event, it ran about two hours without an intermission, and that is long time to sit with no relief.  Since the second half was so lively, it wasn’t oppressively so, but I found myself glancing at the my cellphone from time to time, wondering how long this would be going on….

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New York Human Rights Agency Rules Against Discriminatory Wedding Venue

The New York State Division of Human Rights ruled on August 8 in McCarthy v. Liberty Ridge Farm, Case Nos. 10157952 & 10157963, that a rural wedding venue violated the state’s Human Rights Law by its policy against same-sex weddings.  Commissioner  Helen Diane Foster formally adopted a recommended decision by Administrative Law Judge Migdalia Pares, awarding the complainants $1,500 each in compensatory damages and fining Liberty Ridge Farm $10,000 for its violation of the law.

The complainants, Melisa McCarthy and Jennifer McCarthy, decided to get married in October 2011, after New York’s Marriage Equality Law had gone into effect.  Because Jennifer had proposed to Melisa while they were apple picking at an orchard in the Albany area, they decided to continue this “rustic” theme for their wedding by finding a “wedding barn” in the area.  Their on-line search yielded Liberty Ridge Farm as their first choice.  The website offered the Farm as a wedding venue for hire with pricing packages, catering services, and photographs of wedding ceremonies.  They tried to contact Liberty Ridge by email and then left a phone message.  In September 2012, Cynthia Gifford, a co-owner of the facility, returned their phone call and left a voice message, prompting Melissa to call Gifford.

The telephone conversation took place in September 2013, with Jennifer listening in on the conversation.  Melissa and Gifford discussed renting the Gifford Barn at Liberty Ridge Farm (LRF) to hold a wedding between June and August 2013, and Gifford invited Melissa to visit to check out the facilities.  When Melisa then referred to her fiancé as “she,” the tone of the conversation changed.  Gifford stated that there was “a little bit of a problem” because “we do not hold same sex marriages here at the barn.”  When Melissa challenged the legality of that policy, Gifford responded that “we are a private business.”  When Melissa asked why they had the policy, Gifford said, “It’s a decision that my husband and I have made that that’s not what we wanted to have on the farm.” In response to the subsequent discrimination claim that Melissa and Jennifer filed, the Giffords contended that they have a “specific religious belief regarding marriage” and a “policy” against having such marriages at their barn.

ALJ Pares had first to determine whether Liberty Ridge qualified for an exemption from the state Human Rights Law’s prohibition of sexual orientation discrimination in public accommodations, by virtue of its alleged “private business” status.  The Act exempts “any institution, club or place of public accommodation which proves that it is in its nature distinctly private.”  This is sometimes referred to as the “private club” exemption, enacted to accommodate private membership organizations that are generally not open to the public at large.  The Giffords claimed that their family-owned operation would qualify, but Pares concluded that the facts did not support their contention.  Liberty Ridge is not a membership organization, it advertises its services on-line as being generally available, and as of 2012 it had hosted at least 35 wedding receptions.  These wedding parties involved couples who were not personally known to the Giffords before they were contacted about renting the facilities, so they were purely business transactions.  Pares concluded that LRF is a public accommodation, and rejected the Giffords’ argument that because they live on the third floor of the wedding barn it is their private home rather than a public accommodation.  The evidence showed that the first floor is a public events space, not a private living space, and the second floor apartment was normally rented out to the wedding party as a bridal suite.  Despite the small scale of the operation and family owners, operating as a limited liability corporation (LLC), it clearly qualified as a public accommodation under the Human Rights Act.

Furthermore, the Giffords did not deny that they had adopted a policy against holding same-sex weddings in their facility, based on their personal religious beliefs.  They argued that they had not actually discriminated against Melissa and Jennifer because of their sexual orientation, but Pares concluded that the refusal to make the facility available for their wedding constituted discrimination in violation of the law.  “It is unlawful discrimination to deny a benefit to a member of a protected class based on being a member of that protected class,” she wrote.  “Here, the policy to not allow same-sex marriage ceremonies of LRF is a denial of access to a place of public accommodation.”

Judge Pares also rejected the Giffords’ argument that they could not be held personally liable, since they were doing business as corporation, but Pares found that the New York Human Rights Law “extends liability for discriminatory acts in a place of public accommodation to agents and owners of same.  Even using Respondents’ own logic that the Giffords are ‘agents’ of LRF LLC, and acted as agents when applying a discriminatory policy to Complainants, they are nonetheless individually liable.  The Giffords themselves committed unlawful discrimination against a same-sex couple.”

Pares concluded that “an award of $1,500 to each aggrieved Complainant for mental anguish each suffered as a result of Respondents’ unlawfully discriminatory conduct is warranted.”  She also concluded that a civil fine of $10,000, payable to the state, was warranted in light of the circumstances.

In an article reporting on the decision published on August 15, the Albany Times Union quoted the Giffords’ attorney, Jim Trainor, who said they were considering an appeal to the courts, and Trainor expressed surprise that the opinion did not consider the Supreme Court’s recent Hobby Lobby decision, which held that a family-controlled corporation could deny coverage of contraception to employees because of the owners’ religious beliefs.  Hobby Lobby was based on an interpretation of a federal statute, the Religious Freedom Restoration Act, which restricts the federal government from burdening religious beliefs without showing a compelling governmental interest, and requires that the government policy impose the least restrictive alternative on religious objectors.  That decision has no application to state laws.

Although many states have passed their own versions of the Religious Freedom Restoration Act in response to a U.S. Supreme Court decision, Employment Division v. Smith, which held that individuals could not claim a constitutional religious exemption from compliance with neutral laws of general application, New York has not done so, having rejected such a proposed statute in 1997.  Thus, any 1st Amendment claim by the Giffords would be futile under Employment Division v. Smith, since the N.Y. Human Rights Act is a religiously-neutral law of general application.  Religious organizations in New York are deemed “distinctly private” for purposes of the public accommodations law, and are thus statutorily exempt from complying, but businesses in New York do not enjoy a statutory exemption based on their owners’ religious beliefs.  Unless the New York courts were to construe the state constitution’s guarantee of individual religious liberty more broadly than the U.S. Supreme Court has construed the federal 1st Amendment, there seems slight chance that this decision would be reversed by the state courts based on the Giffords’ religious objections, and there appears to be no basis for U.S. Supreme Court review, unless that Court is interested in overruling Employment Division v. Smith, an opinion that was written by Justice Antonin Scalia.  Having decided to enter the commercial sphere by advertising and providing a wedding venue for hire with catering in their barn, they have to play by the rules governing the commercial sphere, including the Human Rights Law.

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Arizona & California Courts Recognize Marriages between Transgender Men and Women

Two recent court decisions show how far we have come in getting the judicial system to understand and respect gender transition.  In Miller v. Angel, No. GD053180 (Cal. Superior Ct., Los Angeles County, August 6, 2014), and Beatie v. Beatie, No. 1 CA-CV 13-0209 (Arizona Court of Appeals, August 13, 2014), the courts found that they do have jurisdiction to dissolve out-of-state marriages between a transgender man and a woman, which would first require recognizing the validity of the marriages.  This is no small thing, because there have been quite a few American court decisions holding, to the contrary, that such marriages are actually same-sex marriages that are null and void.  In both cases, the courts making these new decisions were applying the law of states that did not allow or recognize same-sex marriages when these marriages were contracted.

Jake Miller was born female.  In 1996 he had “sexual reassignment surgery” and subsequently applied to the California courts for a judgment changing his name and official gender.  That judgment also authorize him to apply for a new birth certificate, which he asked his attorney to handle.  However, his attorney at the time did not follow through with this.  In 1999, Miller married Karen Winslow, but the marriage was short-lived, ending in divorce in 2002.  Miller, who was then living in Louisiana, listed himself on a website for those seeking to date transsexual men, through which he met Elayne Angel.  On October 22, 2003, they signed a document titled “Matrimonial Regime” in which Miller was referred to as the husband and Angel the wife.  This seems to have been some sort of prenuptial agreement.

On November 17, 2003, Miller and Angel obtained a marriage license and went through a civil marriage ceremony.  The notary did not request to see their birth certificates, but asked for proof of age, which they provided through their driver’s licenses.  They both later testified that they were unaware that Louisiana law required marriage license applicants to provide their birth certificates.  Several years later, in 2006, Miller applied for and received a new California birth certificate identifying him as male.

While living together in Louisiana as husband and wife, Miller and Angel filed joint state and federal tax returns.  They then moved to Mexico, where they lived for several years until they had a “falling out” in September 2013, when Angel asked Miller to move out of their home.  Miller went to California to stay with his sister and filed a Petition in Los Angeles County Superior Court for a legal separation.  When the petition was served on Angel, she responded without objecting to jurisdiction.  Miller amended his action to seek a marital dissolution, and Angel responded again without raising any jurisdictional issue.  But when Miller sought support payments, Angel changed her tune and filed a petition in Louisiana seeking an annulment of the marriage.  She claimed that the marriage was actually a prohibited same-sex marriage that should be annulled, and pointed out that at the time the marriage ceremony was performed, Miller did not have a birth certificate designating him as male. She also raised an objection to the jurisdiction of the California Superior Court.

L.A. Superior Court Judge Dianna Gould-Saltman held a hearing on July 29 on “the validity of the marriage.”   The court received expert testimony from a Louisiana law professor and a Louisiana lawyer who specializes in family law.  Both of them testified that the marriage was null and void under Louisiana law because the law requires presentation of birth certificates and, at the time, both intended spouses’ birth certificates identified them as female.  Thus, the marriage was prohibited under Louisiana law, in their opinion.  The parties both testified that at the time they were not aware that birth certificates were required, and that the notary did not ask to see birth certificates, just some proof of age, and had accepted their driver’s licenses for that.  At the time, they both believed that they had been validly married.

California and Louisiana law both provide that a person who undergoes gender transition can obtain a new birth certificate on presentation of evidence of their surgical alteration to the desired gender.  There was no question that the California court order that Miller obtained, changing his name and recognizing his male gender, was a judicial order or judgment, that would ordinarily be entitled to be accorded full-faith-and-credit by a Louisiana court.  “The Court believes that any analysis of the issue of the validity of the parties’ marriage must begin with the concept of ‘full faith and credit,’” wrote Judge Gould-Saltman, underlining the word “full.”  “In this case, the State of California had entered a judgment determining Petitioner to be male in 1998.  By the testimony of Professor Carroll and Mr. Transchina, although not requested to do so, he believed the State of Louisiana might give partial faith and credit to this judgment but not full faith and credit.  The testimony indicated that the California judgment might be considered for purposes of identification, obtaining a Louisiana driver’s license, draft eligibility or which prison to send somebody, but might not be given credit for purposes of marriage.  The Court heard no testimony that a Louisiana resident who had a gender reassignment and sought a new birth certificate pursuant to Louisiana law would not thereafter be able to marry a person of the opposite sex.  A review of that statute, on its face, contains no such prohibition.”

Although both experts had testified that the marriage was a nullity because Miller did not have a birth certificate designating him as male, Judge Dianna Gould-Saltman was not willing to adopt that conclusion.  “There is no evidence that Petitioner could not have obtained a birth certificate identifying him as male prior to the date of marriage in that he had the judgment allowing him to do so, had submitted the papers to his attorney for that to be done and that, but for the failure of the attorney to file the papers, it would have been done.”  The judge posed a pointed hypothetical question: “Had Petitioner sought to marry a man in Louisiana, with a California judgment finding that Petitioner was also a man, would Louisiana issued such a license?  It seems unlikely in that all agree that Louisiana had, in 2003, a public policy against same-sex marriage as it does today.”

Because the California judgment from 1998 had established that Miller was male, and not a woman, “the failure of the clerk of court to request a birth certificate at the time of the issuance of the marriage license is a technical defect not affecting the validity of the marriage,” the court concluded.  If the clerk had asked for a birth certificate showing Miller as male, Miller could have promptly obtained one from California by submitting the court judgment on his name and gender.  The court found that Angel had failed to meet her burden of proving that the marriage was invalid.

Judge Gould-Saltman also briefly discussed California’s “putative spouse” doctrine, under which somebody who reasonably believes themselves to be married will be treated as married for various legal purposes.  In this case, the parties had applied for and obtained a license, after giving the clerk the documentation requested, had signed their pre-marital agreement, and participated in a wedding ceremony.  Under the circumstances, they would qualify under California law as putative spouses, even if the marriage was found to have a legal defect.

Thus, the court denied Angel’s motion to quash Miller’s dissolution petition, and the case can go forward.

The Arizona case, Beatie v. Beatie, is a bit more complicated.  Born as Tracy Lehuanini Lagondino in Hawaii in 1974, Thomas considered himself male from an early age despite his female anatomy.  Numerous discussions with his doctor led to a testosterone hormone therapy regime and discussions about surgical alteration.  Between 1997 and 1999, Thomas underwent testing for a definitive diagnosis and upon determination that his true gender was male, engaged in “extensive hormonal and psychological treatment to conform to his gender identity,” wrote Judge Kenton D. Jones for the Court of Appeals.  Thomas’s doctor referred him to Dr. Michael Brownstein, who did gender transition surgery.  Thomas underwent surgery in 2002 to create a male-contoured and male-appearing chest, but did not have the more invasive internal and “bottom” surgery.  After surgery, Dr. Brownstein prepared an affidavit for the court attesting to Thomas’s gender transition.  Brownstein stated in the affidavit that Thomas had “undergone surgical procedures performed by me to irreversibly correct his anatomy and appearance.  This should qualify him to be legally considered male within the guidelines of the particular jurisdiction in which this individual seeks to legally change his gender status.”  Based on this documentation, Thomas obtained a new Hawaii driver’s license, altering his name from Tracy to Thomas, and undertook the necessary steps for a legal name change and issuance of a new birth certificate that identified him as male with the name Thomas Beatie.

A month after Thomas had completed these procedures, he and Nancy were married in Hawaii.  At the time, Hawaii’s marriage law prohibited same-sex marriages.  (Late in 2013 Hawaii enacted marriage equality, essentially mooting a federal lawsuit challenging its ban on same-sex marriage, but that is not relevant to this case.)  At the time they applied for the marriage license, Thomas presented identification satisfactory to the Hawaii State Registrar.

Nancy was unable to bear children. Because Thomas had not submitted to internal or bottom surgery, he was still capable of doing so.  They agreed that he would conceive and bear children for the couple using donor insemination.  The pregnancy of the very masculine-appearing bearded Thomas turned into a bit of a media sensation, as his very-pregnant photograph seemed to be everywhere.  In this litigation, Dr. Brownstein testified that Thomas’s childbearing capacity did not negative his transgender status.  Nancy adopted the children after they were born, and their birth certificates list Nancy as the mother and Thomas as the father.  After the Beatie family had lived in Oregon for some time, they moved to Arizona in 2010.  By 2012, the marriage had broken down, and Thomas filed an unopposed divorce action in the Arizona Superior Court in Maricopa County.

The Family Court judge, Douglas Gerlach, was concerned about whether he had jurisdiction, since a divorce action could only go forward if the parties were married, and aware that Thomas had produced three children while married to Nancy, he was concerned that their marriage would not be recognized in Arizona.  After receiving briefs and hearing oral argument, Judge Gerlach decided that he could not recognize this marriage.  He felt that the Arizona legislature had repeatedly recognized pregnancy as a uniquely female attribute.  Regardless of what Hawaii had done in the way of recognizing Thomas as male, Judge Gerlach felt that he could not do so. He was concerned that Thomas had not disclosed to Hawaii authorities that he was still capable of becoming pregnant when he applied for the name change and new birth certificate.  Thus, in Gerlach’s view, this was a same-sex marriage, as “the marriage was between a female (Nancy) ‘and a person born a female (Thomas), who at the time of the wedding was capable of giving birth and later did so.’”  Although both parties desired that the marriage be dissolved, Gerlach concluded that there was no marriage to dissolve, and dismissed the case for lack of jurisdiction.

Judge Jones, writing for the unanimous three-judge panel, sharply disagreed with the trial court.  He found that Thomas had met the requirements of the “clear and unambiguous language” of the Hawaii statute on gender change.  The affidavit from Dr. Brownstein was not required to have the degree of specificity that Judge Gerlach was looking for.  As long as Brownstein had verified that Thomas underwent “a sex change operation” and should be qualified to be “legally considered male,” the Hawaii requirements had been met.  “Therefore,” wrote Jones, “the possibility of Thomas giving birth to children did not preclude him from legally amending his birth certificate under the plain language of the Hawaii statute.  Further, there is no apparent basis in law or fact for the proposition that in the event Thomas gave birth after having modified his gender designation, it would have abrogated his ‘maleness,’ as reflected in the amended birth certificate.”

Ironically, the court found that Arizona’s requirements for amending birth certificates for gender change was even less demanding than Hawaii’s, and would easily have been met by the documentation that Thomas presented in Hawaii.  An affidavit from a doctor is not required in Arizona, merely a written statement “that verifies the sex change operation.”  In common with Hawaii, Arizona’s statute “does not require specific surgical procedures be undertaken or obligate the applicant to forego procreation.”

As the California court had done a week earlier, the Arizona court turned to the full faith and credit clause of the U.S. Constitution, finding that Arizona had essentially enacted the requirements of full faith and credit in its statute providing that “marriages valid by the law of the place where contracted are valid in this state, except marriages that are void and prohibited by Sec. 25-101.”  The only relevant prohibition in Sec. 25-101 would be for same-sex marriages.  But the court of appeals had determined that Thomas is legally male, based on the requirements of both the Hawaii and Arizona statutes governing birth certificate gender amendments, so that was not a problem.  Pointed out Judge Kent, “at the time Thomas and Nancy married, Thomas possessed dispositive, state-issued credentials reflecting his ‘male’ status, and Nancy held similar credentials that dispositively reflected her ‘female’ status.  Their marriage, therefore, was ‘valid by the law of the place where contracted,’” and thus valid in Arizona.  The court saw Hawaii’s issuance of a marriage license at a time when Hawaii also prohibited same-sex marriages as significant.

“In interpreting and applying the nearly identical laws of Arizona and Hawaii regarding the issuance of amended birth certificates predicated upon transgendering,” wrote Jones, “we are obligated to allow those who obtain such certificates the rights attributable to the assertions of their amended certificate — the same rights that would inure to one who had been issued that certificate at birth.”  This would, of course, include the right to marry a person of the other sex in a jurisdiction that only allowed different-sex marriages.  Thus, the court concluded, the family court had jurisdiction to decide this case.

The court also noted that “the right to have children is a liberty interest afforded special constitutional protection,” so it might be unconstitutional to require somebody to undergo sterilization as apart of gender reassignment procedures in order to recognize their preferred gender for purposes of legal status.  But a ruling on this point was not necessary to the decision and the court refrained from rendering such a conclusion.

In Miller v. Angel, Jake Miller was represented by Alana Chazan of Baumer & Chazan Law Group, and Elayne Angel was represented by Michael Whitemarsh of Land Whitmarsh LLP, both California law firms.  In Beatie v. Beatie, Thomas was represented by David M. Cantor of Cantor Law Group and Nancy by David B. Higgins of Law Office of David B. Higgins, both of Phoenix.  The Transgender Law Center participated as amicus in both cases.


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New Jersey Appellate Division Revives Step-Parent Custody/Visitation Claim by Former Domestic Partner of Birth Mother

In a complicated three-way parental rights case, the New Jersey Appellate Division ruled on August 6 that the Mercer County Superior Court should not have dismissed without a plenary hearing a custody/visitation action by a child’s former lesbian step-parent. K.A.F. v. D.L.M., 2014 N.J. Super. LEXIS 112, 2014 WL 3843057. Key to the court’s ruling was that the consent of only one legal parent is necessary to the determination whether a third party has formed a relationship with a child sufficient to meet the requirements of the “exceptional circumstances” doctrine as a psychological parent.

The facts are complicated. K.A.F. and F.D. became a couple in 1998 and began living together in 1999. In 2000 they bought a house together and decided to have a child. K.A.F. became pregnant through donor insemination and their child, called “Arthur” by the court (a pseudonym), was born in December 2002. Although the relationship between K.A.F. and F.D. became strained, leading them to live separately, they continued to co-parent Arthur, whom F.D. formally adopted in a second-parent adoption in 2005. In November 2005, a new birth certificate was issued showing K.A.F. and F.D. as legal parents of Arthur. However, as no reconciliation had taken place between K.A.F. and F.D., K.A.F. subsequently became involved with D.M., a friend of both women, and they moved in together in the Fall of 2004. With K.A.F.’s apparent consent, D.M. began to assume a parental role toward Arthur. In May 2006, K.A.F. and D.M. registered as New Jersey domestic partners. There is some difference of opinion between K.A.F. and D.M. about the extent to which D.M. participated in Arthur’s care when he resided in their home. F.D. concedes no knowledge as to that, but contends that at all times she had “adamantly and wholeheartedly opposed [D.M.’s] attempt to parent” Arthur. The relationship of K.A.F. and D.M. eventually grew strained, and D.M. moved out in March 2010, after having, according to her, played a parental role with Arthur for six years. She continued to have regular visitation with him until June 2011, but relations with K.A.F. had so deteriorated that by November 2011, K.A.F. stopped D.M.’s contact with Arthur, and in January 2012 she wrote D.M. that she would no longer be allowed visitation with Arthur. The domestic partnership between K.A.F. and D.M. was legally dissolved in October 2011.

In February 2012, D.M. filed this lawsuit, seeking “joint custody” of Arthur and a “reasonable visitation schedule.” Remember that the legal parents of Arthur are K.A.F. and F.D., Arthur’s adoptive co-parent. K.A.F. and F.D. opposed D.M.’s lawsuit, arguing that F.D. had never given consent for D.M. to assume a parental relationship with Arthur. F.D. had remained an involved parent with regular visitation throughout this period. K.A.F. and F.D. argued that the “exceptional circumstance” of a “psychological parent” status requires the consent of both legal parents, and F.D. never consented to D.M.’s role, so her lawsuit must be dismissed. The Family Part judge agreed, and dismissed the case, refusing to hold a plenary hearing on disputed facts.
Reversing, the Appellate Division found that the trial court had misconstrued the state’s precedents.



Although K.A.F. and F.D., as the legal parents, have a fundamental right to parental autonomy that would normally exclude an assertion of parental rights by a third party, New Jersey courts hold that the “presumption in favor of the parent will be overcome by a showing of gross misconduct, unfitness, neglect, or ‘exceptional circumstances.’” One such “exceptional circumstance” that has been identified by the courts is where a third party has “stepped in to assume the role of the legal parent” and has become a “psychological parent” of the child. This requires the consent of the child’s legal parent. The trial court had ruled that if the child had two fit and involved legal parents, consent by both of them would be required for a third party to achieve this status. In this case there was no allegation that either of the legal parents was unfit or uninvolved in the child’s life.

“From the perspective of simple logic,” wrote Judge John C. Kennedy for the court, “it would be difficult to ignore the ‘psychological harm’ a child might suffer because he is deprived of the care of a psychological parent simply because only one of his ‘legal parents’ consented to the relationship.” The court’s perspective is focused on the child’s best interest, and the doctrine of psychological parent exists to protect the child’s best interest. “The clear policy” of the court’s prior rulings on psychological parents,” continued Kennedy, “is that ‘exceptional circumstances’ may require recognition of custodial or visitation rights of a third party with respect to a child where the third party has performed parental duties at the home of the child, with the consent of a legal parent, however expressed, for such a length of time that a parent-child bond has developed, and terminating that bond may cause serious psychological harm to the child. It is fatuous to suggest that this fundamental policy may be subverted, and that a court may not even examine the issue at a plenary hearing, where one of the child’s legal parents colorably claims lack of consent, in circumstances where the other legal parent has consented. If we were to accept the arguments of K.A.F. and F.D., a court would be powerless to avert harm to a child through the severance of the child’s parental bond with a third party. That result is not supported by the Court’s carefully crafted policy governing such cases.” The court dismissed the Family Part judge’s concern that allowing this proceeding to continue might result in the child having more than two legal parents.

Kennedy asserted that “the transcendent importance of preventing harm to a child weighs more heavily in the balance than the fundamental custody rights of a non-forsaking parent. It also supports the proposition that where at least one ‘legal parent’ of a child has, by his or her actions, effectively consented to the creation of a psychological parent relationship between that child and a third-party, the third party has standing to pursue the claim.” The court did note that F.D.’s alleged lack of consent may be a factor considered by the Family Part judge as part of the overall weighing of factors in determining the best interest of Arthur in this situation.

Thus, it followed that the trial judge erred in dismissing the case without holding a hearing to resolve the factual disputes between K.A.F., D.M. and F.D. The court found that it was “clear that D.M. averred sufficient facts that, if credited at a plenary hearing, would establish her standing to pursue her complaint.” D.M. alleged that “she and K.A.F. lived in a familial setting with Arthur for over six years, from the time he was eighteen months old, and that she performed many normal parental duties during that time with the full consent and encouragement of K.A.F.” She also claimed that F.D. had “assented to” her assumption of parental duties for Arthur, and ‘knew that she was parenting Arthur’ and ‘participating in all “major decisions” pertaining to his welfare.” That these averments were disputed by K.A.F. and F.D. meant that there was a dispute of material facts that could not be resolved without a hearing. Since F.D.’s consent to the formation of a parental bond with D.M. was not necessary, in the view of the court, if K.A.F. had consented, F.D.’s disavowal of such consent did not deprive D.M. of standing to bring the case. Furthermore, the court found that consent can be “inferred” from action, and need not be expressed verbally.

“Moreover,” wrote Kennedy, “the focus of the court’s inquiry must always be the intent and actions of a legal parent during the formation of the disputed relationship and not the later expressions of a legal parent about his or her desire to sever the relationship. ‘The reason is that the ending of the relationship between the legal parent and the third party does not end the bond that the legal parent fostered and that actually developed between the child and the psychological parent.’” The court thus remanded for a plenary hearing, charging the trial court to determine whether D.M. had become a psychological parent of Arthur, and whether it was in the best interest of Arthur to award D.M. a sharing of custody, visitation, “or other relief.”

Abbey True Harris argued the appeal for D.M., Robin T. Wernik argued for respondents K.A.F. and F.D., and the National Center for Lesbian Rights filed an amicus brief authored by Lawrence S. Lustberg of Gibbons P.C.

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