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

Posted on: August 25th, 2014 by Art Leonard No Comments

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stated valid Title VII claims of discrimination and retaliation because of religion, and noting that the plaintiff had withdrawn her sexual orientation discrimination claim under Title VII, McShane’s ruling on the retaliation claim preserved the court’s federal question jurisdiction,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.

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

Posted on: August 13th, 2014 by Art Leonard No Comments

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.

6th Circuit Holds Marathon 3-Hour Argument in Marriage Equality Cases

Posted on: August 6th, 2014 by Art Leonard No Comments

On August 6 a three-judge panel of the Cincinnati-based U.S. Court of Appeals for the 6th Circuit held a marathon three-hour argument for appeals in six marriage equality decisions coming from all four states in the circuit: Ohio, Michigan, Kentucky and Tennessee.  Eight attorneys — four representing the  states and four representing groups of same-sex couple plaintiffs — struggled with defining fundamental rights, parsing state justifications for excluding same-sex couples from marriage, figuring out whether the court was bound to rule for the states under the Supreme Court’s 1972 Baker v. Nelson decision, and considering the practical consequences of a ruling for the plaintiffs.  The arguments were held in the shadow of recent decisions by two other circuit courts of appeals in favor of plaintiffs, as well as more than twenty consecutive rulings by federal and state trial judges all favoring marriage equality.

Despite the recent litigation history, the attorneys for the states seemed confident and undeterred, pushing forward with their arguments on two fronts.  All four states argued that the central question in the case was whether it was the state government and people or the federal court that should make the policy decision about same-sex marriage, and they all ended up relying heavily on the part of Justice Anthony Kennedy’s opinion for the Supreme Court in U.S. v. Windsor that focused on the traditional role of states in defining marriage.  Kennedy emphasized that Congress had departed from that history by passing a rule that certain marriages would not be recognized by the federal government, even though a state had decided to authorize them.  This unusual departure from past practice of generally recognizing state-authorized marriages led the Court to question the reasons behind the Defense of Marriage Act, and to conclude that it was motivated by animus against gay people.

The states argued that, by contrast, there was no animus involved in their electorates having passed constitutional amendments forbidding same-sex marriages, because all those amendments did was to preserve the status quo.  Gay people in those states had no fewer rights after the amendments were passed than they had before the amendments were passed.

By contrast, the attorneys arguing for same-sex couples generally avoided arguing that the marriage exclusion was motivated by animus, instead focusing on the lack of rational justification for them, interspersed with arguments about the harms caused to same-sex couples by the refusal of the state to let them marry or recognize their out-of-state marriages, and the logical disconnect between the procreation theories advanced by the states and the exclusionary effects of their marriage bans.

Of the three judges on the panel, two seemed very actively engaged in trading questions and comments with the lawyers, while one seemed more like an observer.  Judge Deborah Cook, appointed to the court by George W. Bush and known as a “doctrinaire conservative” according to at least one press account, asked few questions and made few comments, and her few words did not suggest a strong disposition about the outcome of the case. To the extent she was skeptical, her skepticism seemed directed at lawyers from both sides.  Unlike the judges who went on to dissent in the 4th and 10th Circuit cases, however, she did not take an active role in rebutting the arguments of plaintiffs’ lawyers, confining herself to a handful of questions that did not reveal any particular predisposition.  It was very hard to read her reactions from the audio recording of the arguments.

Judge Martha Craig Daughtrey, appointed to the court by Bill Clinton, appeared strongly predisposed to affirm the lower court marriage equality rulings that were being appealed by the states.  She asked many questions, and seemed most skeptical of the states’ procreation arguments, asking again and again how excluding same-sex couples from marriage would advance the states’ asserted interest in channeling procreation into marriage.  Responding to the argument that gay people should resort to the political process on a state-by-state basis, she raised the counterexample of the campaign for women’s right to vote, which stretched over 78 years and eventually had to go national with a quest for a federal constitutional amendment because there was so little success in winning the vote from state legislatures.

The activist on the panel, in terms of controlling the flow of the argument and asking frequent questions, was Jeffrey Sutton, also appointed to the court by George W. Bush and also generally considered to be very conservative.  According to press accounts, he is a strong supporter of states’ rights and of reigning in the federal government.  But he surprised many observers when he wrote an opinion for the 6th Circuit rejecting a constitutional challenge to the Affordable Care Act (a/k/a Obamacare), and press speculation about the marriage equality cases has suggested that he is the swing voter here.

Certainly, listening to his questions and comments, one could conclude that he was sympathetic to the case being made for the same-sex couples.  At the same time, the theme to which he recurred again and again was the idea of “pacing.”  That is, he felt that this was an issue as to which different states might proceed through their democratic processes at different speeds, and in the federal system where the defining of marriage has traditionally been a state function, that could be permissible.  He posed to several of the plaintiffs’ lawyers the question whether it was really preferable for the gay community to achieve marriage through the courts as opposed to the democratic process, pointing to the successful marriage equality referenda in several states in 2012 and the enactment of marriage equality laws  through the legislatures in a majority of the states that now have marriage equality.  He referred to “winning the hearts and minds” of the public as a preferable way to achieve policy change in a democracy.  One had the sense, listening to him, that he was not opposed to the idea of same-sex marriage, but that he was sympathetic to the argument by the states that they should be allowed to move along on this issue at their own pace.

The Michigan and Kentucky cases involved both the right of same-sex couples to marry within the states and the right to have out-of-state marriages recognized, while the Ohio and Tennessee cases dealt only with recognition of out-of-state marriages.  There was some discussion about whether it would be possible to rule in favor of the recognition claims without deciding the underlying right-to-marry question, and Judge Sutton raised on his own, as none of the parties had raised, the question whether Section 2 of DOMA, which says that no state would be required to give full faith and credit to same-sex marriages performed in other states, was relevant to these cases.  And, indeed, the Windsor DOMA decision from 2013 bears more directly on the question of marriage recognition, since the Supreme Court held in that case that there was no legitimate justification for Congress to refuse to recognize marriages that states had authorized to take place.  It was possible to think, after hearing these arguments, that the court might rule for plaintiffs on the recognition claims while holding back on the right-to-marry claims, although one of the state lawyers pointed out the position in which this would put the states, creating marriage evasion problems.

Sutton posed to several lawyers the question whether there would be significant practical difficulties in implementing marriage equality rulings, but the state lawyers were unable to think of many, and the attorney for the Ohio couples pointed out that a simple definition statute substituting gender-neutral terms throughout the state code would take care of the problem.

The lawyers for the plaintiffs did an excellent job explaining why state bans on same-sex marriage were no longer constitutional in light of the Supreme Court’s decisions in Romer, Lawrence, and Windsor.  And the lawyers for the states seemed to be grasping at straws in their attempts to persuade the court that Baker v. Nelson, the 1972 statement by the Supreme Court that the issue of same-sex marriage did not involve a “substantial federal question,” was still binding on lower federal courts, including the 6th Circuit Court of Appeals.  When Baker was raised briefly during the DOMA and California Prop 8 Supreme Court arguments in 2013, Justice Ruth Bader Ginsburg quickly dismissed it as no longer relevant, but the Court did not speak about Baker in either decision.  Since Windsor, every lower court that has ruled in a marriage equality case has agreed that Baker is no longer relevant.  In light of Windsor, it is hardly credible to suggest that marriage equality does not present substantial federal constitutional issues.

Lawyers arguing for the same-sex couples were Carole Stanyar of Michigan, Alphonse Gerhardstein of Ohio, Laura Landenwich of Kentucky, and William Harbison of Tennessee.  Lawyers arguing for the states were Michigan Solicitor General Aaron Lindstrom, Ohio Solicitor General Eric Murphy, Leigh Gross Latherow of Kentucky, and Tennessee Acting Solicitor General Joe Whalen.  In this listener’s estimation, the most effective arguments were made for the plaintiffs, although none of the states’ advocates could be dismissed as ineffective.  The arguments were conducted on a high level, and at least Judges Sutton and Daughtrey seemed very engaged.  Sutton particularly complimented William Harbison from Tennessee on his argument.

At the conclusion of the last argument, Judge Sutton acknowledged that the 6th Circuit was not the final stop for these cases, and he commented that they hoped to get an opinion out quickly.  He clearly recognized that the sooner the court issues its decision, the more likely it will be included among the cases jockeying for position at the Supreme Court as the one selected to make the ultimate determination.  There was at least an intimation that the court expects to produce one decision covering all six cases up for review rather than separate decisions for each state, as Sutton responded to an argument by Ohio’s Eric Murphy about standing issues in one of the cases with the comment that it was not all that significant since it was clear that there were no standing problems in the other marriage recognition cases before the court, so a decision would emanate that would cover the entire circuit.

Key West (Florida) Trial Judge Rules for Marriage Equality

Posted on: July 17th, 2014 by Art Leonard 1 Comment

A state trial judge in Key West, Florida, has ruled that the state’s ban on same-sex marriage violates the 14th Amendment of the U.S. Constitution. Judge Luis M. Garcia ruled on July 17 that Monroe County Clerk Amy Heavilin must issue a marriage license to Aaron R. Huntsman and William Lee Jones, who have been a couple for eleven years, on July 22. Garcia wrote that he was giving the clerk until July 22 “in consideration of the Clerk of Court’s anticipated rise in activity, and preparation thereof.”

Attorney General Pamela Jo Bondi, evidently anticipating the ruling, immediately filed a notice that she was appealing the ruling to the Florida 3rd District Court of Appeal. Although the lawsuit was originally filed against Heavilin, the state intervened as a defendant and will be handling the appeal.

The plaintiffs and the defendants agreed that there were no factual issues that required a trial, authorizing the court to issue a ruling on the plaintiff’s motion for summary judgment. The court had allowed two organizations to file legal memorandums defending Florida’s constitutional and statutory same-sex marriage ban, and they had argued that a trial was needed, but Judge Garcia ruled that only the defendants had standing to make that argument.

The state’s first argument was that the plaintiffs’ constitutional claim was blocked by the Supreme Court’s 1972 ruling in Baker v. Nelson, a Minnesota marriage equality case, in which the Court dismissed the appeal, stating that it did not present a “substantial federal question.” Garcia pointed out that after Romer v. Evans, Lawrence v. Texas and United States v. Windsor, he concluded that Baker “is no longer binding and the issue of same-sex marriage has now become a Federal question.” He cited the 10th Circuit’s recent ruling in the Utah marriage case, as well as trial court rulings from Pennsylvania, Oregon, Oklahoma, Michigan and Virginia in support of this conclusion.

Moving to the plaintiffs’ Due Process argument, he found that Supreme Court rulings treat the right to marry as an individual right, and, refuting the state’s argument that plaintiffs were seeking the establishment of a “new” constitutional right, wrote, “The right these plaintiffs seek is not a new right, but is a right that these individuals have always been guaranteed by the United States Constitution. Societal norms and traditions have kept same-sex couples from marrying, like it kept women from voting until 1920 and forbid interracial marriage until 1967.”
Garcia concluded that the fundamental right to marry “encompasses the right to marry a person of one’s own sex,” and thus the Florida marriage amendment and statute are unconstitutional.

Turning to the plaintiffs’ Equal Protection argument, Judge Garcia noted that in U.S. v. Windsor the Supreme Court had ruled that unconstitutional animus was behind the Defense of Marriage Act, and found that the same analysis would lead to the same result regarding Florida’s marriage ban. In Windsor, Justice Anthony Kennedy wrote that “the purpose and effect of the law was to impose a disadvantage, a separate status, and so a stigma upon all who enter into a same sex marriage.” “Similarly,” wrote Judge Garcia, “the purpose and practical effect of [the Florida Marriage Protection Act] is that it creates a separate status for same-sex couples and imposes a disadvantage and stigma by not being recognized under Florida law.”

He also rejected the argument that there is “no evidence of animus towards homosexuals by the proponents of the Florida Marriage Protection Amendment,” finding that “there is ample evidence not only historically but within the very memorandum of law filed by the Amici Curiae.” Here the opponents of same-sex marriage hurt their own case by their outrageous assertions. “The Amici Curiae’s memorandum paints a picture of homosexuals as HIV infected, alcohol and drug abusers, who are promiscuous and psychologically damaged and incapable of long-term relationships or of raising children,” and thus it was rational, they argued, for Florida’s voters to “minimize the deleterious effect of these conditions on public health, safety and welfare by affirming that marriage in Florida remains the union of one man and one woman.” Garcia concluded that “animus has been established.”

He also concluded that the Equal Protection claim should be decided using a “heightened rational basis test,” and that the marriage ban could not survive such a test. Indeed, he wrote, “Only the Amici Curiae has attempted to put forward a rational basis for the unequal treatment of a segment of our society,” and he found their arguments unavailing. Their first basis was to argue that the law “memorialized millennia of history and tradition,” but, as Justice Scalia had pointed out in his dissent in Lawrence v. Texas, “Preserving the traditional institution of marriage is just a kinder way of describing the State’s moral disapproval of same-sex couples.” The other argument was the ban somehow “encourages procreation” among heterosexuals, but Garcia found that there was nothing in the marriage ban “that encourages heterosexual couples to procreate.” The third argument was that the law “encourages a better environment for the rearing of children,” but, Garcia pointed out, quoting from an Ohio marriage recognition ruling from last year, “The only effect the marriage recognition bans have on children’s well-being is harming the children of same-sex couples who are denied the protection and stability of having parents who are legally married.”

Unfortunately, however, the only plaintiffs in this case are two men who wish to be married, and Garcia found that they did not have standing to challenge the Florida statute that bans recognizing out-of-state same-sex marriages, so he limited his ruling to the right to marry. Of course there are several other marriage equality cases pending in Florida courts, both state and federal, and plenty of them have married couples seeking recognition, so that point will eventually be covered in another case.

“The court is aware that the majority of voters oppose same-sex marriage,” concluded Judge Garcia, “but it is our country’s proud history to protect the rights of the individual, the rights of the unpopular and the rights of the powerless, even at the cost of offending the majority. . . All laws passed whether by the legislature or by popular support must pass the scrutiny of the United States Constitution. To do otherwise diminishes the Constitution to just a historical piece of paper.”

The plaintiffs are represented by Florida attorneys Elena Vigil-Farinas, Bernadette Restivo and Thomas L. Hampton.

New York County Surrogate Applies Archaic Family Priority Rules in Dispute over Estate of Gay Man

Posted on: July 11th, 2014 by Art Leonard No Comments

New York County Surrogate Nora Anderson issued a decision on February 18, 2014, in the pending will contest In the Matter of the Accounting of Martin Ephraim, as Fiduciary of the Deceased Executor, for the Estate of Ronald D. Myers, No. 2006/4109 (N.Y. Surrogate’s Court, N.Y. County), which surprisingly relied on old New York cases to prefer the mother of the decedent over his surviving same-sex partner in distributing disputed assets of the estate, despite language in the decedent’s home-made will suggesting otherwise.  Ephraim’s attorney, Karen Winner, has filed a motion for reargument, contending that the court’s decision overlooks significant precedents from the past 30 years establishing the “family” status of cohabiting same-sex partners.  The opinion supports the view that wills made without the assistance of somebody knowledgeable in the law of estates are a risky business.

The problems in this case stem from a home-made will by Ronald D. Myers, made in 1981 without the assistance of a lawyer.  At that time, Myers and his partner, Dr. Robert Ephraim, had been together for eleven years.  In the will, Myers designated his mother and Dr. Ephraim as executors, but when Myers died in 2006, his mother renounced her appointment, so Dr. Ephraim served as the sole executor.

In the will, Myers stated: “I give, devise and bequeath all monies will be left to my Mother, Roberta F. Long.  And that all Stocks of I.B.M. will be left to Dr. Robert Ephraim.  And also all personel [sic] property will be left to Dr. Robert Ephraim.”  The will also provides that if Myers and Ephraim both died at the same time, “all personel property” would be left to his brother, and if his mother predeceased him, all property would be left to Dr. Ephraim.  He also wrote, “If the death of my Mother occurs first, then in that case all property will be left to Dr. Robert Ephraim., this would include all monies., and all personel effects totally.”

As it happened, Myers’ mother survived him, and Ephraim, acting as executor, paid over to her all the money in the estate, about $40,000.  At his death, Myers owned a substantial portfolio of stocks, including but not limited to I.B.M., which Ephraim transferred to himself, treating the non-I.B.M. stock as “personal property.”  Myers’ mother then died intestate, and her administrator filed an objection to how Ephraim had distributed the stock, arguing that Ephraim was entitled under the will to inherit only the I.B.M. stock and Myers’ “personal effects.”  Ephraim then died, and his brother is now serving as fiduciary in his stead.  So the lawsuit is now a battle between the heirs of Mrs. Long and the heirs of Dr. Ephraim over the non-I.B.M. stock, which constitutes the bulk of the value of the estate.

Counsel for Ephraim argued that the language of the will is clear that the only inheritance for Mrs. Long was the money in the estate.  (Not mentioned in the court’s opinion but stressed in a motion for reargument is that Myers had also purchased annuities for his mother valued at $165,000, which passed to her outside the estate.)  Counsel also argued that at the time Myers made the will, the only stock he owned was I.B.M. stock, so that no inference should be drawn that he did not intend Ephraim to inherit other stock that Myers might own at the time of his death.  Counsel for the Long heirs argued that by specifying the I.B.M. stock as Ephraim’s inheritance, Myers intended him to have only that stock and that other stock should be treated as “money” rather than “personal property” and distributed to the Long estate, claiming that any other interpretation of the language of the will would be “nonsensical.”

Surrogate Anderson wrote that construction of the will “must take into account the peculiar facts and circumstances attending the will’s execution, including the relation of the parties where possible, the scheme disclosed, the language chosen by the decedent, and the intention gleaned from the language and the general situation.  If a dominant purpose or plan for distribution is discerned, ‘the individual parts of the will must be read in relation to that purpose and given effect accordingly.’”  Citing very old cases, she continued, “In cases in which discovery of a decedent’s intent is more difficult, courts have employed a presumption in favor of the testator’s relatives as against unrelated persons.”  She also said that reference to “money” in a will depends on context and sometimes may refer to “securities” and “stocks,” and that sometimes the term “personal property” may refer to “personal effects.”  In Myer’s home-made will, these latter terms are both used.

Throughout her opinion, Anderson referred to Ephraim as Myer’s “friend,” although she clearly indicated understanding that the men had lived together more than 30 years.  She apparently did not consider them to be “relatives” for purposes of any presumption about testamentary intent.  Without being totally explicit about it, she seemingly applied the “presumption” to favor the mother over the “friend.”  Furthermore, she suggested that in 1981 Myers expected his mother “to live a good many years more and, therefore, to want to plan for her accordingly.”  She found a lack of clear evidence as to whether Myers only owned I.B.M. stock when he made the will in 1981, focused on the “limiting language” in the bequest to I.B.M. stock, characterized the bequest of “all monies” to the mother as “without qualification or limitation,” and concluded, “Such lack of limitation combined with decedent’s use of the plural form ‘monies’ favors a broad reading of the mother’s bequest.”  She also applied an old legal maxim that by specifying I.B.M. stock in the bequest, Myers intended to exclude other stock.  Judge Anderson reasoned that by separately mentioning stock, Myers considered it separate from other “personal property,” and that the proviso about “all personal property” going to the brother if Myers and Ephraim died simultaneously would, if interpreted as Ephraim contended, mean leaving everything but Myers’ cash accumulation to his brother, who was otherwise unmentioned in the will.  (Also unmentioned in the will were Myers’ father, who was living when the will was made, and any other relatives.)

“Based on a sympathetic reading of the will and the facts and circumstances of the will’s framing,” the judge concluded, “the court construes the bequest to decedent’s mother of ‘all monies’ to encompass decedent’s non-IBM securities.”  The court found that the objecting party had met her burden to establish as a matter of law that Ephraim erred in distributing the non-I.B.M. stock to himself, and she granted summary judgment to the mother’s estate.

As mentioned above, counsel for Ephraim has filed a motion seeking reargument, contending that the court had improperly relied on a testimonial presumption that failed to recognize the family relationship between Myers and Ephraim and had adopted an interpretation of the will that is contrary to what one would expect under the circumstances of this case, with a surviving long-term partner and a mother who was provided substantial annuity contracts in addition to whatever money was in the estate at Myers’ death.  To the extent that the decision relies on a presumption that predates modern LGBT family law developments in New York, it would seem ripe for reconsideration (or possible reversal by the Appellate Division).

This case certainly illustrates the risk of home-made wills that leave room for interpretations that might contradict the intent of the testator.  As Myers accumulated more stock beyond whatever holdings of I.B.M. he had in 1981, it would have been prudent to revise his will to make clear how the stock should be distributed upon his death, rather than leaving it to a court to resolve the almost-inevitable will contest that might arise if large sums are involved.  But a lay person might not be aware of legal canons of construction and the possibility that mention of one company’s stock might be interpreted by a court to mean that he didn’t intend to leave other stock he might own at his death to his surviving partner.

The State of Play Now on Marriage Equality

Posted on: June 8th, 2014 by Art Leonard 4 Comments

Yesterday at Cornell University I participated on a Reunion Panel co-sponsored by the CU Gay & Lesbian Alumni Association (CUGALA) and the Law School, titled “One Year Later: U.S. Law and Politics in the Post-DOMA World.” My assigned task on the panel was to discuss how the response to U.S. v. Windsor has played out over the ensuing 11 months. My prepared text is in two parts: a chronology of events, and a discussion of legal doctrine with predictions for the future. Due to time constraints, I was only able to cover the chronology, and that with some rushing. I’ve decided to post the full text, which I subjected to some post-talk editing, here:

After Windsor: The Ongoing Campaign for Marriage Equality in the United States
Arthur S. Leonard, prepared for delivery at Cornell CUGALA Reunion, June 7, 2014.

First, a chronology of some important events since Windsor, which shows the extraordinary progress we’ve had in just under a year:

U.S. v. Windsor and Hollingsworth v. Perry decisions were announced on June 26, 2013.

June 28 – 9th Circuit lifted its stay in the Prop 8 case and same-sex couples resumed marrying in California.

July 1 – First decision to cite Windsor was issued: a marriage equality case pending in U.S. District Court in Michigan, court refusing to dismiss the case.

Within weeks of Windsor, the Obama administration announced that the federal government would generally use the “place of celebration” rule to determine whether to recognize same-sex marriages, which meant they would be recognized nationwide for most purposes, regardless of local law. (Major exception: Social Security)

July 17 – Board of Immigration Appeals held “place of celebration” rule would be used in immigration cases, extending recognition to the marriage of a same-sex binational couple.

July-August – County clerks and trial judges in New Mexico staged a rebellion, as marriage equality slowly spread across the state based on local decisions, eventually reaching 18 counties. N.M. clerks association petitioned the state Supreme Court to address the issue, which it agreed to do.

July 22 – US District Court in Ohio, citing Windsor, issued a restraining order requiring Ohio to recognize a same-sex marriage contracted out of state as one spouse lay dying, for purposes of death certificate and surviving spouse status.

July 29 – US District Court in Pennsylvania, citing Windsor, ruled that a surviving same-sex spouse would be entitled to inherit retirement proceeds under an ERISA-regulated employee benefits plan, since “spouse” under ERISA must include same-sex spouses, and ERISA provides spousal entitlement to inherit pension/survivor benefits

September 3 – Defense Department announced that state National Guard units must provide benefits to same-sex spouses of their members – initial resistance by some individual states eventually collapsed by December

September 27 – New Jersey Superior Court granted judgment to plaintiffs in marriage equality case; in light of federal recognition under Windsor, state had no rational basis to deny marriage once it had legislated for civil unions

September 27 – Illinois Circuit court denied county clerk’s motion to dismiss marriage equality case

October 16 – Oregon Attorney General announced that in light of Windsor the state would recognize same-sex marriages from other jurisdictions. [Logic: Windsor is a marriage-recognition case, holding that federal government had no legitimate reason not to treat legally-valid same-sex and different-sex marriages the same; similarly, Oregon would have no reason for differential treatment]

October 18 – New Jersey Supreme Court unanimously refused to stay marriage equality decision. Governor Christie dropped the state’s appeal, allowing the decision to go into effect on October 21

November 5 – Illinois legislature approved marriage equality law, to go into effect June 1, 2014. Combination of Windsor and Superior Court’s refusal to dismiss pending marriage equality cases undoubtedly helped to produce the necessary majority.

November 12 – Hawaii legislature approved marriage equality law, to go into effect December 2. Special session called by Governor Abercrombie after he concluded that Windsor meant Hawaii would lose in 9th Circuit review of marriage equality case; Abercrombie called special session after legislative leaders assured him they could obtain majority support for his proposed marriage equality bill.

November 25 – Federal district court orders Cook County Clerk to issue marriage license to same-sex couple due to medical emergency, eventually leading to partial breakdown of delay to implementation of new marriage equality law as another federal court on December 10 requires clerk to issue licenses to any couple with a medical emergency and on February 21 federal court orders Cook County Clerk to issue licenses to any qualified same-sex couples regardless of medical emergencies.

December 19 – New Mexico Supreme Court unanimously rules for marriage equality, effective immediately.

December 20 – Federal district court in Utah rules that same-sex marriage ban is unconstitutional and refuses to stay ruling, so same-sex couples start marrying while state pursued quest for a stay from appellate courts. 1243 same-sex marriages performed.

December 23 – Federal district court in Ohio issues permanent injunction that required the state to recognize out-of-state same-sex marriages for purposes of death certificates

January 6 – U.S. Supreme Court stays Utah ruling without explanation, and Governor Herbert declares that marriages already contracted are “on hold” and not recognized by the state

January 14 – Federal district court in Oklahoma rules ban on same-sex marriage is unconstitutional, but stays ruling pending appeal in tight of Supreme Court’s Utah stay

January 21 – U.S. 9th Circuit Court of Appeals rules in juror selection case that sexual orientation discrimination claims are subject to “heightened scrutiny” after Windsor

January 29 – Federal district court in West Virginia denies motion to dismiss marriage equality case

February 10 – Attorney General Holder announces that Justice Department will recognize same-sex marriages under place of celebration rule for all purposes & Nevada governor and attorney general announce that in light of 9th ircuit’s “heightened scrutiny” ruling they will not provide a defense to Nevada’s same-sex marriage ban in pending 9th Circuit appeal

February 12 – Federal district court rules Kentucky ban on recognition of same-sex marriages is unconstitutional – decision stayed pending appeal

February 13 – Federal district court rules that Virginia’s ban on same-sex marriage is unconstitutional – decision stayed pending appeal

February 20 – Oregon Attorney General announces that in light of Windsor and 9th Circuit’s heightened scrutiny ruling, state will no longer defend marriage ban in pending lawsuit

February 26 – Federal district court rules that Texas’s ban on same-sex marriage is unconstitutional – decision stayed pending appeal

March 14 – Federal district court rules that Tennessee’s ban on recognition of same-sex marriages is unconstitutional – decision stayed pending appeal

March 21 – Federal district court rules after trial that Michigan’s ban on same-sex marriage is unconstitutional and that expert witnesses presented by the state are not credible – decision stayed by 6th Circuit pending appeal, 315 marriages before stay was granted.

April 10 – Federal district court orders Indiana to recognize a same-sex marriage of one of plaintiff couples in marriage equality suit due to medical emergency.

April 10 – 10th Circuit hears oral argument in Utah case

April 14 – Federal district court in Ohio rules that state must recognize out-of-state same-sex marriages for all purposes – stayed in part pending appeal

April 17 – 10th Circuit hears oral argument in Oklahoma case

May 9 – State Circuit court in Arkansas rules that ban on same-sex marriages is unconstitutional – eventually stayed pending appeal to Arkansas Supreme Court after about 500 couples marry

May 13 – 4th Circuit hears oral argument in Virginia case

May 13 – Federal magistrate judge in Idaho rules that state’s ban on same-sex marriage is unconstitutional, eventually stayed pending appeal by the 9th Circuit

May 19 – Federal district court rules that Oregon’s ban on same-sex marriage is unconstitutional. State doesn’t appeal and same-sex couples start marrying. National Organization for Marriage petitions U.S. Supreme Court to stay the ruling pending its attempt to appeal, after being turned down by the 9th Circuit. Supreme Court denies petition early in June.

May 19 – Federal district court rules that Utah must recognize the marriages that were performed prior to the Supreme Court stay – temporary stay pending appeal, 10th Circuit extended the temporary stay while considering the state’s appeal.

May 20 – Federal district court rules that Pennsylvania’s ban on same-sex marriage is unconstitutional. State doesn’t appeal and same-sex couples start marrying.

June 1 – Illinois marriage equality law goes into effect state-wide.

June 6 – Federal district court rules that Wisconsin ban on same-sex marriage is unconstitutional. Although court did not issue an injunction, and gave parties several weeks for submissions on scope of proposed injunction, delaying ruling on state’s motion for a stay pending appeal, county clerks in Milwaukee and Madison began issuing marriage licenses and about 130 couples married the same day the decision was released while state sought an emergency stay from the trial court.

June 6 – With filing of lawsuit in North Dakota, every state that still bans same-sex marriage was facing a lawsuit either on right to marry, recognition, or both.

As of June 7 – Same-sex couples could marry in 20 states and D.C., with over 45% of the nation’s population. A majority of same-sex couples lived in states where they could marry. Lawsuits were on file challenging same-sex marriage bans or refusals of recognition in every state that maintained such bans.

—–

What the Court said in Windsor: The Court did not expressly state that same-sex marriage is a fundamental right or that sexual orientation discrimination requires heightened scrutiny, or that states are required to let same-sex couples marry or to recognize same-sex marriages.

The Court did say that the right to marry is very important in terms of legal rights and social status and it appeared to put the burden on the government to articulate policy justifications for refusing to extend the same recognition to state-sanctioned same-sex marriages that it does to different-sex marriages. The Court found that this burden had not been satisfied by any of the arguments that had been presented, without expressly addressing or analyzing any of those arguments. The Court explicitly premised this analysis entirely on the 5th Amendment, primarily emphasizing due process of law (protection for individual liberty) and also noting the equal protection requirements of the 5th Amendment.

Is this “heightened scrutiny” for sexual orientation discrimination? A 9th Circuit 3-judge panel said yes in SmithKline Beecham v. Abbott Laboratories, the juror selection case. One judge of the 9th Circuit asked the court to poll its members to consider rehearing by a larger panel of judges, but the court had not announced the result of that poll as of June 7, although it appears likely that this request was denied, since the court did announce that it would hear arguments in September in appeals from the Idaho and Nevada marriage cases. Other circuits are about to weigh in as a result of marriage equality arguments held in the 4th and 10th Circuits, with arguments yet to be scheduled on some other appeals in other courts.

Long-term effect of Windsor:

What is the long-term doctrinal effect of U.S. v. Windsor? Particularly:

(1) Does it dictate any particular result in lawsuits under the 14th Amendment against states that ban same-sex marriage?

(2) Does it mean that in cases where government policies are challenged as discriminating based on sexual orientation and/or gender identity, courts should use heightened scrutiny to decide the result? Heightened scrutiny presumes that the challenged law is unconstitutional and puts the burden on the government to show that it substantially advances an important state interest.

The marriage equality question: Beginning in September 2013 and continuing to date, federal district judges and state trial judges have decided that a state ban either on allowing or recognizing same-sex marriages violates the 14th Amendment.

They don’t all use the same analytical approach to get there, and most of them do not rely on “heightened scrutiny” to get there, although many judges discuss it.

1. Recognition cases, beginning in Ohio in July – Obergefell v. Wymyslo – The district court was asked for emergency relief by a same-sex couple that had flown to Maryland to marry, as one of the spouses was fatally ill. The court ordered Ohio to recognize the marriage for purposes of death certificate and rights of the surviving spouse. Significantly, the court did not mention Sec. 2 of DOMA, which purports to excuse states from any constitutional duty to afford full faith and credit to same-sex marriages contracted in other states. The court relied entirely on the 14th Amendment Equal Protection Clause, finding a constitutional requirement for states to treat same-sex and different-sex marriages the same for purposes of recognizing out-of-state marriages. On this view, Windsor was a marriage recognition case, holding that none of the policy arguments made in support of Sec. 3 of DOMA justified Congress in treating same-sex marriages differently from different-sex marriages. The Ohio court found that the same policy arguments made by the states were equally unavailing in this context. Unlike the Supreme Court in Windsor, the federal courts deciding marriage recognition cases have to greater or lesser extent actually discussed the various policy arguments and dismissed them.

2. Right to marriage cases, beginning in New Jersey and New Mexico in the state courts, then moving to the federal courts beginning in Utah. The state court rulings were grounded in state constitutional law, but were clearly influenced by the reasoning of Windsor, and the federal court ruling in Utah relied heavily on Windsor. A trend of quoting from Justice Scalia’s dissents in Windsor and Lawrence v. Texas quickly emerged. Scalia had predicted that these Supreme Court rulings would open the door to same-sex marriage claims, and even did some of the work for plaintiffs by contending that various arguments that had traditionally been made against same-sex marriage would no longer suffice.

For example: Moral disapproval was disfavored by the Supreme Court as a justification for sodomy laws or federal non-recognition of state same-sex marriages. Scalia helped things along by saying the arguments about “preserving or defending traditional marriage” were merely a polite way of invoking moral disapproval. Thus, states that argue that they are entitled to preserve the traditional understanding of marriage are not persuading the judges.

Procreation arguments were effectively dismissed by Scalia in his Lawrence dissent when he pointed out that the states do not prohibit the sterile, aged or infirm from marrying.

In Windsor, Scalia’s dissent rejected Chief Justice Roberts’ contention (in his dissent) that the majority opinion was about federalism. Roberts had argued that Windsor was about recognizing that the states have the primary authority to define marriage, and the federal government should ordinarily defer to the states on that question. But Scalia took Justice Kennedy at his word, when Kennedy said that the opinion was grounded in the 5th Amendment Due Process Clause (which incorporates Equal Protection). Scalia lifted key language from Kennedy’s opinion and edited it to show how the same analysis could be used to strike down state bans on same-sex marriage. Scalia wrote the playbook, and many lower court judges picked it up.

The doctrinal paths to marriage equality:

Substantive due process – States argue that plaintiffs are seeking a new federal right of “same-sex marriage” with no roots in constitutional text or tradition. Courts have rejected the argument, citing Justice Kennedy’s criticism of Bowers v. Hardwick, the 1986 sodomy law decision, as having improperly framed the question as a “claimed right of homosexuals to engage in sodomy.”

The cases since Windsor that have relied on Due Process have said this is about “the right to marry” as an individual right available to all in a meaningful way with a mutually agreed partner regardless of sex. Because of the signal importance of this right within our society, it could be deemed a fundamental right, which would require the government to show a compelling interest to exclude gay people, but the courts generally have felt it unnecessary to apply strict scrutiny because, taking their cue from Windsor, they find that none of the arguments that have been advanced against this application of the right are valid.

Equal Protection – Some of the courts have pointed out that any categorical discrimination with respect to a fundamental right invokes strict scrutiny, the right to marry is a fundamental right, so the same-sex marriage bans would fall because the states could not advance a compelling reason to exclude gay people from this fundamental right. Thus there would be no need for the court to address the question of how they should decide sexual orientation discrimination claims. However, the courts have almost all felt it necessary to engage in the alternative class-based discrimination analysis.

Sex discrimination – The courts have split over whether the ban on same-sex marriage is a form of sex discrimination that would invoke heightened scrutiny. This argument was adopted by the Hawaii Supreme Court in 1993 in Baehr v. Lewin, ruling under a state equal rights amendment, and it was picked up in some prominent academic quarters, most strongly in the 1990s by Sylvia Law of NYU and Andrew Koppelman of Northwestern University, in law review articles, books, and amicus briefs. Some of the recent decisions have echoed the view, but most have rejected it, finding that the bans on same-sex marriage are not intended to discriminate against men or against women as such. If a court accepts the sex discrimination theory, that leads to heightened scrutiny and easily invalidates the ban.

Sexual orientation discrimination – This is the most highly contested point. Most lower federal courts in the past have found that sexual orientation is not a suspect classification because

(1) the Supreme Court has never said it is and appeared to decide Romer v. Evans and Lawrence v. Texas using rationality review,
(2) the gay rights movement has shown the ability to get governments to respond to its concerns through legislation, and thus is not politically powerless,
(3) scientific questions remain about immutability, making sexual orientation unlike the suspect class of race or the somewhat suspect class of sex.

The minority of lower federal courts that have found sexual orientation to be a suspect classification have focused on (1) the well-documented history of anti-gay discrimination by government and society, including expressly anti-gay laws, (2) the growing scientific support for a genetic component to sexual orientation and a belief that sexual orientation is a deep-seated trait, largely impervious to intentional change and central to individual identity, (3) the general view that sexual orientation is usually irrelevant to any legitimate government interest.

In the gay rights decisions he has written for the Supreme Court, Justice Kennedy has not specifically addressed these questions. Instead, he has focused on the problem of animus. To Kennedy, if a discriminatory policy is adopted without any legitimate policy justification, the legislature most have been motivated by animus. This really boils down to finding that the legislature decide to discriminate against gay people because legislatures thought it politically advantageous for them to do so due to the unpopularity of gay people with most of the public, or because of an anti-gay bias grounded in religious beliefs and/or moral disapproval. These strike the Supreme Court majority as illegitimate bases for discriminatory legislation. The more important the deprivation imposed by the statute, the more concerned the Court becomes that it was enacted from animus instead of a legitimate policy reason.
Once the Court decided to reject history and tradition as a support for legislation that impairs the dignity of the individual, the game was over.

In the trilogy of decisions written by Kennedy, this theme recurs again and again. In Evans v. Romer in 1996, the Court struck down a measure that it found was discrimination for the sake of discrimination with no legitimate justification, a clear violation of the 14th Amendment. In Lawrence v. Texas in 2003, the Court struck down a state criminal sodomy statute that prohibited same-sex couples from engaging in the same sexual activity that was permitted for different sex couples, an obvious equality problem, but the Court premised the decision NOT on equality but on impairment of human dignity and autonomy in violation of the guarantee of liberty in the 14th Amendment. In U.S. v. Windsor in 2013, striking down the federal government’s refusal to recognize same-sex marriages that were allowed by states, the Court emphasized that the state had conferred dignity on married same-sex couples by allowing them to marry, and the federal government’s refusal to recognize such marriages impaired the dignity of the married couples, denying “equal liberty.” None of the justifications articulated in the legislative history or in the briefs filed with the Court were seen as adequate to support a law that impaired individual dignity in this way.

[In light of my analysis of the Court’s decision in Windsor, it should be clear that I think the 9th Circuit 3-judge panel in SmithKline Beecham v. Abbott Laboratories was mistaken in its conclusion that Windsor requires sexual orientation discrimination claims to be evaluated using heightened scrutiny. If the Court was using heightened scrutiny in Windsor, it was because of the intersection of due process and equal protection concerns, in which the importance of the right to marry was a crucial factor. I do think that the 9th Circuit’s prior cases rejecting heightened scrutiny for sexual orientation claims are wrong, because I agree with the federal district courts that, having analyzed the heightened scrutiny factors, concluded that sexual orientation claims are entitled to heightened scrutiny. But a 3-judge panel of the 9th Circuit was not free to reach such a conclusion in light of prior circuit cases; only an en banc panel could reject prior circuit precedent and engaged in the factor-analysis leading to a heightened scrutiny conclusion, in my opinion.]

Romer and Lawrence were 6-3 decisions, but Windsor was a 5-4 decision, and all the justices in the minority, regardless of which dissenting opinions they signed, seemed to agree that Congress had sufficient justification for refusing to recognize same-sex marriages, even when the states had done so. Thus, Windsor is a vulnerable precedent, should change come to the Court. The current Supreme Court conservative majority has shown little regard for precedent in Constitutional Law. Thus, the membership of the Court when the marriage equality question gets to it is crucial.

At present, it appears likely that the question will get to them next term. One or more of the courts of appeals will rule on marriage equality cases in the next few months. If such a ruling orders a state to allow same-sex couples to marry, it is highly likely that the Court will grant the state’s petition to review that decision. Assuming, for sake of argument, that the opinions of more than a dozen lower court judges reasonably reflect the views of court of appeals judges, that result seems likely. This would mean that a marriage equality case would most likely be argued during the Supreme Court’s 2014-15 term, with a decision coming sometime in the spring of 2015. If the membership of the Court remains what it is today, or the only change is a new Obama appointee to replace one of the current justices, then it is likely that we will have a national marriage equality precedent next year.

Pennsylvania’s Next: U.S. District Judge Orders State to Allow and Recognize Same-Sex Marriages, and State Complies!

Posted on: May 20th, 2014 by Art Leonard No Comments

U.S. District Judge John E. Jones III, a Republican appointed to the federal district court in Harrisburg, Pennsylvania, by President George W. Bush in 2002, ruled on May 20 in Whitewood v. Wolf that Pennsylvania’s statutes banning same-sex marriages in the state or recognition of same-sex marriages formed outside the state violate the 14th Amendment’s Due Process and Equal Protection Clauses. Judge Jones issued an order declaring both statutes unconstitutional and permanently enjoining the state from enforcing them. Neither his opinion nor his order mentioned any stay, but it seemed likely that Governor Tom Corbett would seek a stay, first from Judge Jones and then, if one was not forthcoming, from the 3rd Circuit Court of Appeals, which is based in Philadelphia. But Governor Corbett surprised everybody by waiting one day and then announcing he would not appeal the ruling, making Pennsylvania the 19th marriage equality state. Meanwhile, shortly after Judge Jones’s ruling was announced, same-sex couples began getting marriage licenses.

The American Civil Liberties Union filed this lawsuit last July on behalf of what Judge Jones described as “eleven courageous lesbian and gay couples, one widow, and two teenage children of one of the aforesaid couples.” Some of the couples are seeking marriage licenses, others are seeking recognition of their out-of-state marriages, the teenagers complain about the deprivations they suffer from their parents not being married, and the widow, who married her late partner out of state, complains about not being recognized as a surviving spouse. One of the state’s defenses to this lawsuit was that the plaintiffs had failed to show any injury for the court to redress, a nonsensical position that Judge Jones dispatched efficiently. He found that the “stigmatizing harms” imposed by the statutes, which were passed in 1996 in response to a marriage equality lawsuit in Hawaii, were “cognizable” as a matter of law, and, additionally, that “plaintiffs suffer a multitude of daily harms, for instance, in the areas of child-rearing, healthcare, taxation, and end-of-life planning.” The state’s other main defense was that this case is precluded by the Supreme Court’s 1972 Baker v. Nelson ruling that the issue of same-sex marriage did not raise a “substantial federal question.” All of the recent marriage equality decisions have rejected this argument, pointing to the significant developments in American constitutional law since 1972, not least last year’s Supreme Court ruling striking down the Defense of Marriage Act, to conclude that exclusion of same-sex couples from marriage now presents a very substantial federal question.

Judge Jones found the Pennsylvania statutes unconstitutional on two separate constitutional theories: due process and equal protection.

The due process theory rests on Supreme Court decisions finding that the “right to marry” is a fundamental right, guaranteed to each individual. Judge Jones rejected the state’s argument that because “the United States Supreme Court has never recognized that the fundamental right to marry includes the right to marry a person of one’s choice,” the state’s marriage laws did not violate the plaintiffs’ due process rights. After briefly summarizing the Supreme Court’s important marriage decisions, Judge Jones wrote, “this Court is not only moved by the logic that the fundamental right to marry is a personal right to be exercised by the individual, but also rejects Defendants’ contention that concepts of history and tradition dictate that same-sex marriage is excluded from the fundamental right to marry. The right Plaintiffs seek to exercise is not a new right,” he continued, “but is rather a right that these individuals have always been guaranteed by the United States Constitution.” He went on to find that this right encompassed both the right to marry and the right to remain married after crossing a state line, so the due process theory served to invalidate both Pennsylvania’s ban on same-sex marriage and its ban on recognizing out-of-state same-sex marriages.

Turning to equal protection, the judge noted that one branch of equal protection jurisprudence would apply strict scrutiny to any law that discriminates regarding a fundamental right, and nobody contends that same-sex marriage bans would survive such strict scrutiny. However, setting that issue aside, he proceeded to analyze whether discrimination because of sexual orientation requires heightened scrutiny. The 3rd Circuit Court of Appeals has never ruled on the question, and neither has the Supreme Court, at least directly. Judge Jones noted that several of the other courts that have issued marriage equality rulings, in addition to the 9th Circuit in a recent jury selection case, have held that heightened scrutiny is appropriate for sexual orientation claims, and that a review of the Supreme Court’s gay rights decisions suggests that the Court has been using a more demanding standard of judicial review than the traditional deferential rational basis test. After reviewing the factors that courts generally consider in deciding whether a particular form of discrimination is subject to heightened scrutiny review, Jones concluded that this was the appropriate level of review.

Consequently, presuming the ban to be unconstitutional, Jones considered whether there was an “important governmental objective” to support the ban. Since the state had been arguing in support of using the deferential rational basis test, its arguments fell quite short. Jones identified “promotion of procreation, child-rearing and the well-being of children” and “tradition” as the only interests the state was proposing. “Significantly,” he wrote, “Defendants claim only that the objectives are ‘legitimate,’ advancing no argument that the interests are ‘important’ state interests as required to withstand heightened scrutiny. Also, Defendants do not explain the relationship between the classification and the governmental objectives served; much less do they provide an exceedingly persuasive justification. In essence, Defendants argue within the framework of deferential review and go no further. Indeed, it is unsurprising that Defendants muster no argument engaging the strictures of heightened scrutiny, as we, too, are unable to fathom an ingenuous defense saving the Marriage Laws from being invalidated under this more-searching standard.”

Like the other trial judges ruling in marriage equality cases over the past several months, Judge Jones rose to an eloquent conclusion. “The issue we resolve today is a divisive one,” he wrote. “Some of our citizens are made deeply uncomfortable by the notion of same-sex marriage. However, that same-sex marriage causes discomfort in some does not makes its prohibition constitutional. Nor can past tradition trump the bedrock constitutional guarantees of due process and equal protection. Were that not so, ours would still be a racially segregated nation according to the now rightfully discarded doctrine of ‘separate but equal.’” After citing the Supreme Court’s key ruling against racial segregation, Brown v. Board of Education (1954), he continued, “In the sixty years since Brown was decided, ‘separate’ has thankfully faded into history, and only ‘equal’ remains. Similarly, in future generations the label same-sex marriage will be abandoned, to be replaced simply by marriage. We are a better people than what these laws represent, and it is time to discard them into the ash heap of history.”

Pennsylvania’s marriage statutes require a three-day process to apply for and receive a marriage license. Thus, unless individual couples can secure some sort of waiver of this waiting period, it is possible that speedy action by the state to obtain a stay could avoid what happened in Utah, Arkansas and Michigan, where same-sex marriages took place before the state was able to secure a stay pending appeal. In those states, one could apply for a license, obtain it immediately, and then quickly have a marriage ceremony, but Pennsylvania’s laws do not routinely provide such speed. Judge Jones’ decision to issue his opinion on a Tuesday, rather than right before a weekend, made it more likely that the state might secure a stay before marriages could take place.

Taking together both the rulings on the right to marry and those rulings that just dealt with marriage recognition, Judge Jones’s decision was the fourteenth consecutive ruling by a state or federal court since last June’s U.S. Supreme Court DOMA decision to rule in favor of LGB plaintiffs seeking marriage rights or recognition. Since then no court has rejected such a claim, although many of the trial court decisions are “on hold” due to stays pending appeal. In New Mexico and New Jersey, the states’ highest courts last year agreed with their trial courts, and in Oregon, yesterday, where the state signified in advance that it would not appeal a marriage equality ruling, same-sex marriages could quickly begin taking place. Each new decision now cites the lengthening list of prior decisions, the sheer weight of which is building to a daunting body of precedent, even though viewed individually trial court rulings may have little precedential weight. We still await the first federal appellate ruling that the 14th Amendment of the U.S. Constitution guarantees to gay people the same individual right to marry the partner of their choice. The U.S. Courts of Appeals for the 10th Circuit (in Denver) and the 4th Circuit (in Richmond) have heard arguments on cases arising from Utah, Oklahoma and Virginia, and other circuits will hear arguments soon from other states. While there may be more federal trial court decisions in the months ahead, with scores of cases pending in all but three of the remaining states that ban same-sex marriage, the next truly significant development will be the first court of appeals ruling, which could come at any time.

Note added a few hours after posting this: Judges can grant individual waivers of the three-day waiting period, and I understand that some judges have already granted waivers and licenses have been issued to some couples. So no matter how fast the state is in requesting a stay, some couples will be getting married before that can happen.

Sigh of Relief for Law Prof Sued for Defamation and Invasion of Privacy Due to Law Review Article and Lecture

Posted on: May 8th, 2014 by Art Leonard No Comments

Law professors publish law review articles in which they may discuss cases pending in the courts. Such discussions may relate what the plaintiffs are alleging and then theorize about how the courts might treat such claims. When a professor includes the names of the parties in the lawsuit, and one of them feels that the professor’s discussion could be harmful to the party’s reputation and lead people to take an unfavorable view of them, should the professor be liable for damages in a civil court action?

U.S. District Judge Paul Engelmayer of the Southern District of New York gave a firm “no” to that question, at least in the factual context of a lawsuit by the defendant in a case that was pending at the time it was being written and spoken about, seeking to hold Professor Zachary A. Kramer liable for statements published in his article “Of Meat and Manhood” published in the Washington University Law Review as well as a lecture Kramer gave about the subject of his article at Western New England University Law School. Kramer’s article was devoted to some recent developments in employment discrimination law. He discussed the then-pending case of Pacifico v. Credit Agricole, in which a foreign exchange trader at the defendant company claimed to have been subjected to homophobic harassment by a supervisor who, he alleged, labeled him as gay because he is a vegetarian. (Weird, isn’t it? And strongly denied by the supervisor…) Kramer hypothesized that the supervisor equated vegetarianism with homosexuality because of his sex-stereotypical view that “real men” eat meat. The Pacifico case was voluntarily terminated with prejudice after Kramer had published his article and given his lecture, but was still pending when these events happened.

Kramer used the names of the parties in his article and the supervisor (defendant in the civil rights suit) sued him in U.S. District Court in New Jersey, as well as suing the law school whose law review published the article and the law school where the lecture was given (which made available an audio recording the school’s website). Kramer is a professor at Arizona State. The plaintiff lives in New Jersey, although he and the former Credit Agricole employee who sued him for discrimination under the New York State Human Rights Law worked in New York. When the two law schools were voluntarily dismissed from the case, the case was shifted to the federal district court in New York, as the New Jersey court did not have personal jurisdiction of Kramer, the sole remaining defendant. The plaintiff, Robert Catalanello, alleged that he had been defamed and that the statements made about him in the article and lecture had placed him in a false light. New Jersey recognizes the tort of false light invasion of privacy, but New York does not, so an important part of Judge Engelmayer’s decision is his choice of law analysis, concluding that New Jersey tort law would apply, although he found this a “close case.”

But he did not find that there was a close case as to whether Catalanello had stated valid tort claims under New Jersey law. The judge decided that a contextual reading was necessary, and that viewed in context Kramer’s discussion of the case in his article and the lecture were protected from liability under the “fair-report privilege,” which shields from liability “the publication of defamatory statements appearing in a report of an official action or proceeding.” Kramer was discussing the facts alleged in a legal complaint on file in the federal district court in New York, and he made clear in both his article and his lecture that he was taking facts from the complaint, that the facts were contested and that the case was pending. Thus he was not stating that these factual assertions were true, and he was merely using them to illustrate his own theory of shortcomings in employment discrimination doctrine under which it was questionable whether the factual allegations, if true, would state a valid legal claim. (Kramer’s article is very much worth reading on this point, for anybody interested in the way that employment discrimination law is developing in the area of “sex stereotyping” and sex discrimination.) Under New Jersey cases, as long as a publication of defamatory statements takes place in the context of a “full, fair, and accurate account of the official proceeding,” the author cannot be held liable for defamation. This is true as well for the false light claim.

In addition, Judge Engelmayer concluded that some of the statements challenged by Catalanello would be classified as statements of opinion rather than statements of fact, and statements of opinion are generally not actionable as defamation. These statements pertained to Kramer’s theorizing about the motivation of Catalanello for engaging in the conduct in which he was alleged to have engaged, conflating vegetarianism with sexual orientation based on stereotypes about the behaviors of men and women. That is, the court concluded that Kramer was not asserting as fact that Catalanello had these particular motivations, but rather was using the factual allegations of the lawsuit to illustrate his doctrinal critique, in the course of which he speculated as to the motivations of somebody who would engage in the conduct that was alleged in the court complaint.

Sigh of relief for Prof. Kramer that the judge “gets it” and understands the nature of the academic inquiry and the use of fact patterns derived from real cases to discuss doctrinal developments. Cautionary note to law professors who are writing about real cases and using the names of parties: unless a court has made factual findings, be clear that you are discussing allegations that have not been proven as fact!!

Cultural Diary: April 27-May 6 – Ups and Downs…

Posted on: May 7th, 2014 by Art Leonard No Comments

On April 27, I attended a performance by the extraordinary new music band, Alarm Will Sound, directed by Alan Pierson at Carnegie Hall’s Zankel Hall as part of the series “collected stories” curated by composer David Lang. Lang’s series extended over a week of concerts, with this one come towards the end. The idea of this program was to bring together some diverse examples of music intended to illustrate a story of some sort, in some cases impressionistically and in one very directly in the form of a mini-opera. I start from the premise that the program was assembled by Mr. Lang, not by the members of Alarm Will Sound, a discerning group who put together their thematic concerts with great care and select music that they really believe in. I’m not sure how much they believed in some of the music they performed in this concert, although as always they played with a high degree of involvement and polish. But I was not as convinced as I usually am at an Alarm Will Sound concert at the value of everything I heard. Surely, Donnacha Dennehy’s moving “Gra agus Bas,” which I’ve heard before, is a powerful channeling of Irish folk tropes projected through the unusual vocalism of Iarla O Lionaird, a man of such indeterminate vocal range that he is identified in the program as “Voice” rather than assigned a “normal” range such as alto, tenor, baritone or bass. But I found Kate Moore’s “The Art of Levitation” to be an undistinguished mélange of shifting chords that failed to engage my attention. Kaki King’s “Other Education,” a three-movement work for electric guitar and chamber ensemble, seemed at times to be channeling the mid-20th century Americana stylings of Aaron Copland and Virgil Thompson, pretty but not entirely convincing as an extended piece. That said, King herself proved very assured virtuoso in her guitar solos. Finally, the second half was devoted to Richard Ayres’ nonsense opera, “No . 42 In the Alps”, with a particular story being projected above the performers through silent-film-style titles, and Jennifer Zetlan providing an exuberant rendition of a far-ranging vocal part, imitating animal sounds at times, wandering far beyond her designated range of “soprano.” They should make a DVD of this program, since the Ayres piece is enhanced by the visual elements and might seem threadbare without them.

The following night I had accepted the invitation of a friend to attend a recital by pianist Alden Gatt presented by an organization called Project142 at Unity Church, 213 58th Street in Manhattan. I had never heard of Gatt prior to my friend’s invitation, but there turns out to be plenty of information on his website. He played a very ambitious program: Prokofiev’s “The Young Juliet” from his suite of ten pieces from the ballet Romeo & Juliet arranged by the composer for piano solo; Robert Schumann’s Symphonic Etudes, Op. 13; five of the 24 Preludes, Op. 34, by Dmitri Shostakovich, and Ravel’s Gaspard de la Nuit, generally considered to be one of the toughest tests for a virtuoso pianist in live recital. As an encore, he played Earl Wild’s Etude based on Gershwin’s song Embraceable You. I was impressed by Gatt’s technical polish and musical insight, particularly in the second half of the program (Shostakovich & Ravel). His Schumann was a bit precarious in a few spots, especially in the finale, where his finger memory seemed to falter slightly a few times, although he quickly recovered without losing any equanimity. A little woodshedding in order for the Schumann… The Ravel was mightily impressive, by contrast, comparing favorably in my recollection with other performances I’ve heard as well as some excellent recordings, including those of Martha Argerich and Vladimir Ashkenazy, generally considered the gold standard in this work. I hope Gatt has a chance to record these. I picked up his debut recital CD during the intermission and was impressed again when listening at home. I think his interpretive abilities have deepened since he made that recording a few years ago. In particularly, I suspect he would play the Bach Italian Concerto with more nuance and subtlety today, to judge by his work on April 28. I hope I encounter his playing again soon. Project142 is a concert series that began as occasional soirees in the apartment of a retired minister. Attendance expanded through word of mouth and now they are held in various larger venues. Unity Church is actually a relatively small hall, seating comfortably about 40 people in a good acoustical space for a piano recital. The concerts are not scheduled out very far in advance, and they cover an eclectic range of music. Those interested in exploring can check the website, www.Project142.org, to see what is coming up. Ticket prices are moderate and sometimes free, since the performers are provided the venue once approved by the host and are responsible for generating their own audience, as there is no budget for advertising. If the general standard of performance is reflected by Mr. Gatt, then this is a series worth following.

On May 5 I attended the NYC premiere of Christopher Rouse’s Requiem at Carnegie Hall, the opening night of this year’s (final) installment of Carnegie’s “Spring for Music” series, which has brought a diverse group of orchestras from the U.S. and Canada to Carnegie Hall to play programs notable for their unusual repertory choices. It is scandalous that Carnegie couldn’t find sponsorship to continue this series beyond this year. The combination of low ticket prices ($25 for any seat) and unusual programming has drawn a younger audience than usually patronizes classical concerts in this city, and the success of this series in drawing an audience goes to prove that high ticket prices are part of the reason why classical concert audiences at are major halls have such a very high average age. At any rate, this opening concert, presenting Alan Gilbert conducting the Westminster Symphonic Choir, the Brooklyn Youth Chorus, baritone soloist Jacques Imbrailo, and the New York Philharmonic, was a major event indeed, the stage full to overflowing and the youth choir parked up in the first tier boxes. With the composer in attendance for what was only the second presentation of a piece first performed in 2007, one had a sense of being present at an important occasion, for Christopher Rouse has emerged as an important composer through numerous important commissions and premieres, not least with the NYP during his period as composer-in-residence. This ambitious piece weaves together poems in English and Italian, hymns in English and German, and the Latin requiem mass (as modified by Hector Berlioz for his own Requiem, one of the inspirations for this piece), and a large orchestra, including an extended percussion section that, in typical Rousian manner, is given its head to make lots of glorious noise. I found the piece a bit uneven and sometimes overextended, but the glorious final minutes made up for any faults. Mr. Imbrailo was terrific in his solos, although I would hope the composer would consider some selective rescoring to address balance problems, especially in the first half of No. 15 in the score, where the soloist was virtually buried under heavy orchestration. In fact, I think it would be worth Mr. Rouse’s time to review Carnegie’s house recording of this performance and think carefully about ways to improve this score, not just in orchestration but also in reducing some of the repetitive parts. What is already a very effective piece could be made more effective, and I bet about 10 minutes could be trimmed from the 90 minute score with profit. Indeed, if I were him I would also eliminate the intermission break. A piece like this — such as the Britten War Requiem or the Berlioz Requiem — works better without an intermission. It may be difficult to do that at 90 minutes, but it is more plausible to do it at 80.

On the other hand, a work that is shorter than an hour can be a real challenge to sit through, as I found to be the case with Thomas Lawrence Toscano’s “The Interview” co-presented by OperaOGGINY and St. Bart’s Episcopal Peace Fellowship at St. Bartholomew’s Church in Manhattan. This is a “cause” piece, in which an Army Public Affairs Officer sits down with two women who have lost children during the struggles of the Middle East to try to “understand their intentions” in forming an organization of Jewish and Muslim mothers to agitate for peace. The intensely dramatic events described in the program as prologue give way to an entirely static conception, an opera consisting of three people sitting at a table talking and singing. The music struck me as competent without being anything special, and did not particularly enhance the text when it was sung. Perhaps an orchestral accompaniment, by introducing some sound color, would make it more interesting, as I found a sameness of rhythm and tempo led to boredom. The three singers, Perri Sussman, Lyssandra Stephenson and Ben Spierman, seemed very devoted to the project but were not able to enliven the material much under the composer’s leadership abetted by pianist Alessandro Simone. During a Q&A with the audience afterwards, the composer revealed that this was just the first of a series of 5 one-act operas, each devoted to some particular cause. Cause-based art has a noble tradition, but it is important that the cause not outweigh the artistry with which it is presented. Nobody can contest the horror of children slain in the context of the continuing struggle between Palestinians and Israelis in Jerusalem, the cause here is admirable, but I don’t think the music and the verses (some of which struck me as awesomely simplistic) really advance it.

Massachusetts Appeals Court Affirms Jury’s Rejection of Gay Man’s Tort Claims Against Former Partner

Posted on: March 20th, 2014 by Art Leonard No Comments

The Appeals Court of Massachusetts upheld a jury verdict against a gay man who sought to hold his ex-partner liable in tort for intentional infliction of emotional distress and battery based on various incidents that occurred during their relationship. The case is M.L. v. S.N., 2014 Mass. App. Unpub. LEXIS 354 (March 19, 2014).

M.L. and S.N. were engaged in a “serious romantic relationship” from 1998 until 2008. Evidently, M.L. was a really hot looking man, since he had once appeared in a nude photo spread in Advocate Men magazine. (Those curious to discover the identity of M.L. who have access to back-issues of Advocate Men (now defunct) should note the court’s description of his photographs, as described in an amicus brief submitted in the case: “a number of the photographs depict the plaintiff naked with an erection or in a position signaling his receptivity to being penetrated through anal sex,” and in one photograph he is shown wearing black leather chaps with a yellow stripe down the side, which evidence at trial indicated was a signal of the wearer’s interest in sexual conduct “involving urination.”)

M.L. claimed that his ex-partner sought to exploit M.L.’s attractiveness by using M.L. as “bait” to lure other men into “threesomes.” M.L. claimed that S.N. would pull down M.L.’s pants or shorts, exposing him in public, for such purposes, and in the course of one threesome that S.N. had facilitated a third party forcing M.L. to perform fellatio to the point of choking by holding M.L.’s head down. M.L. also claimed that S.N. anally raped him while he was unconscious due to drug ingestion, the basis for a battery claim. He also claimed that S.N. had urinated inside M.L. during anal sex without M.L.’s consent.

The trial court overruled M.L.’s motion in limine to have the nude photo-spread kept out of evidence, and barred the battery claim arising from the rape incident on statute of limitations grounds.

The Appeals Court, in a per curiam opinion, said that M.L.’s attorney had failed to preserve his objection to admission of the photos by renewing his objection at the time of their admission, although the court found that it was error for the trial judge to admit them, since they were prejudicial. “We think all would agree that evidence of a nude or partially nude photographic spread showing a young woman, for example in Playboy magazine, would not be admissible as evidence in a trial in which she alleged that her boyfriend years later degraded her and intentionally inflicted emotional distress by forcibly removing her clothing in public and exposing her breasts or genitals,” wrote the court. “A failure to recognize that the photographs at issue here are the same as those in the hypothetical case may be attributable to prejudice concerning the difference between same-sex and opposite sex couples that has no place in the law of our Commonwealth. Likewise, the fact that an individual may have engaged in a sexual act in the past is not license to force him or her to engage in such conduct unknowingly or involuntarily. The rule that is now well entrenched in our law, and codified for certain cases in our rape shield statute, is that an individual’s past sexual conduct cannot and does not mean that he or she is ‘asking for’ rape, sexual assault, or other forms of abuse. The photographs, therefore, should not have been admitted.”

The court also rejected M.L.’s argument that the forced sex with the third party should not be time barred as part of a “continuing tort” theory, finding that this single incident from long ago was “sufficiently discrete” that it should be considered an “individual allegedly tortious act” occurring too long ago to be actionable.

Perhaps now M.L. will have a claim against his trial attorney for professional negligence in failing to object to introduction of the photographs, since it is possible that the Appeals Court would have upset the jury verdict had that objection been preserved.