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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.

A Concert Diary for the First Half of March 2014 – Metropolitan Opera, Carnegie Hall, Peoples’s Symphony Concerts, Houston Symphony

Posted on: March 14th, 2014 by Art Leonard No Comments

The first two weeks of March have been quite busy, and again I’ve fallen behind in posting about my concert-going experiences. So here is a quick catch-up.

I had a double-header on Saturday, March 1, attending the Metropolitan Opera’s production of Prince Igor in the afternoon, and a piano recital by Alexandre Tharaud at Peoples’ Symphony Concerts in the evening.

The Met’s new production of Prince Igor, produced an designed by Dmitri Tcherniakov, takes a new approach to this unfinished opera by Alexander Borodin. When Borodin died, Nikolai Rimsky-Korsakov picked up the pieces and, with the assistance of Alexander Glazunov, put together an opera using much of Borodin’s material and some that Rimsky and Glazunov composed. The overture, for example, was reconstructed by Glazunov from memories of Borodin playing it at the piano, in the absence of any surviving manuscript. In this form the opera made its appearance around the world, but never really won full status in the standard operative repertory, although the Polovtsian Dances, extracted by Rimsky as a concert suite, achieved wide performance in symphony concerts, and the opera was heavily raided for the Broadway musical, Kismet. For this new Met production, Tcherniakov, in collaboration with conductor Gianandrea Noseda and composer Pavel Smelkov (who handled new orchestrations) went back to Borodin’s original and put together an opera that leaves behind the new material composed by Rimsky and Glazunov. We are assured in the program book that virtually all the music we were hearing was by Borodin, although he had some help in fleshing things out orchestrally. This process required dropping some scenes that had become familiar, and reordering the remainder. Tcherniakov imposed on the work a new logic and sequence of action, making it more of an interior exploration of the mind of Prince Igor, a minor noble whose attempt to vanquish the Polovtsian tribe’s invasion of Russian space was unsuccessful.

It is an interesting experiment. Borodin’s music continues to cast its spell, in whatever order it is played, and Noseda conducts a compelling performance by an illustrious Russian cast, with Ildar Abdrazakov an outstanding Igor and Oksana Dyka stunning as his long-suffering wife. As to the production itself, I register my continuing protest against taking historically based operas and resetting them in times other than those contemplated by the composer. Borodin would have expected, as a 19th century composer, that performances of his opera would be staged with sets and costumes suitable for a story taking place in 12th century Eurasia. But here we had on stage soldiers in early 20th century uniforms carrying rifles. We had officers dressed in uniforms that seemed to be from various periods from the late 19th century through Soviet-style uniforms of what might be the 1930s. We had electric light bulbs hanging from the ceiling. We had industrial fixtures suggesting an early 20th century setting. And we had some confusion as well, with a plot summary in the program that is not entirely helpful in explaining what is flashback, what is present, what is taking place in Igor’s imagination or dreams, what is actually happening. I found the third act particularly confusing, as one unit set was apparently intended as the interior of Igor’s palace in Putivl, but some of the action seems to be taking place elsewhere. Is this in Igor’s mind? That occurs to me as an explanation, but didn’t as I was watching the scene unfold.

I think the production is a musical success, but I hope that if the Met decides to restage it in the future, they might try to clarify things a bit in the plot summary and maybe even add some explanatory material to the surtitles displayed on the seatbacks.

Despite the odd decisions about how to costume them, I thought the Met chorus (and interloping supernumeraries) were superbly deployed, and the dancers in the Act II dream sequence ballet, played to the Polovtsian Dances, were superb as well.

On to Peoples’ Symphony Concerts at Washington Irving High School for Alexandre Tharaud’s March 1 recital of music by Schumann, Schubert, Mahler and Beethoven. This was a real attempt at casting against type. Tharaud is mainly known from his recordings and prior appearances as an expert performer in the French piano repertory, with some excursions into Chopin and Scarlatti. But on this occasion he focused on completely different repertory – Austro-German romanticism – with Schumann’s “Scenes from Childhood” suite, Op. 15, Schubert’s 4 Impromptus, D. 899, Tharaud’s solo piano arrangement of the Adagietto movement from Mahler’s Symphony No. 5, and Beethoven’s Appassionata Sonata (Op. 57). It’s two weeks later as I write this and I can remember all the encores, but I recall that one was a sonata by Scarlatti. Tharaud played with the expected clarity and authority, but I felt that some of his interpretive choices were a bit off, including some overemphasis of inner voices and bass lines at the expense of stylistic coherence. The Mahler transcription didn’t work for me. Mahler thought orchestrally in his symphonies and the Adagietto in a keyboard arrangement came across to me as clunky and percussive, totally out of character. Maybe I was just tired after the long afternoon with Borodin, but I was not as enthusiastic as I expected to be. I am a huge admirer of Tharaud’s work from his recordings, but the recital let me down a bit.

It was back to the Metropolitan Opera on March 5 for the revival of The Enchanted Island, a Baroque pastiche opera assembled especially for the Met by Jeremy Sams, drawing plot elements from Shakespeare’s The Tempest and A Midsummer Night’s Dream, and music drawn mainly from works of Handel with interpolated material by Vivaldi, Rameau, Campra, Leclair, Purcell, Rebel and Ferrandini. I loved this when I attended the world premiere on New Year’s Eve 2011 with William Christie conducting, but I thought the current revival fell a bit flat with Patrick Summers on the podium and slight changes in the cast. One thing that did not change was the excellent supporting part of Neptune sung by Placido Domingo, who really commands the stage. David Daniels’ voice seemed a bit submerged by the orchestra. I had particularly bought a ticket of this to see Anthony Roth Costanzo, one of my favorite young countertenors, but I had forgotten how tiny the role of Ferdinand is in this production. One waits for hours, and then Costanzo pops up right towards the end, singing briefly, but beautifully costumed. Indeed, the triumph of this production is in the sets and costumes. But this time around the production didn’t hold my interest to the degree it had at the premiere. In light of the many empty seats I saw on a Wednesday night, I suspect the Met will not be in a hurry to bring this one back.

The next night, March 6, I was in Carnegie Hall for a performance of Beethoven’s Missa Solemnis by the Orchestra of St. Luke’s and the Oratorio Society of New York, with vocal soloists Susan Gritton, Julie Boulianne, Michael Schade and Nathan Berg, conducted by Sir Roger Norrington, whose specialty is historically informed performance of Baroque, Classical and early Romantic music. In line with Norrington’s approach, the string players large eschewed vibrato, tempi veered towards extremes of slow and (more frequently fast), phrasing was a bit clipped at times, dynamics a bit exaggerated. Nothing can really sink the Missa Solemnis, one of the greatest creations of one of the greatest musical geniuses, but I did not feel and lift and thrill that I had experienced when I heard John Eliot Gardner lead period forces in a performance at Avery Fisher Hall several years ago. It felt like Norrington had some emotional distance from the music — music that was very emotional on Beethoven’s part, and that his performing forces — that is, chorus and orchestra, not soloists — were a bit overmatched by the challenges this piece presents. The chorus was, in short, too large — either that, or the orchestra was too small. Well over 100 choristers were listed in the program, and it was quite a crowd assembled on the stage. This is not a full-time professional chorus, and Beethoven’s writing for the chorus in this piece is generally acknowledged to be very demanding. They gave it a good try, but they lacked the polish to carry it all off convincingly. St. Luke’s is a highly proficient group, but one cannot adequately balance such a huge chorus with a chamber orchestra in this piece and expect to make the desired effects. The string body was just too small, and sounded even smaller than usual without using vibrato to thicken the tone. They also seemed quite scrappy in the big fugal passages. Not even a near miss, in my opinion.

Now for something completely different. I was visiting in Houston, Texas, on the weekend, to spend time with my Mom and my Houston relatives (brother and sister-in-law, nephew and his growing family with two toddlers in tow, and niece). Arrangements were made by my brother for us to attend the Houston Symphony Orchestra’s March 8 program at Jesse Jones Hall. I’d never been in that hall before, to the best of my recollection, and I was very impressed. Better sight-lines than Avery Fisher, and acoustics to rival Carnegie. We were sitting in the rear orchestra, under the balcony overhang, but I felt no diminution of high pitched sounds (as one experiences in the Dress Circle at Carnegie or rear orchestra in Avery Fisher). This room fans out rather than being the severe rectangle of Avery Fisher or the traditional shape of Carnegie, and the result is sonically distinguished.

The Houston Symphony is currently “between” music directors, Hans Graf having retired and a new young man slated to begin next fall. The season includes a progression of guests, but they decided to experiment with something different for this concert, dispensing with a conductor, although concertmaster Frank Huang supervised the preparations and led from the first chair (or, in the Piazzolla, standing in the center as soloist). Apart from a handful of woodwind players and a harpsichordist in the opening Haydn Symphony No. 39, all the musicians on stage were string players. The experiment was a success; they played well together without a conductor. The Haydn is a nondescript early symphony that received a vigorous but forgettable performance. But then, with Astor Piazzolla’s 4 Seasons of Buenos Aires concerti, we were in memorable territory. The composer incorporates tango rhythms into classical forms for four brief concerti intended to suggest the various seasons in a South American city. Although most of the solo work was assigned to concertmaster Huang, there were brief solos allotted to some of the other musicians as well. The players obviously enjoyed this piece, getting into the swing of things and sporting wide grins at times reflecting their pleasure in the music. After intermission came a sumptuous performance of Tchaikovsky’s Serenade for Strings. I’ve heard several performances of this in recent years, but always played by chamber orchestras, and it was a completely different and agreeable experience to hear it played by a large, well-disciplined orchestra string section. The Houston Symphony strings sounded great.

Upon returning to New York, I found myself in the midst of Carnegie Hall’s Vienna City of Dreams Festival, with my subscription ticket for the Vienna Philharmonic’s March 13 concert, led by guest conductor Andris Nelsons, who is scheduled to take over as music director of the Boston Symphony in the fall. In keeping with the Festival theme, the program was entirely made up of music associated with Vienna – a symphony by Haydn, two works by Brahms, and encore by Johann Strauss Jr. (The orchestra telegraphed the inevitability of an encore by having a harp on the stage during the second half, when the only work listed on the program did not require that instrument.) Joseph Haydn’s Symphony No. 90 incorporates a joke on the audience, which almost never fails to succeed. The last movement has a false ending followed by a pause, during which the audience applauds. The conductor waves to cut off the applause and starts things up again, leading to the real ending. It may seem obvious, but this symphony is not played with any great frequency, so audiences are always fooled, apart from a handful of those who correctly interpret the program notes or quickly register before they can applaus that the conductor has not dropped his arms. In a canny bit of linkage, the Haydn Symphony was followed by Brahms’s Variations on a Theme by Haydn, thus providing a stylistic bridge to the second half’s performance of Brahms’s Symphony No. 3. We don’t hear the Haydn Variations that much in concert, apart from the occasional all-Brahms festival, but it is a marvelous piece compromised by its length. (Modern U.S. symphony concert programs tend to eschew short orchestra pieces – this one runs just over a quarter hour – in favor of “big” symphonies and concerti, reserving the “short piece” slot for something contemporary. Our loss, since we miss out on hearing the huge repertory of romantic overtures, tone poems and suites that were common in programs from early in the 20th century.) The 3rd Symphony is the most difficult to bring off; tempo selection in the first movement is tricky, and it ends quietly so conductors don’t like to use it to end a concert. On the other hand, it is the most concise and intimate of the Brahms symphonies, and when it works, it’s just terrific.

I think it is difficult to judge an orchestra when it is not playing in its home hall and is being led by a guest conductor. It is hard to know whether what one is hearing has more to do with the leadership on the podium and the acoustic of a strange hall than with the intrinsic strengths and weaknesses of the ensemble. I had a sense throughout the concert that the VPO was a very talented orchestra that fell short of the highest standards we tend to expect from orchestras like the New York Philharmonic, the Boston Symphony, or the Philadelphia Orchestra, to name three major orchestra that perform frequently in New York. By contrast, the VPO sounded to me less precise, less colorful, less well-blended. I have trouble getting past the principal oboe sound (presented by different players in the two halves of the concert), which sets the tone for an orchestra, and which — perhaps by Vienna tradition — is thinner, more piercing, and less rich than the sound cultivated by principal oboe players in U.S. orchestras. Indeed, all the woodwinds have a distinctive sound that seems to me less rich, less legato, more idiosyncratic. Perhaps part of the issue for me is the lack of “hybrid vigor” in an orchestra like the VPO. This appeared to be an all-Caucasian group, overwhelmingly male, and by repute most of the players were students of VPO members before gaining admission to the orchestra. There is a feeling of an inbred traditional style of playing. Perhaps this means that what was presented last night sounded more like what Brahms would have heard at performances of his orchestra music in Vienna in the latter part of the 19th century than one would hear from the U.S. orchestra. But I couldn’t help noting the extraordinary contrast with the NY Philharmonic, where the string sections have a heavy representation of Asian musicians — mainly women — and women are also well-represented in the wind sections. Last night, there was only one woman on the stage playing a wind instrument, the second oboe during the Brahms Symphony, and during the first half of the concert, there could not have been more than 5 or 6 women on the stage, none in the basses or violas or cellos, and a handful in the violin sections. I found myself thinking several times that this orchestra needed some livening up!! They played well, they gave the conductor what he was asking for, but I was not totally enthusiastic about the results.

Probably the best playing of the night came with the encore, “Seid umschlunger Millionen” Waltzes, Op. 443, by Johann Strauss II. No announcement was made, leaving audience members around me puzzled, apart from guessing that it was by Johann Strauss, as this is not one of the more familiar Strauss waltz sequences. Of course, Carnegie identifies encores after the event on their website under the calendar entry for the concert….

It is also difficult to judge a conductor based on a guest-conducting stint, and I’ve little past experience with Maestro Nelsons, who has generated a big reputation from his work on European podiums and recordings. He produced a coherent statement in the Brahms symphony, and that is an achievement, since it is the most difficult of the four. The Haydn Variations were well-characterized, the Haydn symphony was memorable. We will hear more of him when he is regularly conducting the Boston Symphony in its Carnegie Hall visits, and I’m looking forward to that opportunity.

My second half of March begins tonight with a 5 Boroughs Music Festival concert of French baroque music in Queens, tomorrow’s NY Philharmonic Nielsen concert, a Peoples’ Symphony program Sunday afternoon with the Dover Quarter and Leon Fleisher, and a return to Carnegie Sunday night for the grand finale of the Vienna Philharmonic’s Festival residency – a three-hour marathon survey of Viennese music led by Zubin Mehta, centered on Gil Shaham playing the Korngold Violin Concerto. It will be quite a music-heavy weekend, on which I will report when it is all over.

1st Circuit Vacates Koselik Ruling for En Banc Review

Posted on: February 19th, 2014 by Art Leonard No Comments

A majority of the five active judges of the U.S. Court of Appeals for the 1st Circuit has voted to withdraw and vacate the 2-1 panel decision in Kosilek v. Spencer, 2014 U.S. App. LEXIS 951, 2014 WL 185512 (1st Cir., Jan. 17, 2014), which had ruled that the Massachusetts Department of Corrections must provide gender reassignment surgery for Michelle Kosilek, who is serving a sentence of life imprisonment with no chance for parole upon conviction of the murder of her spouse. In its brief statement accompanying the order, 2014 U.S. App. LEXIS 2660 (Feb. 12, 2014), the court gave the parties until March 14 to file any supplemental briefs to those that are already on file in the case, and set the same deadline for prospective amici, who are required to seek prior leave of the court before filing. Reply briefs would have to be filed by March 21. The court set en banc hearing for May 8, 2014.

Given the size of the circuit, things do not look good for Michelle Kosilek getting her gender reassignment surgery. The 1st Circuit is authorized to have six active judges. There is one vacancy at present. Although there are several Senior judges, they don’t participate in en banc proceedings. Assuming that the judges in the majority on the panel were not interested in rehearing the case, that would mean that the dissenter and the other two active members of the circuit all voted for rehearing. Although this does not necessarily mean that the other two judges are set upon supporting the dissenter on the merits, one suspects they would not have voted for rehearing if they agreed with the majority.

Among the various amicus parties that have already filed briefs in the case are a coalition of LGBT and transgender-specific groups represented by Gay & Lesbian Advocates & Defenders, the Boston-based LGBT public interest law firm for New England.

A Weekend’s Entertainment: Monument Men, Jonathan Groff at American Songbook (Lincoln Center), Bertolt Brecht’s “A Man’s A Man” at Classic Stage Company

Posted on: February 19th, 2014 by Art Leonard No Comments

I began the weekend by seeing “The Monument Men,” a new movie from George Clooney based on the story of a special U.S. Army unit that functioned in Europe towards the end of World War II in an attempt to reclaim art stolen by the Nazis. Some reviews have pointed out that this story has been depicted in film before, and questioned whether it needed to be shown again. I found the movie to be a bit disconnected in terms of its flow, and ultimately unconvincing as drama, although there were a few scenes that worked particularly well. Cate Blanchett was oddly stiff as a French woman who worked as a secretary for a Nazi occupation commander in Paris but ultimately divulged information to one of the U.S. Army team, played by Matt Damon, but without getting into any kind of romantic involvement between them. Sort of odd for a Hollywood picture. John Goodman was wasted in this, as was Bill Murray. These guys are great comic actors, but their parts were significantly underwritten. Bob Balaban was fun, and it was kind of neat to see Lord Grantham from Downton Abbey (Hugh Bonneville) as a British member of the team. Of course, at the time of these events, he would have been rather elderly to be pressed into such service, having served in a regiment in World War I (and, of course, he wasn’t actually playing Lord Grantham… but now in my eyes he is that part). I wouldn’t say the movie is a total bomb, but I wouldn’t call it a smash either. Just OK for entertainment.

On Saturday night, I attended the first of two shows by Jonathan Groff in Lincoln Center’s American Songbook series, presented at the Allen Room at Jazz at Lincoln Center’s facility in Time-Warner Center at Columbus Circle. Groff first came to my attention for his star turn in “Spring Awakening” on Broadway. He’s done a fair amount of off Broadway work, appeared in several TV series (including Glee), and is now starring in the HBO series “Looking” about the lives of gay men in San Francisco. The format for these programs is that there is no published song-list distributed to the audience. Instead, in the sort-of simulated nightclub setting of the Allen Room, the performer introduces the songs from the stage, interspersed with autobiographical material and light patter. At the 7:30 show (there would be a repeat at 9:30), Groff did rather more talking than one would expect, although there were 14 songs performed over the space of about 75 minutes. (No intermission.) Groff is charming and, perhaps, talks too much for this format. It would have been nice to have heard a few more songs. He knows how to “put over” a song, but doesn’t have total control of his voice in the higher range. I thought some of the falsetto singing sounded sweet with the amplification but was not always really true to pitch. But he does get into the spirit of the songs, and it was clear that several of them had really deep meaning for him. I was glad to have attended, but I hope he learned some things about putting together and presenting this kind of program (it was his first such solo gig in Manhattan) and would do an even better job if invited back.

Bertolt Brecht’s play “A Man’s a Man” is a product of his German years before seeking refuge in the U.S., and was presented in an English translation by Gerhard Nellhaus. Not knowing the original, I would not know how faithful the translation was in rendering idiomatic German into idiomatic English. An all-male cast included female characters in drag, sometimes obviously not intended to be realistic. I was reminded frequently of Monty Python, but less fantastically humorous. I found some stretches of the first act rather tedious and tended to tune out briefly, but the second act, which was more coherently plotted, worked better for me. There were several cast substitutions, not surprising in that this was the last performance of the run on Sunday afternoon. I would not have gone out of my way to attend this, but my play-going companion was attracted by Stephen Spinella being in the cast and music by Duncan Sheik. This wasn’t conceived by Brecht as a musical, as far as I know, but Sheik composed some songs to be interspersed at key moments, and they were interesting. Spinella was superb, as always, as he always is in everything he is in. He is a treasure, one of our great actors, ever since making his big splash in the original Broadway production of Angels in America… Kaufmann’s new recording of Schubert’s Winterreise is released this week, and I have it on order. Couldn’t possibly pass that one up!

So, on balance, an interesting weekend without anything being a real overwhelming success. But this coming weekend I have Werther (Jonas Kaufmann, be still my heart) at the Met and Yo-Yo Ma at Carnegie Hall, so I expect great things.

Bureaucratic Obtuseness Leads to Discrimination Claim by Transgender Woman against New York City

Posted on: December 4th, 2013 by Art Leonard No Comments

New York State Supreme Court Justice Margaret A. Chan (Supreme Court, New York County) ruled on December 2 that a transgender Jane Doe plaintiff had stated a cause of action against New York City based on the treatment she received when she requested that the Human Resources Administration’s HIV/AIDS Services Administration (HASA) update it records and issue her a new benefits ID card that correctly identifies her name and gender.  My first reaction on reading this case was to question why the New York City Law Department did not negotiate a settlement and is spending time litigating over what appears to be a case of bureaucratic obtuseness at HRA.

Justice Chan’s decision relates that the plaintiff, identified as male at birth in Puerto Rico, came early to recognize her female gender identity and began taking hormones and testosterone suppressants at age 12 to feminize her body. She now lives in New York.  She has undergone medical and surgical procedures to transition fully, and received a New York court name-change order in March 2011.  She is a client of HASA, and applied in August 2011 to change her records and benefits card to reflect her female name and gender.  She points out in her complaint that having the benefits card with the wrong name and gender causes her practical problems and sometimes leads to situations where she may be accused of fraud or otherwise subjected to embarrassment or harassment.

According to her complaint, Jane Doe and “her patient navigator” presented her caseworker at HASA with the court-issued name change order and a letter from her treating physician attesting to her completed gender transition, but her case manager said he “could only submit the request for a name change to the HRA Case Manager, but could not guarantee that the request would be granted.”  As to a change of gender identification, the case worker said that would not be possible without a new birth certificate, which was required by HASA’s administrative policy.  Even when Doe explained that Puerto Rico does not issue new birth certificates in gender transition cases, her case worker, his supervisor, and the Center Manager all insisted that HASA could not change its records to reflect Doe’s current gender identity without such a document.  When Doe requested a written explanation for the denial of her request, she was required to sign a release using her birth name, even though she no longer uses that name to transact business and finds it demeaning.  She also notes that HASA employees insisted on calling her by the male name on her ID card, despite the name-change order.  After continued advocacy, HASA and HRA eventually caved and changed the records, but Doe determined to challenge HASA’s policy of requiring birth certificates to make gender identification changes in its records, arguing that the name-change order and doctor’s certification should be sufficient.  She is represented by Manhattan Legal Services attorney Daniel Pepitone.

Doe brought her lawsuit under both the New York State Human Rights Law and the New York City Human Rights ordinance, alleging gender and disability discrimination.  The state law expressly forbids discrimination in providing public services because of sex or disability, while the City law goes further and expressly forbids discrimination based on gender identity.  Doe claims that she was denied access to benefits, including immediate processing of her request to update her HASA records and issue her a new benefits card reflecting her current gender and legal name.  She also claimed that HASA employees violated her right to privacy by the way they treated her, “because HASA employees were speaking loudly so that others in the office were privy to plaintiff’s request and knowledge of her change of gender.”

The city’s response: Doe was never actually denied benefits or services, and that if she felt harassed or demeaned by HASA employees, this did not “rise to the level of discrimination.”

Justice Chan noted that the City’s anti-discrimination law specifically provides that it “shall be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal or New York State civil and human rights laws, including those with provisions comparably-worded, have been so construed.”

Turning first to Doe’s challenge to the policy of requiring a new birth certificate as a prerequisite for making a gender change in HASA records, Justice Chan noted that this policy is, on its face, neutral and non-discriminatory.  However, she noted, under the City’s law, “a claim of discrimination based on sexual orientation can be stated where a facially neutral policy or practice has a disparate impact on a protected group.”  Justice Chan wrote, “For the transgender community, while there are procedures on obtaining a change to one’s birth certificate after convertive surgery – at least in New York City – it does not hold true everywhere.”  Justice Chan cited a 1983 California opinion that supports Doe’s claim that Puerto Rico does not provide such changes.  “Under the present HASA policy, a transgender person, such as plaintiff, who cannot obtain a change to his/her birth certificate will not be able to obtain a benefits card to indicate a change in his/her gender despite legal name change and documentation from a doctor stating that the medical convertive surgery was complete.  While plaintiff is still eligible for HASA benefits, the unchanged benefits card denies or hampers access to those benefits.  As plaintiff had experienced, she was subjected to accusations of fraud, and denial of tangible benefits because she did not present as a man, contrary to the benefits card indication.  Therefore, while plaintiff is eligible for HASA benefits, she risks loss of such benefits due to her hampered access to them.  Thus, while HASA’s policy appears to be equal across the board, its practical impact for the transgender community is not.”

Justice Chan also found, contrary to the City’s arguments, that the way in which HASA employees treated Doe was “not a light matter.”  She found that their actions were “laden with discriminatory intent,” since they knew based on her documentation that she had transitioned, and “yet did not treat her accordingly or appropriately.”  The judge found that these actions by HASA employees “are against the tenets of HASA which is to assist clients with housing, medical, and financial needs.”  She concluded, “It cannot be said that plaintiff felt demeaned for any reason other than abject discriminatory reasons.”  Consequently, the City’s motion to dismiss the case was denied.

Because Justice Chan concludes that Doe’s allegations are sufficient to state a discrimination claim under the state and City laws, the City’s burden if it wants to proceed with this litigation would be to show that it is somehow necessary to insist on the birth certificate to make the requested change in HASA records, even when a client has presented both medical evidence and a court-ordered name change document.  If Doe’s medical evidence was sufficient for the court to order a name change, one wonders why it would not be sufficient for HASA to revise its records and issue a new benefits card that is congruent with the name change.  While it would be interesting to see whether the City could actually sustain the burden to show that its discriminatory policy has some objective justification, perhaps this opinion will wake up the Law Department to the logical conclusion that HASA should be advised to change its policy and a settlement should be negotiated with Ms. Doe.

Missouri Supreme Court Rejects Benefit Claim from Surviving Partner of Highway Patrolman

Posted on: October 30th, 2013 by Art Leonard No Comments

Missouri law provides that the surviving spouse of a public employee who is killed in the line of duty be entitled to a death benefit equal to half of the deceased employee’s final average compensation.   The statute, adopted in 1969, did not define “spouse,” but was supplemented in 2004 with a definition of “spouse” in accord with the newly-enacted state constitutional amendment banning same-sex marriage.

When a Missouri state highway patrolman, Corporal Dennis Engelhard, was killed in the line of duty on Christmas Day, 2009, his surviving same-sex partner, Kelly Glossip, applied for the death benefit, but was turned down on the ground that he was not married to Engelhard.  Of course, he could not be married to Engelhard in Missouri, where a constitutional amendment and a statute provide that same-sex marriages are neither valid nor recognized in the state.  On October 29, the Missouri Supreme Court, voting 5-2, rejected Glossip’s claim that denial of the benefit violated his right to equal protection of the law in Glossip v. Missouri Department of Transportation, 2013 Westlaw 5799911.  The court noted several times in its opinion that Glossip was not directly challenging the anti-gay marriage amendment or statute, and was not arguing that the state’s definition of “spouse” was unconstitutional.  His argument was that requiring a person to be a legal spouse in order to qualify for the benefit was itself a form of unconstitutional sexual orientation discrimination.

The majority of the court, issuing an unsigned per curiam opinion, said that this was not a sexual orientation discrimination case.  The court pointed out that neither the sex nor sexual orientation of the surviving partner of a law enforcement officer was directly relevant under the benefits provision.  The only relevant fact, according to the court, was whether at the time the officer died he was married to the benefits claimant.  An unmarried partner of either sex would be equally disqualified from receiving the benefit, regardless of their sexual orientation.  Having reached this conclusion, the court treated this as a case of differential treatment because of marital status, a ground whose legitimacy as a basis for government policy has rarely been successfully challenged.

Finding that a marital status distinction is entitled to a presumption of constitutionality and will only be invalidated if the legislature could have had no rational basis for imposing such a distinction, the court identified several possible justifications for limiting the survivor’s benefit to legal spouses.  “Here, the General Assembly reasonably concluded that limiting survivor benefits to spouses would serve the death benefit’s intended purpose as well as the interests of administrative efficiency and controlling costs,” wrote the court.  “Providing survivor benefits to persons who are economically dependent on a deceased state employee is a legitimate state interest, and the General Assembly could have reasonably concluded that the spousal requirement would serve that purpose.”   In a “rational basis” review case, there does not have to be an exact fit between the purpose and the mechanism adopted by the state to achieve it.  “It may be true,” the court commented, “that there are spouses of highway patrol employees who are not economically dependent on the employee and that there are non-spouses who are economically dependent on the employee.  Rational basis review, however, does not require that the fit between the classification and government interest be exact, but merely ‘reasonable,’ and this Court will not substitute its judgment for that of the legislature as to the wisdom, social desirability or economic policy underlying a statute.”

The court pointed out that it was administratively efficient to condition the benefit on the survivor presenting proof of marriage, making unnecessary any sort of case-by-case factual inquiry into whether a non-marital claimant was actually dependent on the employee.  The legislators “could have reasonably anticipated that expanding survivor benefits beyond surviving spouses and surviving children could create a risk of competing claims and subjective eligibility determinations and that such claims would increase the time and cost necessary to resolve benefits claims.”

The court rejected Glossip’s argument that the ”spousal requirement must fail even rational basis scrutiny because the statute was motivated by a desire to harm gays and lesbians,” pointing out that the statute was enacted in 1969, long before Missouri had adopted its statute and constitutional amendment banning same-sex marriage, at a time when no claim for a right to same-sex marriage had ever been made in the state.  The court pointedly quoted from U.S. Supreme Court Justice Anthony Kennedy’s statement in this year’s ruling in U.S. v. Windsor that “it seems fair to conclude that, until recent years, many citizens had not even considered the possibility that two persons of the same sex might aspire to lawful marriage.  For marriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization,” to further make the point that it was unlikely that the 1969 Missouri legislature had a specific intent to harm gay people by adopting this provision.

The court also rejected Glossip’s argument that the survivor benefits statute was a prohibited “special law,” under a provision of the state constitution that prohibits the legislature from enacting “special laws” when a general law can be made applicable to a particular situation.  A general law providing survivors benefits to dependents could cover this situation, argued Glossip, so limiting the benefit to surviving spouses was a forbidden instance of special legislation.

The court suggested the possibility that the outcome of this case could have been different had Glossip decided to take on directly the constitutionality of Missouri’s marriage amendment and statutory same-sex marriage ban, or if he and Engelhard had married out of state and he was now arguing that their marriage should be recognized by Missouri for this purpose.  Without hinting at how such claims might be decided, the court indicated that they would have squarely raised the issue of sexual orientation discrimination.

As to that, the court pointed out that Missouri precedents dictate applying the U.S. Supreme Court’s equal protection analysis under the 14th Amendment to any equal protection issue raised under the parallel provision of the Missouri Constitution, which would require the court to treat U.S. v. Windsor as a controlling precedent.  “The United States Supreme Court left open the question of what level of scrutiny should apply to sexual orientation discrimination in Windsor,” said the court.  “There, as in Lawrence v. Texas, it took a tangential approach to the constitutionality of the challenged statute and held that the statute failed even the most deferential level of scrutiny.  Neither of these cases identified what level of scrutiny applies to cases alleging discrimination based on sexual orientation.  This Court also need not reach that issue here because the survivor benefits statute does not discriminate on the basis of sexual orientation, and Glossip has elected not to challenge Missouri’s statutory and constitutional proscription against same-sex marriage.”

Writing for himself and Justice Draper, Justice Richard B. Teitelman dissented, arguing that the court had mischaracterized this case.  “For decades,” he wrote, “indeed centuries, gay men and lesbians have been subjected to persistent, unyielding discrimination, both socially and legally.  That shameful history continues to this day.  The statutes at issue in this case, sections 104.140.3 and 104.012, RSMo Supp. 2001, bear witness to that history and help ensure that this unfortunate past remains a prologue to the continued state-sanctioned marginalization of our fellow citizens.  The plain meaning and intended application [of these statutes] is to specifically discriminate against gay men and lesbians by categorically denying them crucial state benefits when their partner dies in the line of duty.  This type of intentional, invidious and specifically targeted discrimination is fundamentally inconsistent with the constitutional guarantee of equal protection of the law.”

Teitelman criticized the court’s holding as overlooking “the fact that section 104.140.3 employs a definition of ‘spouse’ that operates to the unique disadvantage of gay men and lesbians, even when, like Corporal Engelhard, they devote their lives to the defense of the same rule of law that relegates them to the status of second class citizens.”

Taking on the majority’s conclusion that this is merely a marital status discrimination case, Teitelman criticized the majority’s failure to consider the context and effect of its ruling.  “By tying the payment of survivor benefits to a definition of ‘spouse’ that renders access to those benefits legally impossible to obtain only for gays and lesbians, the purported marital distinction is also necessarily a distinction based on sexual orientation,” he asserted.  “At some point, equal protection analysis requires an assessment of the practical reality of the case.  In this case, the reality is that Mr. Glossip’s sexual orientation made it legally impossible for him to obtain survivor benefits.”  Thus, the challenged statutes “turn the legal status of marriage into a proxy for discrimination on the basis of sexual orientation.”

Furthermore, he wrote, “The fact that the State does not recognize same sex marriages does not mean that gays and lesbians are deprived of their other fundamental individual constitutional rights.  Nothing in the short, simple text of article I, section 33 [the state's marriage amendment] in any way overrides the separate constitutional guarantee of equal protection by justifying other forms of discrimination on the basis of sexual orientation.”   Teitelman went on to argue that this should be a heightened scrutiny case in light of the “historic patterns of disadvantage” suffered by gay people at the hands of the state, and that the statutes would not withstand such heightened scrutiny. He found it “implausible” to argue that limiting benefits to legal spouses “will ensure that benefits are payable only to those who are most financially dependent on the deceased trooper.”  He pointed out that the state had conceded that Engelhard and Glossip were financially interdependent.  “Marriage simply cannot be a proxy for financial interdependence,” he insisted, “when only gays and lesbians – a relatively small, readily identifiable and historically marginalized group – are categorically excluded from being legally married.”

Because the decision was grounded by the majority of the court in its interpretation of the state constitution, further review by the U.S. Supreme Court appears unlikely, although, in light of U.S. v. Windsor, Glossip could mount a plausible argument that the denial of benefits violates his right to equal protection under the 14th Amendment.  Since the Missouri Supreme Court construes the state’s equal protection clause to be coextensive with the federal equal protection clause, one might treat this as a ruling under both provisions, raising a potential federal constitutional question.   Were the Supreme Court inclined to take on a new gay equal protection case so soon after Windsor, this could provide a vehicle for doing so outside of a direct challenge to a state’s decision to exclude same-sex couples from marriage.

Glossip is represented by a large team of Missouri lawyers together with staff and cooperating attorneys from the ACLU and Lambda Legal.  The court received amicus briefs from a group of Missouri law professors, from a group of elected Missouri officials, and from The Law Enforcement Gays and Lesbians (LEGAL) International (whose brief was written by attorneys from the Chicago office of Lambda Legal).



Schizophrenic Michigan Family Law – Out-of-State Adoption is Stronger than Out-of-State Same-Sex Marriage in Custody Disputes

Posted on: October 23rd, 2013 by Art Leonard No Comments

On October 17, two different panels of the Michigan Court of Appeals ruled in cases where lesbian co-parents were battling over child custody.  In one, a birth mother prevailed because the court refused to recognize the couple’s Canadian same-sex marriage.  In the other, however, the court found that the state’s full-faith-and-credit obligation required recognition of an out-of-state second-parent adoption that could not have been done in-state, and affirmed a sole custody award to the second parent adopter of some children from China who had originally been adopted by her former partner.

In the first case, Stankevich v. Milliron, 2013 WL 5663227, 2013 Mich. App. LEXIS 1684 (Oct. 17, 2013) (unpublished opinion), the court of appeals affirmed the Dickinson Circuit Court’s award of summary judgment to the birth mother of the child who was conceived through donor insemination, on the ground that her spouse is not legally related to the child.  The women married in Canada in 2007, at which time Milliron was pregnant.  She gave birth after the marriage.

The parents separated in 2009 and ultimately disagreed on a visitation schedule.  Stankevich then sought an order dissolving the marriage, affirming that she is a parent of the child, and making custody, parenting time and child support awards.  Milliron moved for summary judgment, arguing Stankevich had no standing to bring the action as a legal stranger to the child.

The court of appeals, in a per curiam opinion, found that under the state’s Child Custody Act a parent is either “a natural or adoptive parent” and that Stankevich was neither.  “Here, there is no dispute that  plaintiff is not related to the child by blood.  Thus plaintiff is not a parent as defined by MCL 722.22(h),” wrote the court.

The court refused Stankevich’s request to use the “equitable parent doctrine,” finding that under Michigan precedents it would not apply to a situation involving a child who was not conceived during a marriage recognized by the state, and Michigan does not, as of now, recognize same-sex marriages.

Citing U.S. Windsor, the court said that the definition of marriage is a matter of state law, and Michigan has decided by statute and constitutional amendment to eschew recognition of same-sex marriages.  “As we are bound by the Michigan Constitution and the plain statutory language, we agree with the trial court that plaintiff is not a parent as defined under the CCA or the equitable parent doctrine, and therefore lacks standing to bring this action,” said the court, which also held that it could not entertain Stankevich’s constitutional equal protection argument, because it was bound by a prior decision of the Michigan Supreme Court and thus did not have authority to declare that such a refusal to recognize the marriage violates the equal protection clause.

On the same day, the Court of Appeals rejected the attempt by a lesbian mother who had entered into joint adoptions of children with her former same-sex partner in an Illinois court to argue in a subsequent custody dispute between them that the adoptions were invalid.  Giancaspro v. Congleton, 2013 Mich. App. LEXIS 1701 (Oct. 17, 2013).

Diane Giancaspro and Lisa Congleton, Michigan residents, began living together in 1995.  Subsequently, Congleton adopted children in China.  After bringing the children back to the United States, Congleton and Giancaspro jointly adopted them through a second-parent adoption proceeding in Illinois.  They went to Illinois for the adoptions because second-parent adoptions are not available in Michigan.  (The pending marriage equality lawsuit in U.S. District Court in Michigan, Deboer v. Snyder, originally began as a 14th Amendment challenge to Michigan’s refusal to allow second-parent adoptions.)

The parties’ relationship subsequently broke down.  In the resulting custody dispute, the trial court at first granted summary judgment to Congleton on her argument that it would violate public policy for a Michigan court to recognize an out-of-state second parent adoption, but the Court of Appeals reversed in an unpublished decision in 2009, finding that full faith and credit required Michigan to recognize the Illinois second-parent adoption judgment.  The court of appeals then returned the case to the trial court for a ‘best interest of the children’ determination.

The Berrien Circuit Court then found that it would be in the children’s best interest for Giancaspro to be their sole legal parent, with visitation rights for Congleton.  The tense relationship between the former partners evidently precluded a joint custody award, and based on the factors considered by Michigan courts in deciding custody disputes between legal parents, Giancaspro won on points.  During this stage of the litigation, Congleton attempted to discredit the Illinois adoption by offering evidence that the women were actually residents of Michigan at the time the adoption was granted, but the trial judge refused to admit the evidence, and rejected Congleton’s motion to reopen the evidence or reconsider its decision after the court had announced its custody award.

On appeal, Congleton again attacked the validity of the Illinois adoptions, arguing that the women had defrauded the Illinois court by claiming to be Illinois residents when they were not, so the Illinois court did not actually have jurisdiction to grant the adoptions under Illinois law.  The Court of Appeals, in a new per curiam opinion, held that Congleton had waived any argument as to the underlying validity of the Illinois adoptions by failing to raise the jurisdictional issue as an affirmative defense during the initial phase of this proceeding.

In addition, the court noted that even were the issue not waived, judicial estoppel would preclude Congleton from repudiating the position she took under oath in the Illinois adoption proceeding.  “In this proceeding,” wrote the court, “defendant now claims that she lied to the Illinois courts and that she and plaintiff were not actually residents of Illinois during the time before the entry of the adoption orders.  This argument is disingenuous in that it allows defendant to enjoy the benefits of the adoption orders for as many years as she could while now attempting to nullify the effect of the adoptions because she deems it advantageous to her.  This appears to be the exact type of ‘fast and loose’ play with the legal system judicial estoppel is designed to prevent.”

The court observed that Congleton had voluntarily submitted to the jurisdiction of Illinois, had sworn that she was an Illinois resident in that proceeding, and had “requested from those very courts the adoptions which she and plaintiff were awarded.”  Taking together the findings of waiver and the application of judicial estoppel, the court of appeals held that Congleton “fails to show that the trial court made any error in refusing to allow defendant to advance the argument that the Illinois courts did not have jurisdiction over her at the time the adoptions were entered.  We therefore conclude that the trial court did not abuse its discretion in denying defendant’s motion to reopen proofs.  Nor did the trial court abuse its discretion in denying defendant’s motion for reconsideration.”  The court awarded Giancaspro her court costs.

The juxtaposition of the two cases shows the unusual situation that Michigan’s ban on same-sex marriage produces.  A woman who was legally married to the birth mother at the time the child was born is treated as a legal stranger to the child, barred from even seeking custody, while a woman who adopted the children of her unmarried same-sex partner in an out-of-state adoption proceeding is awarded custody “on points” due to the powerful full faith and credit obligation to recognize adoption judgments from sister states.  If, as anticipated, the federal court rules in Deboer that Michigan’s refusal to recognize out-of-state same-sex marriages violates the 14th Amendment, this anomaly of Michigan family law may be corrected, although the traditional family law slant in favor of biological parents may still affect the outcome in particular cases.

9th Circuit May Provide First Read on Jurisprudential Meaning of US v. Windsor in Jury Selection Case

Posted on: September 19th, 2013 by Art Leonard No Comments

On September 18 a three-judge panel of the 9th Circuit Court of Appeals heard oral argument in Smithkline Beecham Company v. Abbott Laboratories, an anti-trust case concerning the pricing of an HIV drug for which Abbott holds the patent. (An audio recording of the argument is available on the 9th Circuit’s website.)  During jury selection at the trial, it appeared that counsel for Abbott used a peremptory challenge to eliminate a potential juror who is a gay man.  The trial judge, relying on 9th Circuit precedent, allowed Abbott to use a peremptory strike, and Smithkline appealed the ultimate unsatisfying jury verdict, arguing, among other things, that it was entitled to a new trial because the elimination of the juror due to his sexual orientation violated the 14th Amendment.

Smithkline was relying on the Supreme Court’s Batson decision, which ruled that it violates the equal protection clause for counsel to use a peremptory challenge to keep somebody off a jury because of his race.  In subsequent rulings, lower federal courts and many state courts have decided that the Batson rule applies to other characteristics besides race if, like race, they were “suspect” or “quasi-suspect” classifications for purposes of equal protection analysis.  Smithkline argued that eliminating a gay juror without any explanation that was neutral regarding sexual orientation violates the Batson principle.  This is a point already established in the California state courts, where the California Supreme Court ruled in 2008 in In re Marriage Cases that sexual orientation is a suspect classification under the California constitution.  But the trial judge in the Smithkline case was in the federal judicial universe, and bound to follow 9th Circuit precedent.  The 9th Circuit had ruled in prior cases that sexual orientation is not a suspect classification, and thus without the requirement of heightened scrutiny a trial lawyer would not have a burden of providing a neutral explanation for seeking to exclude a gay juror.

After the US Supreme Court decided U.S. v. Windsor this June, the 9th Circuit panel before which this appeal was pending asked the parties for supplementary briefing.  Does Windsor invalidate the prior 9th Circuit precedent?  Does Windsor’s treatment of a federal statute that discriminated based on sexual orientation lift such cases above the ordinary rational basis review into some form of heightened scrutiny that would preclude the use of peremptory challenges for the purpose of keeping gay people off a jury?  If a lawyer can’t use a peremptory challenge, they would have to challenge the juror for “cause,” which requires persuading the judge that the juror could not render impartial service in the case.  In their supplementary briefing, counsel for Smithkline argued that after Windsor the Batson rules apply to protect gay people from peremptory challenges to their jury service.  Abbott, understandably, counters that the Windsor decision did not apply heightened scrutiny or identify sexual orientation as a suspect classification.

Looking at Justice Kennedy’s opinion for the Court, legal commentators (beginning with dissenting Justice Antonin Scalia) have found it less than clear as to the standard of judicial review that the Court was using.  Justice Kennedy has now written three leading gay rights cases, Romer v. Evans (1996), Lawrence v. Texas (2003), and U.S. v Windsor (2013).  Each of his opinions avoids using the vocabulary for constitutional analysis that legal scholars developed in response to the Court’s earlier due process and equal protection decisions.  Kennedy never explicitly says what level of review he is using.   Dicta in the cases can be construed to suggest that he is using some sort of heightened scrutiny, but the dispositive language in each ruling — the punch-line, as it were — can be construed to hold that the challenged state constitutional amendment, or state or federal statute, fails to satisfy rationality review because of the lack of a non-discriminatory justification.  Lower courts are left to read tea leaves.

In the 9th Circuit, in cases involving the anti-gay military don’t ask don’t tell policy decided after 1996, the court of appeals has taken the position that Romer was an equal protection rational review case and that Lawrence was a heightened scrutiny due process case.  What kind of case was Windsor?  It arose under the 5th Amendment, since it was a challenge to a federal tax provision.  The 5th Amendment does not have an explicit equal protection clause, but the Supreme Court has for almost half a century read into it an equal protection requirement equivalent to that expressly set forth by the 14th Amendment.  In his opinion, Justice Kennedy focused most of his attention on the due process argument, identifying the legal and social status of marriage as being very important, such that exclusion from it was a deprivation of liberty.  Rather late in the opinion he also invoked equality requirements, and ultimately wrote that DOMA Section 3 deprived gay people of the “equal liberty” guaranteed by the 5th Amendment, because there was no significant government interest that could justify such deprivation.  Justice Scalia’s dissent, expressing consternation about the lack of doctrinal clarity, found the opinion contradictory, inasmuch as Kennedy never said that heightened scrutiny applied yet reached a conclusion that, Scalia argued, could not be reached through the application of the normal deferential rationality test.

During yesterday’s oral argument, Lisa Blatt, representing Smithkline, made a strong argument for finding that Windsor requires the 9th Circuit to abandon its most recent equal protection position on sexual orientation discrimination, incorporating the reasoning that the 9th Circuit used to find that Lawrence required heightened scrutiny of due process claims by gay litigants.  Daniel Levin, representing Abbott, focused on the text of the Windsor opinion, when he finally got around to dealing with the constitutional issue, arguing that certain key phrases used here, similar to phrases Kennedy used in Romer in 1996, signaled a rational basis ruling.

Most of Levin’s argument, however, was devoted to trying to convince the court that the case should never have gone to jury selection.  He contended that Smithkline’s complaint didn’t state a valid federal antitrust claim, and should have been dismissed as deficient.  And he argued that if the court agreed with him, it was unnecessary to decide the Batson question on discrimination against gay jurors.  (Blatt strongly argued to the contrary on rebuttal, contending that if there was any structural error in the trial, it was necessary for the court to remand the case for correction of errors).  Levin actually  focused much of his argument on the jury selection issue on other questions concerning what was actually said, contending that it was not established that Abbott’s trial counsel’s challenge was motivated by the juror’s sexual orientation.  For one thing, trial counsel claimed he didn’t know the juror was gay, although Judge Reinhardt commented that one would have to be pretty dumb not to have figured that out in light of references the juror made to his same-sex partner during the voir dire questioning.  For another, Levin pointed out that counsel asked jurors about their knowledge concerning the disputed drug, and this potential juror had heard of the drug.  Levin also noted that the juror was an attorney employed by the court, another reason not related to his sexual orientation why counsel might seek to bar him from sitting on the jury.  Blatt (and some of the judges) came back to trial counsel’s failure to articulate these reasons on the record, as he apparently preferred to use a peremptory challenge after the trial judge ruled that the Batson rule did not apply to this juror.

So, it is possible that the 9th Circuit panel will not have to answer the Batson question, depending what they think of Levin’s argument about the substantive merits of the case or the circumstances under which the juror was challenged.   On the other hand, from the questions and comments of the judges, it appeared that if the court were to decide the Batson issue, it would be likely to rule that sexual orientation discrimination requires heightened scrutiny review and Batson would apply to bar the use of peremptory challenges for the purpose of keeping people off a jury because of their sexual orientation.


Marriage Equality Enacted Today for England and Wales

Posted on: July 17th, 2013 by Art Leonard No Comments
On Monday, July 15, 2013, the Marriage (Same Sex Couples) Bill passed its third reading in the British House of Lords and was referred back to the House of Commons where, surprisingly, there was no interest in doing other than approving the amendments made by the House of Lords.  Thus, the usual “ping-pong” game where legislation goes back and forth between the two Houses until a mutually acceptable version emerges did not occur, and the House of Commons promptly approved the amended bill yesterday, Tuesday, July 16, sending it to Queen Elizabeth II for the final formality of Royal Assent. 
The Queen signed the bill today, July 17, and thus it became The Marriage (Same Sex Couples) Act 2013.  This all happened so fast that the Parliament’s website did not have as of today a final, consolidated version of the bill available, merely the last version approved by the Commons and the Amendments document approved by the House of Lords and concurred in by the House of Commons.
The process after Royal Assent involves the government taking the steps necessary to implement the legislation, and news reports from the U.K. indicate that the first weddings would be taking place in the summer of 2014.
The Act does not itself spell out a timetable for complete implementation. It is a complex piece of legislation, due to the interaction with other statutes and the detailed provisions concerning religious organizations and the effect on existing civil partnerships of same-sex couples. 
The Act includes a measure introduced during the Parliamentary debates, Section 15, under which the government is supposed to set in motion a process to evaluate the Civil Partnership Act 2004, which had provided a legal status equivalent to marriage for same sex couples, and to determine its ultimate fate, as some members of Parliament had argued that same-sex couples should continue to have a choice to be in civil partnerships rather than marriages, and that civil partnership should be made available to different-sex couples.  Section 15 goes into immediate effect, so the government has a mandate to get right to work on it. 
The Secretary of State is now charged with taking the steps necessary for implementation, and there will be a series of announcements as appropriate forms and procedure are made ready, with expectations that the process will be done by about July 1, 2014.  By comparison, my London correspondent for Lesbian/Gay Law Notes, Robert Wintemute of the Faculty of Law at King’s College, noted to me that the Civil Partnership Act was passed in November 2004 but was not finally implemented until December 2005.

The Act affects England and Wales.  A separate bill has been proposed by the government in Scotland which, although still part of Great Britain, has a large degree of legislative autonomy as a result of changes implemented late in the last century.  That bill is expected to pass later in 2013, but it is controversial and there will be much debate, especially as the government is proposing provisions concerning performances of marriages by religious institutions that differ from those contained in the England/Wales act.  Similarly, separate legislation for Northern Ireland has yet to be considered.

The addition of England and Wales to the jurisdictions with marriage equality significantly increases the overall number of people living in such jurisdictions.  According to 2011 census figures, the combined populations of England and Wales amount to more than 56 million people.

Prop 8 Proponents Ask California Supreme Court to Halt Marriages

Posted on: July 16th, 2013 by Art Leonard No Comments

Two weeks after same-sex marriages resumed in California on June 28, the Proponents of Proposition 8 filed a petition with the California Supreme Court, seeking a stay of Judge Vaughn Walker’s 2010 Order and contesting the right of anyone other than the two same-sex couples who brought the federal court challenge against Prop 8 to benefit from that Order.  The Proponents, represented by attorneys from the misnamed Alliance Defending Freedom, an Arizona and D.C. based right-wing litigation group, argued that California Governor Jerry Brown and Attorney General Kamala Harris had misinterpreted Walker’s Order and unlawfully ordered all 58 county clerks in the state to resume issuing marriage licenses, and that those county clerks have a duty under the state constitution to continue enforcing “the law” under which only different-sex couples can marry in California. 

The Proponents asked the Supreme Court to put an immediate halt to issuance of marriage licenses and recording the marriages of same-sex couples, pending a determination on the merits of their argument.  The court rejected this request on July 15, but had previously indicated on July 12 that it would accept briefs from both sides on the issues raised by the Proponents.  The Proponents’ petition to the Supreme Court names as defendants not only those named as defendants in the original Perry v. Schwarzenegger case, but also the other 56 California county clerks. 

The law to which the Proponents refer, originally a statute adopted by voter initiative in 2000 as Proposition 22, was declared unconstitutional by the California Supreme Court in May 2008 in In re Marriage Cases, after which same-sex couples began marrying in California in June 2008. Then in November 2008, the voters approved Proposition 8, an initiative amendment to the California Constitution that used the same language as Proposition 22 and elevated it to the status of a constitutional provision.   This went into effect the day after the election and stopped the performance of marriages.  The California Supreme Court ruled in 2009 that Proposition 8 had been validly adopted, but that marriages performed prior to its adoption continued to be valid and recognized. 

The American Foundation for Individual Rights (AFER) filed suit in federal court, claiming that Proposition 8 violated the 14th Amendment’s due process and equal protection provisions.  Federal District Judge Vaughn Walker ruled in Perry v. Schwarzenegger in 2010 that Proposition 8 did violate the 14th Amendment, finding that same-sex couples have a federal constitutional right to marry on the same basis as different-sex couples, and issued an Order that states: “Defendants in their official capacities, and all persons under the control or supervision of defendants, are permanently enjoined from applying or enforcing Article I, Section 7.5 [Proposition 8] of the California Constitution.”

The defendants named in that case were the governor, the attorney general, the director of the state’s health department, and the county clerks in Alameda and Los Angeles Counties, whose refusal of marriage licenses to the plaintiffs gave the plaintiffs, two same-sex couples, standing to bring the lawsuit.  None of these defendants sought to appeal Walker’s decision, but the Proponents of Prop 8, who had been allowed to intervene in the lawsuit to defend their initiative, filed an appeal to the 9th Circuit, which agreed to stay Walker’s Order until the case was finally resolved.  After deciding, based on an advisory opinion from the California Supreme Court, that the Proponents had “standing” to appeal Walker’s decision, the 9th Circuit affirmed Walker’s decision on narrower constitutional grounds, and Proponents petitioned the Supreme Court for review.  In granting review, the Supreme Court added the issue of Proponents’ standing to appeal as a question to be argued. 

On June 26, 2013, the Supreme Court ruled, voting 5-4, that Proponents did not have standing to appeal Walker’s decision, and sent the case back to the 9th Circuit with orders to dismiss the appeal.  In his opinion for the Supreme Court, Chief Justice John R. Roberts, Jr., said that the district court did have proper jurisdiction of the case, however; the ruling on standing pertained only to the Proponents’ appeals.  Thus, dismissal of the appeals would leave Judge Walker’s decision as a district court ruling that was not appealed.  On June 28, the 9th Circuit dismissed the appeal as ordered by the Supreme Court, and lifted the stay, allowing Judge Walker’s Order to go into effect.

Anticipating these developments, Governor Brown had asked Attorney General Harris for an opinion about the scope of Walker’s Order.  Her June 3 letter to the governor, released publicly on June 26, said that the Order was “statewide” in scope and that the Department of Public Health (DPH) should instruct county officials that when the Order went into effect, “they must resume issuing marriage licenses to and recording the marriages of same-sex couples.”  DPH sent a notice to all county clerks to that effect, and on June 28, DPH sent a follow-up advisory that the stay had been lifted and the Order was in effect.  That afternoon, the plaintiff couples in the Perry case were married in ceremonies at Los Angeles and San Francisco city halls.  Since then, county clerks throughout the state have issued hundreds of licenses to same-sex couples.  There is no indication that county clerks have refused to issue licenses or argued that they are not bound by Walker’s Order to do so.

Spokespersons for the Proponents denounced these developments, arguing, as they had been doing for weeks prior to the decision, that a ruling against them on standing would benefit only the plaintiffs in the case.  They argued that Judge Walker, since retired, did not have authority as a trial judge to order relief for anybody but the plaintiffs, since the plaintiffs did not bring the case as a “class action” on behalf of all similarly situated same-sex couples, and that the plaintiffs’ failure to join all the county clerks in California as co-defendants meant that only the two county clerks who were sued could be ordered to issue licenses and to record the marriages of the plaintiff couples.

At the heart of the Proponents’ argument is Article III, Section 3.5, of the California Constitution, which provides that no “administrative agency” of the state can refuse to enforce a statute unless it has been declared unconstitutional by an appellate court.  In the memorandum they filed with the Supreme Court in support of their petition, they argue that this provision forbids  “executive officials,” including county clerks, from refusing to enforce such a statute, and then make the leap to assert that under this provision, the 58 county clerks are required “to enforce state law defining marriage as a union between a man and a woman.”  By using the term “state law,” they blur the distinction between the statute, declared unconstitutional in 2008, and the subsequent constitutional amendment, which, of course, is not a statute.  Section 3.5 refers only to statutes.

Their broader argument is derived, in part, from the California Supreme Court’s decision in 2004, Lockyer v. City and County of San Francisco, which put an end to the brief period when the San Francisco County Clerk’s office was issuing marriage licenses to same-sex couples at the direction of Mayor Gavin Newsom.  In that case, the California court said that officials such as the mayor and the county clerk did not have authority to refuse to enforce the existing marriage statute based on their own determination that the law was unconstitutional, and enjoined any further issuance of licenses, finding that the marriages that had been conducted were invalid under state law.  In their petition, the Proponents cite other California court opinions applying Section 3.5 in a variety of situations, although none is exactly like the unusual circumstances of this case.

Here, however, a federal court has ruled that Proposition 8 is facially unconstitutional (that is, that it has no constitutional applications) under the 14th Amendment, and was affirmed by the 9th Circuit Court of Appeals.  The Supreme Court has vacated the 9th Circuit’s ruling, not based on any stated disagreement with its determination of the constitutional issue, but based on a determination that the appeal was not properly before the 9th Circuit because the Proponents did not have standing to appeal Judge Walker’s decision.  Chief Justice Roberts’ opinion is careful to avoid any statement on the merits of the case, consistent with his conclusion that neither the Supreme Court nor the 9th Circuit had authority to hear the appeal.  The Proponents now argue that this means that there is no appellate decision finding Prop 8 unconstitutional, so Section 3.5 forbids the county clerks from failing to enforce Prop 8.  They argue that county clerks are “executive officials” who are subject to the restriction in Section 3.5.

Attorney General Harris promptly filed an opposing memorandum, arguing that the court should not issue a stay or immediate injunctive relief, because allowing marriages to continue while the court resolves these issues does not cause irreparable harm to the Proponents, who are not personally injured in any way, and because Proponents were not likely to succeed on the merits of their claim.  “Article III, section 3.5 has no application where officials are acting under a federal court order,” Harris asserted, arguing that “the issue presented by the petition is controlled by the Supremacy Clause of the United States Constitution.”  She also argued that in earlier stages of this litigation, all the parties, including the Proponents, had acknowledged at one time or another that Judge Walker’s injunction “applies statewide.”  Indeed, in his dissenting opinion in the Supreme Court, Justice Anthony Kennedy referred to it as a “statewide injunction.”

Harris cited a 9th Circuit ruling from 2000 that held that Section 3.5 does not excuse state officials from complying with federal law, and that what Petitioners were asking the court to do was to “modify the scope of the district court’s injunction.”  But, of course, a state court, even the highest court of a state, does not have authority to modify a federal court order.  Harris argued that the Proponents were in the wrong court if they wanted to challenge the scope of Walker’s Order.  They should be asking the federal district court in San Francisco, in the first instance.  The problem for them, of course, is that under the Supreme Court’s ruling in their own case, they do not have standing to bring any action concerning Proposition 8 in federal court!

The Proponents also argued, in response to Harris’s arguments, that the Department of Public Health does not control or supervise the county clerks, and thus that Judge Walker’s Order technically does not apply to them.  This seems contrary to the California Supreme Court’s Lockyer ruling, which held that state officials could order the San Francisco County Clerk to desist from issuing marriage licenses to same-sex couples.  Clearly, county clerks do not have autonomy to decide that a state law is unconstitutional, as per that ruling, as they perform a purely ministerial function of enforcing state law.  As such, argued Harris, they are under the control and supervision of the Department of Health, which is charged by state law with administering the marriage license and recordation system through the county clerks, and which is bound by Walker’s Order.

Evidently, the California Supreme Court was convinced by Harris’s argument in opposition to the request for immediate relief, because it issued a two sentence order on July 15, denying Proponents’ “request for an immediate stay or injunctive relief” while granting applications from some of the ADF attorneys who are not members of the California bar to appear in this case as representatives of the Proponents.  The court provided no explanation for this action.  However, on July 12 the court had signaled that it would take up the Proponents’ arguments after full briefing by the parties, ordering that the state file its opposing papers by July 22, and giving Proponents until August 1 to file a reply.  Thus, the court will consider the Proponents’ request for permanent relief in August.  In the meantime, same-sex couples can continue to get married in California while these legal questions are being sorted out.