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Supreme Court Argument Leaves Marriage Equality Proponents Cautiously Optimistic for June 2015 Victory

Posted on: April 28th, 2015 by Art Leonard No Comments

 My first take on today’s oral argument in the Supreme Court:

The United States Supreme Court heard oral arguments in Obergefell v. Hodges, No. 14-556, on April 28, considering the questions whether same-sex couples have a right to marry and to have their marriages recognized by states other than those in which they marry.  The case consolidated appeals from the plaintiffs in four states – Ohio, Tennessee, Michigan and Kentucky — whose district court victories were reversed by the U.S. Court of Appeals for the 6th Circuit in %DeBoer v Snyder%, 772 F.3d 388 (6th Cir. Nov. 6, 2014).  Most commentators agreed that it was possible that the Court would reverse the 6th Circuit on one or more grounds, but during the argument the Court appeared closely divided, and the “swing Justice,” Anthony M. Kennedy, Jr., did not give any clear signal from his questioning and comments about which way he was leaning, sometimes appearing skeptical about the plaintiffs’ claims, at other times supportive.

The Petitioners (plaintiffs in the trial courts) and Respondents (the states, which were defending their victory in the Court of Appeals), had complied with the Court’s request to designate one advocate from each side on each question, with the addition of Solicitor General Donald B. Verrilli, Jr., arguing in support of Petitioners on behalf of the Obama Administration.  Petitioners designated Mary Bonauto, Civil Rights Project Director at Gay & Lesbian Advocates & Defenders, the Boston-based public interest law firm, to argue the marriage question, and Douglas Hallward-Driemeier, head of the Supreme Court litigation practice at the law firm Ropes & Gray LLP, to argue the recognition question.  This was Bonauto’s first Supreme Court argument, but not her first appellate argument on marriage equality, as she had argued the Massachusetts marriage equality case in 2003 that led to the first legal same-sex marriages being performed in the United States.  The Respondents settled on former Michigan Solicitor General John Bursch to argue the marriage question, and Tennessee Associate Solicitor General Joseph Whalen to argue the recognition question.  Whalen was the only one among the advocates who personally participated in the argument before the 6th Circuit, successfully defending Tennessee’s ban on recognition of same-sex marriages.

Bonauto led off the argument and it quickly became clear that the four Democratic appointees to the Court – Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan – were likely votes in favor of same-sex couples having the same fundamental right to marry as different sex couples.  Chief Justice John Roberts quickly moved to dispel the speculations of some commentators that he was a potential vote for marriage equality, as he suggested that what the plaintiffs were seeking was not just “to join the institution, you’re seeking to change what the institution is.”  Roberts characterized “the opposite-sex relationship” as “the fundamental core of the institution” of marriage, and he signaled opposition to the idea that judges rather than legislatures or the voters in referenda should decide whether to change that definition.

As expected, Justice Antonin Scalia weighed in with arguments familiar to anybody who read the 6th Circuit opinion by Judge Jeffrey Sutton, one of his “originalist” acolytes.  Scalia asserted that the question before the Court was not “where there should be same-sex marriage,” but rather “who should decide the point,” and clearly signaled his view that it should be decided by the democratic process of voting and legislating, not by judges.  None of Justice Samuel Alito’s questions or comments suggested any real sympathy for the plaintiffs’ position either, and of course Justice Clarence Thomas was true to form in refraining from questioning or offering comments.

So, as had been speculated from the beginning, the outcome will likely fall to Justice Kennedy, and his opening sally was not calculated to reassure those who were counting on him to quickly embrace the trajectory of his prior opinions for the court in the DOMA and sodomy cases.  “This definition [of marriage] has been with us for millennia,” he pointed out.  “And it’s very difficult for the Court to say, oh, well, we know better.”  On the other hand, he noted that the amount of time between the Supreme Court’s decision striking down racial segregation in public schools and subsequent decision striking down laws against interracial marriages was “about the same” as the time between striking down sodomy laws and the present case on same-sex marriage.  “And so there’s time for the scholars and the commentators – and the bar and the public – to engage in it,” he pointed out.

Kennedy came closer to tipping his hand in the other direction when John Bursch stood up to argue on behalf of the states defending their marriage bans.  Kennedy pressed Bursch to explain how allowing same-sex couples to marry would harm “conventional marriage,” but he left it to the other justices, particularly Breyer and Kagan, to pursue the point as Bursch put forward the notion that the state has a particular interest in assuring bonds between children and their biological parents, with Kennedy only interjecting a question of two along the way, although he characterized as “just a wrong premise” the argument that “only opposite-sex couples can have a bonding with the child.”

Kennedy seemed particularly indignant when Bursch discounted the significance of the dignity that the state bestows on a couple by according them the right to marry.  Bursch had suggested that the state has no particular interest in this, being primarily concerned with children, not with the relationship between the adults.  This was not a good strategic move on his part, in light of Kennedy’s expressed concern in his DOMA opinion about the “dignity” states confer on married couples.  “I don’t understand this not dignity-bestowing,” Kennedy commented.  “I thought that was the whole purpose of marriage.  It bestows dignity on both man and woman in a traditional marriage.  It’s dignity bestowing, and these parties say they want to have that same enoblement.”  When Bursch insisted that “the State has no interesting in bestowing or taking away dignity from anyone, and certainly it’s not the State’s intent to take dignity away from same-sex couples or from anyone based on their sexual orientation,” Kennedy sharply responded, “Well, I think many states would be surprised, with reference to traditional marriages, they are not enhancing the dignity of both the parties.”

Solicitor General Donald Verrilli focused his argument entirely on equal protection, and he was pushed during the questioning on his failure to make the fundamental right to marry argument.  It became clear from the questioning from the conservative justices that they saw the right to marry argument as a non-starter because of – at least in their view – the difficulty of accepting a fundamental right to marry and then having to confront arguments on behalf of a right to plural marriages.  Alito posed a hypothetical about two men and two women seeking to marry as a foursome, which introduced a discordant note into the discussion, and Scalia also harped on this issue.

One absurd point arose when Scalia questioned Bonauto about whether a minister might be required to perform same-sex marriages against his or her religious belief.  Bonauto responded that the First Amendment would shield a minister from any such obligation, but Scalia insisted that if there was a constitutional right to marriage, that might be held to overcome the minister’s free exercise of religion defense.  Bonauto pointed out that no minister had been prosecuted for refusing to perform marriages in marriage equality states, and Justice Kagan jumped in with the example of rabbis who refuse to perform marriages between Jews and non-Jews.  While listening to this part of the argument, I was waiting for somebody to raise the example of Catholic priests who condition their willingness to perform marriages between Catholics and non-Catholics upon the commitment of the non-Catholic parent that the children be raised as Catholics, but nobody suggested that.  Of course, consistent with the Free Exercise Clause, no court would ever order a religious officiant to perform weddings that would violate their religious beliefs, so this was a silly line of questioning.

Bonauto closed with a rebuttal argument that was so precise and well-focused that she was not interrupted for any questions as she highlighted the basic inconsistencies in Bursch’s arguments.  One note of unexpected rama was introduced when a member of the audience stood after Bonauto had finished and burst into a diatribe about sin and abomination until escorted out by security officials.  Chief Justice Roberts seemed ready to delay the Solicitor General’s argument, but Verrilli signified he was ready to press forward.  Scalia made a cryptic remark that the outburst was “refreshing.”  Perhaps he meant to suggest that the Court seriously consider religious objections to same-sex marriage.

After a brief recess, the Court turned to the second question, whether states are required by the 14th Amendment to recognize same-sex marriages contracted in other states.  Douglas Hallward-Driemeier was quickly interrupted by Justice Alito.  “I am somewhat surprised by the arguments you made in your brief,” he said, “because they are largely a repetition of the arguments that we just heard with respect to Question 1.  I thought the point of Question 2 was whether there would be an obligation to recognize a same-sex marriage entered into in another State where that is lawful even if the State itself, constitutionally, does not recognize same-sex marriage.  I thought that’s the question in Question 2.  Am I wrong?”

This quickly clarified a mystery that had caused much speculation among legal commentators after the Court announced that it would review the 6th Circuit’s decision.  Why the second question, since it seemed obvious that if same-sex couples have a right to marry the right to recognition of out-of-state marriages would naturally follow?  This question was posed so that if the Court ruled against the plaintiffs on the right to marry, it could then confront the question whether a state that refuses to allow same-sex marriages – and is constitutionally free to do so – may nonetheless be obliged to recognize out-of-state same-sex marriages.  Justice Alito’s question thus framed the issue for the second hour of argument.

And Alito and Scalia energetically followed up with questions and hypotheticals about forcing states to recognize the validity of marriages that they wouldn’t allow to be formed within their own borders.  Even Kennedy joined in briefly, pointing out that if the Court determined that states do have a sufficient justification for refusing to issue marriage licenses to same-sex couples, might not the same justification suffice to allow them to refuse to recognize such marriages from out-of-state?  Justice Ginsburg did jump in to nail down the point that if the plaintiffs won the right to marry on Question 1, “then the argument is moot.”  Hallward-Driemeier agreed with her, as Joseph Whalen also conceded during his part of the argument.  Hallward-Driemeier emphasized the harms to same-sex couples who married and had children in other states and then might be moved by an employer – the starkest example was the military as an employer – to a state that didn’t recognize their marriage.  This seemed well-calculated to appeal to Justice Kennedy, since he had articulated a concern for the welfare of children of same-sex couples in his DOMA opinion.

As soon as Whalen got up to defend the recognition bans, Scalia appeared to surprise him by raising the Full Faith and Credit Clause, Article IV of the Constitution, which has barely been mentioned over the past two years of marriage recognition litigation.  In 1996, Congress adopted as part of the Defense of Marriage Act a provision stating that states were not required to accord full faith and credit to same-sex marriages from other states.  That provision has not been declared unconstitutional, and in the DOMA decision Justice Kennedy observed that it was not being challenged in that case.  Instead, lower federal courts have focused on the Equal Protection Clause and generally found that states had no rational basis for recognizing different-sex marriages from other states but refusing to recognize same-sex marriages.  Some scholars addressing this issue after passage of DOMA in 1996 observed that traditionally the Full Faith and Credit Clause had not been invoked in marriage recognition cases, since it was not really clear that the Clause even applied to marriages.

But Scalia pressed the point with Whalen.  Always the textualist, Scalia said, “I’m so glad to be able to quote a portion of the Constitution that actually seems to be relevant.  ‘Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State.’  Now, why doesn’t that apply?”  Whalen sought to draw a distinction between “judgments” of courts, which courts routinely honor, as opposed to “laws of each state.”  “And the reason in part that the Court’s decision have said that is that otherwise, each State would be able to essentially legislate for every other State,” he continued.  “Public acts?” asked Scalia in response.  “It would include the act of marrying people, I assume.”  Whalen responded, “My understanding of this Court’s decisions as the reference in the Constitution to public acts is that each State’s laws.”  “So there’s nothing in the Constitution that requires a State to acknowledge even those marriages in other States that are the same?” asked Scalia, receiving an affirmative response from Whalen.  “Really,” asked Scalia, sounding skeptical.  Justice Breyer was eventually drawn into the discussion, indicating he might have to head back to his chambers and start reading Full Faith and Credit cases, evoking laughter from the audience.  Other justices were soon drawn in to what became a rather esoteric conversation about the interpretation and application of the Full Faith and Credit clause, which one suspects was not fully anticipated by the advocates.  There even seemed to be some indication, if perhaps just fleeting, that Chief Justice Roberts might see an application of the Full Faith and Credit Clause here, which could feed speculation that even if the Court were to rule adversely on Question 1, there might be a majority including some of the more conservative justices in favor of marriage recognition.  But only fleeting. . .

When Whalen picked up on Bursch’s argument about the state’s interest in maintaining its definition of parenthood as “biologically-based” as a reason not to recognize the parental status of same-sex spouses towards their children, Justice Sotomayor jumped in, responding to his assertion that Tennessee had always rooted the meaning of parenthood in a biological relationship between parent and child.  “Oh, but you do that for adoptions,” she said.  “What’s the problem?  This is a really big deal?”  Whalen responded, “It is a big deal, Your Honor, because you are changing the way the State defines a parent.  And in the adoption context, you have to understand adoption and the traditional definition of marriage, they work in tandem.  They work together.  As Mr. Bursch described, the objective with regard to marriage is to link children with their biological parents.  When that breaks down, then there’s adoption.”  Sotomayor responded by asking whether a state can refuse to recognize a birth certificate issued by another state that identifies same-sex spouses as the parents of a child.  “Do you think the word ‘records’ in the Constitution includes birth certificates,” referring again back to the Full Faith and Credit Clause.  After Whelan’s affirmative response, Sotomayor continued, “So California without any reason, no suspicion of fraud, no anything, could it refuse to recognize another State’s birth certificate.  Records to me has to have a meaning.”

“Record has a meaning,” Whalen responded.  “It does, your Honor.  The reason that I’m hesitant is that I know that there is disagreement in the cases about exactly what the impact of that is between whether that just means we have to acknowledge the existence of the record for evidentiary purposes, or whether the effect of the record has to be acknowledged.”  “But if a birth certificate were to be a record,” asked Sotomayor, “don’t you think a marriage certificate – it’s an official act of a State.”  While Whalen acknowledged as much, he continued, “I think that the laws that allowed that marriage to occur, when they are different fundamentally with the laws of a State like Tennessee, preclude the application of that same principle from one State to the other.”

Hallward-Driemeier’s rebuttal, like Bonauto’s, was so tightly focused that none of the justices interrupted with questions.  He concentrated on demonstrating the real harms suffered by same-sex couples exemplified by two of the plaintiff couples who had relocated and been denied recognition of their marriages, in one case in the context of emergency medical care for one of their children.  This, of course, was well-calculated to invoke Justice Kennedy’s concern.  For those looking to read the Kennedy tea leaves, there was little to work on in the Question 2 argument, since he barely spoke at all.  Hallward-Driemeier ended with the stark evocation of Jim Obergefell’s struggle to be properly recorded as a surviving spouse on his husband’s death certificate.

Commentators and analysts are likely to pick over the transcript and audio recordings for the next few months trying to find hopeful signs about how the case will turn out, but they may be disappointed to find that the likely “swing” voter, Justice Kennedy, had much less to say than those justices whose positions are much more predictable pro and con.  The most hopeful sign for marriage equality proponents springs not from these arguments, but more from the prior actions of the Court, denying review of the 4th, 7th and 10th Circuit pro-marriage equality rulings last October 6, which allowed same-sex marriage to go into effect eventually in all the states in those circuits, and denying stay petitions from several 9th Circuit states as well as Florida and Alabama, in cases that had not yet been reviewed by the 11th Circuit Court of Appeals (which had also refused to stay the marriage equality rulings from those states).  These actions seemed to clearly indicate that a majority of the Court was on-board with marriage equality, since the stay denials contributed to facts on the ground spreading marriage equality to 37 states representing over 70% of the population, and making the prospect of an adverse ruling on Question 1 a daunting proposition liable to generate frenzied litigation over the status of thousands of marriages performed in those states.  When viewed from that perspective, it seemed highly likely that Justice Kennedy would overcome any qualms he might have about suddenly abandoning “millennia” of different-sex marriage traditions in favor of avoiding the dignitary, financial and other harms suffered by same-sex couples and their children denied the benefits of marriage.

American Symphony Orchestra Examines Obscure Works of Major Composers

Posted on: March 27th, 2015 by Art Leonard No Comments

Last night at Carnegie Hall, the American Symphony Orchestra presented “Opus Posthumous,” a concert devoted to works that were not first performed until after the deaths of their composers. These included an opera overture by Franz Schubert to an opera never published or performed in his lifetime, Anton Bruckner’s Symphony No. 00 (a study symphony he composed but did not consider suitable for performance), and Antonin Dvorak’s Symphony No. 1, which was composed for entry into a composition contest. Dvorak sent his only copy of the handwritten manuscript, which was never returned to him, and the work was long thought lost, only to show up years later in a bookstore where it was purchased by somebody who shared the composer’s surname but was not a relative. The piece was first performed long after the composer’s death, and then in an abridged version.

This was a very pleasant concert of 19th century romantic music, but none of the works is an imperishable masterpiece. Indeed, my opinion after the concert was that Dvorak was lucky the piece was not played when it was written, because it could have impeded his career.  The orchestration is amateurish in places, creating a heavy and clotted effect, and the development of the themes is unduly repetitious.  Some good ideas are just buried under clumsy orchestration, unfortunately. 

Dvorak and Bruckner were late bloomers as mature symphonists.  Dvorak wrote nine symphonies, but published only the last five, and until mid-20th century, most music lovers would say their favorite was Dvorak’s Symphony No. 5, the “New World Symphony.”  By the time I was learning about classical music in the 1960s, it was usually identified as Symphony No. 9 (old “No. 5″), as by then the earlier unpublished symphonies had been edited and published in a complete edition of Dvorak’s music.  But the first four symphonies are rarely performed, as he really didn’t hit his stride until “old No. 1,” which is now known as Symphony No. 6.  Old No. 2 became Symphony No. 7, Old No. 3 became Symphony No. 5, and Old No. 4 became Symphony No. 8.  This is all ancient history for the generation of classical music lovers following me.  With Bruckner, there is last night’s Symphony No. 00, then his first published Symphony, No. 1, then Symphony No. 0 which comes before Symphony No. 2.  Bruckner was very self-critical and withheld pieces from publication if they didn’t meet his high standards.  Bruckner’s situation is complicated by his tendency to revise, abetted by some of his younger supporters who thought his music would be more readily accepted if he would just shorten things!  So there are multiple versions of most of the published symphonies, including so many versions of Symphony No. 3 and Symphony No. 4 (two completely different versions of one of the movements are floating about) that one can easily lose count.

Last night’s Bruckner was a pleasant student work that shows few signs of the mature composer.  Indeed, it sounded much like the Schubert overture that came before it on the program.

There’s nothing seriously wrong with any of these pieces, but none of them stand to become part of the standard orchestral repertory, as they are put in the shade by other works of the composers. The ASO played them all very well under Leon Botstein’s direction, as members of the audience had a rare opportunity to hear works by major composers that they are not likely to get to hear in live performance ever again! This is central to the ASO’s mission under Botstein’s leadership.  To cast light in dark corners….

Federal Court Orders Stay of New Family & Medical Leave Act Regulation

Posted on: March 27th, 2015 by Art Leonard No Comments

U.S. District Judge Reed O’Connor, sitting in the U.S. District Court for the Northern District of Texas in Wichita Falls, issued an order on March 26 requiring the U.S. Department of Labor to stay the implementation of a new regulation that changes the definition of “spouse” under the federal Family and Medical Leave Act to include same-sex couple, wherever they reside, who were married in a jurisdiction that allows same-sex marriages. State of Texas v. United States of America, 2015 U.S. Dist. LEXIS 38264. Judge O’Connor’s order was part of a preliminary injunction awarded to the states of Texas, Arkansas, Louisiana and Nebraska, who joined together as co-plaintiffs in a case originally filed by Texas Attorney General Ken Paxton.

It was unclear from the court’s order whether the regulation was stayed in all of its applications, or just as applied to the state government acting as employers. It was also unclear whether it would apply just to the four co-plaintiff states, or to all states that do not presently recognize same-sex marriages.

The Family and Medical Leave Act, enacted during the Clinton Administration in 1993, requires employers with 50 or more employees to make unpaid leave available for certain purposes to full-time employees after they have completed a year of service. The FMLA also applies to state governments acting as employers.

Family leave could include time off to take care of a spouse or child with health problems. The statute defined “spouse” as “a husband or wife, as the case may be.” Regulations proposed by the Labor Department in 1993 provided that “spouse” means “a husband or wife as defined or recognized under state law for purposes of marriage in states where it is recognized.” In 1995, the Department published a “final rule” making clear that the law of the state where an employee resides would control for purposes of determining spousal status.

After the Supreme Court struck down Section 3 of the Defense of Marriage Act in 2013, the federal government came under the constitutional obligation to recognize legally-married same-sex couples. However, many states withhold such recognition, and the existing FMLA regulation would thus withhold the federal benefit entitlement from married same-sex couples living in states that did not recognize their marriages.

The Labor Department proposed to solve this problem by issuing a new regulation, changing the definition of “spouse” to include all legally-married same-sex couples, regardless where they live. The proposed regulation was published in the Federal Register, comments were received and studied, and a final rule was published in the Federal Register, to go into effect on March 27.

Texas Attorney General Paxton’s lawsuit claimed that the Labor Department could not change the definition of spouse for state government employers. For one thing, he argued, Section 2 of the Defense of Marriage Act, which the Supreme Court did not address in its DOMA decision, specifically provides that states are not required to recognize same-sex marriages performed in other states. For another, he argued, the Supreme Court’s ruling acknowledged that states are entitled to decide who can marry and whose marriages will be recognized within their borders. According to this reading of the case, U.S. v. Windsor, Section 3 of DOMA was unconstitutional because Congress does not have authority to withhold recognition for federal purposes of marriages that states allow and recognize. This is the view, argued by Chief Justice John Roberts in his concurring opinion, that Windsor is essentially a “federalism” case. It’s a view that Justice Anthony Kennedy specifically disclaimed in his opinion for the Court, however, and the question of how to characterize that decision is a topic of lively debate among legal scholars and lower court judges.

Paxton argued that the Labor Department can’t order Texas through a regulation to recognize marriages contrary to the Texas Constitution and statutes, especially when that regulation conflicts with Texas’s right, under Section 2 of DOMA, to refuse to recognize the marriages.

Although there is a respectable body of scholarly opinion that Section 2 of DOMA is unconstitutional, and many federal courts, including four circuit courts of appeals, have ruled that states are required to recognize legally contracted same-sex marriages, the Supreme Court will not speak on the merits of these issues until it rules in Obergefell v. Hodges, most likely in June after the April 28 oral argument in Washington.

Until then, Judge O’Connor pointed out, the district court is bound by existing precedents in the 5th Circuit. Although a panel of the 5th Circuit heard arguments in several marriage equality appeals early in January, it has yet to issue a decision. Since prior 5th Circuit precedents mandate that trial judges in the circuit use the most deferential standard of judicial review when considering laws that discriminate because of sexual orientation, and Section 2 of DOMA is still in effect, Judge O’Connor concluded that a state government employer cannot be compelled by a federal regulation to recognize same-sex marriages performed in other states.

This is only a preliminary injunction, and Judge O’Connor cautioned that upon a full consideration of the merits there might a different conclusion, especially if that takes place after either the 5th Circuit or the Supreme Court rules on pending marriage equality cases. So this stay may turn out to be a temporary road-bump on the path to equal treatment for married same-sex couples living in states that don’t recognize their marriages.

Although Judge O’Connor’s legal analysis concluded that the Labor Department could not by regulation order states to recognize same-sex marriages, his stay was phrased in more general terms: “The Department of Labor must stay the application of the Final Rule, pending a full determination of this matter on the merits.” This might just mean that for now the rule does not apply to government workplaces in Texas and the other plaintiff states, but can go into effect for other workplaces. That’s what it should mean to be consistent with the court’s reasoning. The test will come when a private sector employee in Texas requests FMLA leave to care for a same-sex spouse, is turned down, and seeks vindication in the courts. But the entire problem may disappear when the Supreme Court rules in June.

New Jersey Supreme Court Ruling Imperils Ravi Conviction in Bias Crime Case

Posted on: March 18th, 2015 by Art Leonard No Comments

A unanimous ruling by New Jersey’s Supreme Court in State v. Pomianek, 2015 N.J. LEXIS 275, 2015 WL 1182529 (March 17, 2015), striking down part of the state’s Bias Intimidation Law, may imperil the conviction of Dharun Ravi in the suicide of Tyler Clementi , the gay Rutgers University freshman who had been Ravi’s dormitory roommate.

The court’s ruling came in the case of David Pomianek, Jr., a white man who was convicted by a superior court jury of bias-harassment of an African-American co-worker by locking him in a cage at work for a brief period of time in what Pomianek considered to be a “harmless caper,” according to the opinion by Justice Barry Albin.

Under N.J.S.A. 2C:16-1(a)(3), a person could be convicted even though he did not intend to intimidate the victim or even have knowledge that the victim might be intimated by his conduct, so long as the victim felt intimidated and believed that he was being harassed because of a forbidden ground under the statute.  In this case it was race.  In the Ravi case, it was sexual orientation which, together with gender identity, are also forbidden grounds for harassment under the statute.

The jury in Pomianek’s case found a lack of intent or knowledge on his part on the bias charges, but convicted based on the victim’s perceptions of being harassed because of his race, as well as some other related charges.  Pomianek’s conviction under this provision was reversed by the New Jersey Appellate Division, which concluded that a conviction “based on the victim’s perception” and not on the “defendant’s biased intent” would violate the 1st Amendment.  The Appellate Division then “read into” the statute an intent requirement and sent the case back to the superior court for a new trial.

The state appealed, and the Supreme Court focused on the Due Process Clause of the 14th Amendment rather than the 1st Amendment.  “In focusing on the victim’s perception and not the defendant’s intent,” wrote Justice Albin, “the statute does not give a defendant sufficient guidance or notice on how to conform to the law.  That is so because a defendant may be convicted of a bias crime even though a jury may conclude that the defendant had no intent to commit such a crime.”   Since a defendant would not necessarily know that a particular person would feel intimidated by particular conduct, they would not be on notice that their conduct might be illegal.

Disagreeing with the Appellate Division, however, Albin found that courts cannot “rewrite” a statute to supply a missing intent requirement.  “That level of judicial tinkering with legislation exceeds the bounds of our authority,” he wrote.  Since the court had resolved the case on 14th Amendment grounds, it refrained from addressing the Appellate Division’s 1st Amendment holding.  The court reversed Pomianek’s conviction under the bias law.  Since the jury found no intent, there was no basis to uphold it, or to require a new trial.

According to the court’s opinion, the provision basing criminal liability entirely on the victim’s perceptions made the New Jersey statute “unique,” as no other hate crime law in the country imposes liability in such circumstances.  The ruling leaves intact the other two operative provisions of the law, criminalizing intentional or knowing bias intimidation.  The requirement to show the requisite intent has proven a major stumbling block in hate crime prosecutions around the country, and has deterred prosecutors in some cases from bringing hate crime charges in cases that appear, at least circumstantially, to involve defendant bias, where there was not strong evidence of discriminatory intent.

The Dharum Ravi trial became a rallying point for people concerned about bullying of gay students.  Ravi was charged with using a webcam to spy on Clementi having sex with another man in their dorm room, and then sharing the images with others online, leading Clementi, a sensitive young man whose coming out to his parents had not been a total success, to become despondent and ultimately suicidal.  Clementi  jumped off the George Washington Bridge just days after learning that the webcam images were spreading on Twitter.  Rutgers University undertook major reforms in response to the incident, and Clementi’s family established a foundation to promote understanding for young gays.

Charges were brought against Ravi under several provisions, including the one struck down in the Pomianek case, and the judge allowed evidence about Clementi’s reactions to learning about the webcam spying to be presented to the jury.  The New York Times reported on March 18 that jurors in the Ravi case “said after the conviction that some of the most convincing evidence of Mr. Ravi’s guilt came from Mr. Clementi’s own complaints and online posts after he learned that he had been spied on.”

The judge was sufficiently concerned about flaws in this provision that he did not enhance Ravi’s sentence to reflect conviction on this ground, according to the account in the Times.  Ravi received a short prison sentence – 30 days – and was released after only 20 days for good behavior in prison.  The state appealed the judge’s failure to enhance the penalty due to the bias harassment conviction.  Ravi’s lawyer raised constitutional concerns in responding to the state’s appeal. The case is still pending in the New Jersey court system.

The Supreme Court’s March 17 ruling makes it likely that some or all of the Ravi conviction will also be reversed.

Supreme Court Sets Hearing Date for Marriage Equality Appeals

Posted on: March 6th, 2015 by Art Leonard No Comments

On March 5 the Supreme Court posted on its website the last argument calendar for the year, listing for Tuesday, April 28, the appeals in Obergefell v. Hodges, Tanco v. Haslam, DeBoer v. Snyder and Bourke v. Beshear, the four marriage equality appeals from the states of the 6th Circuit.  The arguments will begin at 10 am.  The Court does not broadcast its arguments live, but in a press release also issued March 5 the Court announced that an audio recording of the argument, together with a written transcript, will be posted on the Court’s website by 2 pm on the date of the argument.

This last bit is an unusual move, inasmuch as the Court usually delays posting audio recordings until Friday on argument weeks, although transcripts are usually posted a few hours after a hearing concludes.  Indeed, earlier this week the Court had refused a request by news organizations for same-day posting of the audio recording in the Obamacare case, argued on Wednesday, March 4.  Delaying the posting of audio recordings sharply reduces their usefulness to the media, since they want to post their stories about the argument on the same day it is held.  Holding up posting the audio until Friday means that they can’t link audio clips to their on-line articles, or play short clips on TV, radio and webcast news programs.  So the decision to do it for the marriage cases signifies some understanding by the Court about the eagerness for transparency by the millions of gay people around the country who are paying attention to these cases.

Supreme Court Grants Four Petitions to Review 6th Circuit’s Marriage Ruling

Posted on: January 19th, 2015 by Art Leonard No Comments

The U.S. Supreme Court announced on January 16, 2015, that it was granting four petitions to review the 6th Circuit Court of Appeals ruling in DeBoer v. Snyder, 772 F.3d 388 (Nov. 6, 2014), which had rejected the claim that same-sex couples have a constitutional right to marry and to have such marriages recognized by other states.  The 6th Circuit’s ruling, issued on November 6 on appeals by four states from district court pro-marriage equality decisions, had opened up a split among the circuit courts, as the 4th, 7th, 9th and 10th Circuits had all ruled in favor of marriage equality claims during 2014, and the Supreme Court had refused on October 6 to review the rulings by the 4th, 7th and 10th Circuits.  (The 9th Circuit ruled was issued the day after the Supreme Court announced the three cert. denials, and only one of the two states involved in that case, Idaho, has filed cert. petitions, on which the Court has not taken action.) DeBoer v. Snyder, No. 14-571, cert. granted, 2015 WL 213650 (Jan. 16, 2015); Obergefell v. Hodges, No. 14-556, cert. granted, 2015 WL 213646 (Jan. 16, 2015); Tanco v. Haslam, No. 14-562, cert. granted, 2015 WL 213648 (Jan. 16, 2015); Bourke v. Beshear, No. 14-574, cert. granted, 2015 WL 213651 (Jan. 16, 2015).  Attorney General Eric Holder, Jr., quickly announced that the Justice Department would file a brief with the Court urging reversal of the 6th Circuit.

The Court’s announcement of the cert. grant was accompanied by an announcement that the cases have been consolidated for the Court’s consideration, and that the grant was limited to the following two questions: (1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? (2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state?  The Court allotted 90 minutes for oral argument on Question 1 and 60 minutes for oral argument on Question 2.  Presumably these time allocations were made to assure that attorneys representing each of the four states involved – Ohio, Michigan, Kentucky and Tennessee – would have time to argue, and that representatives of each of the Petitioners would also have sufficient time.   Also, presumably, the questions were phrased this way and the argument divided into two parts because some of the cert. petitions address only marriage recognition, while others asked whether states are required to let same sex couples marry.

Three of the cases were decided on pretrial motions while the Michigan decision (DeBoer) followed a full trial on the merits, providing the Court with a trial record and detailed factual findings by the district court.  The Court limited the parties to briefing on the merits and presenting oral arguments on the questions presented in “their respective petitions.”  Thus the parties in the Ohio (Obergefell) and Tennessee (Tanco) cases will be arguing on Question 2, while the parties in the Michigan (DeBoer) case will address Question 1, and the parties in the Kentucky case (Bourke) case will be arguing on both questions.  Presumably the Court also scheduled a separate argument on the recognition question because it implicates some different doctrinal issues from the marriage argument.  Indeed, the recognition question could be decided by a straightforward extension of U.S. v. Windsor without ever addressing whether states are required to issue marriage licenses to same sex couples, since the states are not really presenting significantly different arguments from those raised by the defenders of DOMA as reasons for the federal government to refuse to recognize same sex marriages.   The Court’s announcement did not specify how the time would be divided between the parties, but presumably Petitioners will get half the time and Respondents will get half the time and perhaps be left to work out among themselves how to allocate the time within their share.  Several LGBT litigation groups are among the attorneys representing Respondents.

The Court’s announcement included a tight briefing schedule calculated to get the case argued and decided before the end of the Supreme Court’s term in June.  Petitioners’ merits briefs are due by 2 pm on Friday, February 27, Respondents’ briefs by 2 p.m. on Friday, March 27, and all reply briefs by 2 p.m. on Friday, April 17.  Potential amici would be subject to the same tight briefing schedule.  The last scheduled argument date on the Court’s calendar for the October 2014 Term is April 29, 2015, so it seems likely the arguments will be held on April 27, 28 or 29, which would give the Court two months to settle on opinions if it wants to release them before the term ends.  According to the Court’s posted calendar, the last date for announcing decisions is June 29, but the Court has been known to extend the end of the term by a few days to dole out end-of-term opinions as they are ready.

The Court’s actions since October 6 may provide some insight in trying to forecast how the Court will ultimately rule.  After it denied certiorari in the cases from the 4th, 7th, and 10th Circuits on October 6, the Court denied all subsequent motions from other states in those circuits to stay subsequent marriage equality rulings issued by district courts there.  The Court similarly denied all motions to stay district court rulings from states in the 9th Circuit after that circuit’s October 7 ruling.  Most significantly, the Court issued an order on December 19, denying a motion by Florida Attorney General Pam Bondi to stay a U.S. District Court marriage equality ruling in that state, pending the state’s appeal to the 11th Circuit Court of Appeals.  That a majority of the Supreme Court was not willing to stay the Florida ruling, even though the case was yet to be decided by the 11th Circuit, spoke volumes about the likely outcome of its decision on the merits.  If a majority of the Court was not willing to stay the Florida ruling pending appeal, it seems likely that a majority of the Court is ready to rule on the merits in favor of marriage equality.  Only Justices Antonin Scalia and Clarence Thomas were announced as disagreeing with the Court’s denial of a stay.  Although it is always hazardous to predict what the Supreme Court will ultimately do on an issue as to which it is likely to be sharply divided, it is also likely that there will be some consistency between the Court’s actions on stay motions after October 6 and its final ruling.  It is worth noting that prior to October 6, the Court granted every stay motion presented by a state seeking to delay lower court marriage equality decisions pending appellate review.

Over two years ago, the Court announced in December 2012 that it would review a decision by the 9th Circuit Court of Appeals that struck down California’s Proposition 8, a state constitutional amendment enacted by voter initiative in 2008 that banned the performance or recognition of same sex marriages in California.  At that time, the Court added a question to those posed by the defenders of Prop 8 in their petition for review of the lower court decision striking it down: whether the Petitioners had “standing” to appeal the original ruling by the district court in San Francisco?  As none of the California officials named as defendants in Perry v. Schwarzenegger was willing to defend Proposition 8 on the merits, the district court had allowed the proponents of the initiative to intervene, and it was they who were appealing the ruling.  During the oral argument in that case, titled Hollingsworth v. Perry, 133 S. Ct. 2652 (2013), some of the time was taken up by arguments about the Petitioner’s standing, but the remaining time was devoted to arguing the merits.  Those curious about the types of questions the Supreme Court justices might pose to attorneys on Question 1 in the DeBoer case can access the audio recording of the oral argument on the Supreme Court’s website.  (The oral argument in Hollingsworth did not focus on the recognition question.)

Based on the Hollingsworth oral argument, there were predictions that the Court might vote 5-4 to strike down Proposition 8, but ultimately the Court concluded, in an opinion by Chief Justice John G. Roberts, Jr., that the Petitioners did not have standing, thus leaving the district court’s ruling in place and effectively striking down Proposition 8 without a Supreme Court ruling on the merits, on June 26, 2013.  Same sex marriages resumed in the nation’s most populous state a few days later.  The dissenting opinion in Hollingsworth was written by Justice Anthony M. Kennedy, Jr., who argued that the Court had erred in finding lack of standing but who carefully limited his opinion from expressing any view as to the constitutionality of Proposition 8.

Justice Kennedy was the author of the other momentous marriage equality decision issued on the same day, United States v. Windsor, 133 S. Ct. 2675 (2013), in which the Court voted 5-4 to declare unconstitutional the federal definition of marriage in the Defense of Marriage Act.  In common with Kennedy’s earlier gay rights opinions in Romer v. Evans and Lawrence v. Texas, his Windsor opinion was not ideally clear about its doctrinal grounding, never expressly stating that the case involved a fundamental right or a suspect classification, or merited heightened scrutiny, thus spawning a variety of views from legal commentators and lower court judges and the precedential meaning of the opinion.  The 9th Circuit construed Windsor to be a suspect classification case, and decreed “heightened scrutiny” as the standard to apply in subsequent equal protection cases brought by gay plaintiffs.  See Smithkline Beecham Corp. v. Abbott Laboratories, 740 F.3d 471, motion for rehearing en banc denied, 759 F.3d 990 (9th Cir. 2014). On this basis the 9th Circuit subsequently struck down the Nevada and Idaho same sex marriage bans in Latta v. Otter, 771 F.3d 456 (9th Cir. 2014), motion for rehearing en banc denied, 2015 WL 128117 (Jan. 9, 2015), petitions for cert. pending.  Some other courts ducked these issues, instead striking down bans on same sex marriage by finding that none of the alleged justifications for the bans survived some form of rational basis review, or that the bans were products of unconstitutional animus.  Some commentators have suggested that Kennedy’s decision is most explicable as being based on his view that DOMA was an expression of animus against gay people by Congress.  Justice Antonin Scalia, dissenting from the Court’s decision, argued, as he had in his Lawrence dissent ten years earlier, that the majority opinion would support claims for the right of same sex couples to marry, and many of the lower court decisions cited and quoted from one or both of his dissents in support of their conclusions.

The Windsor ruling led to an avalanche of marriage equality lawsuits in every state that did not allow same sex couples to marry. The avalanche of lawsuits soon turned into an avalanche of court opinions.  Within weeks of Windsor, the federal district court in Ohio had ordered preliminary relief in Obergefell v. Kasich, 2013 WL 3814262 (S.D. Ohio, July 22, 2013), a marriage recognition case, and in December the district court in Utah issued a ruling on the merits striking down that state’s same sex marriage ban in Kitchen v. Herbert, 961 F.Supp.2d 1181 (D. Utah, Dec. 20, 2013).  Dozens of district court rulings and rulings by four circuit courts of appeals followed during 2014, so that by the time the Court granted cert. to review the 6th Circuit decision on January 16, 2015, same sex couples could marry in 37 states and the District of Columbia.  (In two of those states, Kansas and Missouri, disputes about the scope of lower court rulings made marriage available only in certain counties while the litigation continued.) There were also marriage equality district court decisions pending on appeal before the 1st, 5th, 8th and 11th Circuits.  The only federal courts to have rejected marriage equality claims after Windsor were district courts in Louisiana and Puerto Rico and the 6th Circuit Court of Appeals, in the consolidated case from four states that the Supreme Court will review.  A week before granting cert. in the 6th Circuit case, the Court rejected an attempt by Lambda Legal to get direct review of the Louisiana decision, Robicheaux v. Caldwell, 2 F.Supp.3d 910 (E.D. La. 2014), cert. denied, 2015 WL 133500 (Jan. 12, 2015).  The Court denied that petition just days after the 5th Circuit heard oral arguments in that appeal as well as state appeals from marriage equality rulings in Texas and Mississippi.

The most pressing question presented by the cert. grant, of course, is whether the Court will use this case to declare a constitutional right to marry throughout the United States, and to have those marriages recognized wherever a married couple might travel or reside.  But to those following the course of gay rights in the courts, the question of what rationale the Court uses to decide the case will also be pressing, especially as the various circuit court decisions have adopted different theories that might have a different impact for litigation about other issues.  This case may also give the Court an opportunity to clarify the circumstances under which lower federal courts are bound to follow an old Supreme Court decision whose rationale appears to have been eroded by subsequent legal developments.

The 6th Circuit opinion by Circuit Judge Jeffrey Sutton held that the Supreme Court’s dismissal of a constitutional challenge to Minnesota’s same-sex marriage ban in Baker v. Nelson, 409 U.S. 810 (1972), precluded a ruling for the plaintiffs, as the Supreme Court had never overruled or disavowed that decision, in which the Court had stated that the issue of same-sex marriage did not present a “substantial federal question” with no further discussion or explanation.  That ruling was also cited by the Louisiana and Puerto Rico district courts in their rejection of marriage equality claims, and it played a prominent role in a lengthy dissenting opinion issued just a week earlier by 9th Circuit Judge Diarmuid O’Scannlain, protesting his court’s refusal to reconsider its marriage equality ruling as requested by Idaho Governor Butch Otter.  See Latta v. Otter, 2015 WL 128117 (Jan. 9, 2015).

The question of the continuing precedential authority of Baker v. Nelson came up during the oral argument at the Supreme Court in Hollingsworth, the Proposition 8 case, when counsel for the Prop 8 proponents argued that the district court should not have ruled on the merits in that case because of Baker.  At that time, Justice Ruth Bader Ginsburg dismissed Baker’s significance, point out that when Baker was decided the Court had not yet issued its rulings holding that heightened scrutiny applied to sex discrimination claims.  Because the 6th Circuit put such weight on Baker v. Nelson, it is likely to be discussed again during the DeBoer argument, and might also be addressed in the Court’s subsequent opinion.

The 4th, 7th, 9th and 10th Circuits all held that Baker was no longer a binding precedent, noting that since 1972 the Court had expanded its view of the fundamental right to marry in a series of cases building on its historic 1967 decision striking down Virginia’s criminal law banning interracial marriages, Loving v Virginia; that it had struck down an anti-gay state constitutional amendment on an equal protection challenge in Romer v. Evans in 1996; that it had struck down anti-gay sodomy laws in Lawrence v. Texas in 2003; and, of course, that it had struck down as violating both due process and equal protection the federal ban on recognizing same sex marriages in Windsor in 2013. In light of all these developments, even though the Court had never expressly overruled Baker, it would be ludicrous to suggest that same sex marriage does not present a “substantial federal question” after June 26, 2013. Even the Court’s most outspoken opponent of gay rights, Justice Antonin Scalia, might conceded to that point, since his dissenting opinions in Lawrence v. Texas and U.S. v. Windsor both proclaimed that the rationale of the majority opinions in those cases would open up claims for same-sex marriage, rendering the Court’s ipse dixit in Baker irrelevant.  The Windsor majority opinion did not even mention Baker v. Nelson, which the court below, the 2nd Circuit, dismissed as not relevant to the questions presented in that case.

The courts that have rejected marriage equality claims relying on Baker have stressed that the Court’s summary dismissal in Baker followed by several years its ruling in Loving v. Virginia.  They argue that this makes clear that the fundamental right to marry, as identified in Loving, could not extend to same sex couples; if it did, they argued, the Court would not have dismissed the Baker appeal.  This argument treats Loving as entirely a race discrimination case, but it conveniently ignores the way Loving was expanded by the Supreme Court in subsequent cases, including Turner and Zablocki, which spoke broadly of the fundamental right to marry as transcending the narrow issue of procreation and didn’t turn on racial issues.

In the marriage equality decisions during 2014 from the 4th and 10th Circuits, Bostic v. Schaefer, 760 F.3d 352 (4th Cir.), cert. denied, sub nom Rainey v. Bostic, 135 S. Ct. 286 (Oct. 6, 2014), and Bishop v. Smith, 760 F.3d 1070 (10th Cir.), cert. denied, 135 S. Ct. 271 (Oct. 6, 2014), the courts held that same-sex couples were being deprived of a fundamental right to marry, and that the states had failed to show that they had compelling justifications for abridging that right.  Hedging their bets, these courts also found that the state’s justifications failed to meet rationality review.  A Supreme Court ruling on this ground would not disturb the Court’s continuing reluctance to find explicitly that sexual orientation is a suspect classification, which would raise a presumption of unconstitutionality every time the government adopts a policy that discriminates on that basis and would put the burden on the government to prove an important, even compelling, policy justification to defend its position.  On the other hand, the 7th and 9th Circuits, in Baskin v. Bogan, 766 F.3d 648 (7th Cir.), cert. denied sub nom. Bogan v. Baskin and Walker v. Wolf, 135 S.Ct. 316 (Oct. 06, 2014), and Latta v. Otter, 771 F.3d 456 (9th Cir. 2014), motion for rehearing en banc denied,  2015 WL 128117 (Jan. 9, 2015), premised their decisions on equal protection, with the 9th Circuit, in line with its earlier ruling in a jury selection case, holding that sexual orientation discrimination calls for heightened scrutiny and the 7th Circuit following a similar path without articulating the “suspect classification” terminology.  A Supreme Court ruling based on equal protection that overtly applies heightened scrutiny would have a more far-reaching effect in other gay rights cases outside the marriage issue, which is why it seems more likely that the Court would take the due process route, or, as some argue that Justice Kennedy did in Windsor, attribute the same-sex marriage bans to unconstitutional animus and avoid any overt expression as to the other doctrinal issues.  The Court might be leery about reaffirming too broad a fundamental marriage right, for fear that it would put in play constitutional challenges to laws penalizing polygamy, adultery, and incest (as Scalia argued in his Lawrence dissent).  A ruling premised on finding animus as the prima motivator of same sex marriage bans would end the bans without necessarily altering Supreme Court doctrine applicable to any other gay-related or marriage-related issues that might come before the Court.

Most predictions about how the Court may rule presume that the Windsor majority will hold together and that the Windsor dissenters would dissent.  That would make Justice Kennedy the senior member of the majority who would likely assign the opinion to himself, as he did in Windsor.  (Now-retired Justice John Paul Stevens was the senior justice in the majority in Romer and Lawrence and assigned those opinions to Justice Kennedy, who returned the favor in Lawrence by prominently citing and quoting from Stevens’ dissenting opinion in Bowers v. Hardwick.)  Nobody is predicting that Justices Scalia, Thomas or Samuel Alito would abandon their dissenting votes in Windsor to join a marriage-equality majority, so they are unlikely to have any role in determining the Court’s doctrinal path in the case.  Indeed, Judge Sutton’s opinion for the 6th Circuit defiantly embraced the “originalism” approach advocated by Justices Scalia and Thomas for construing the 14th Amendment (an approach never endorsed by a majority of the Court), under which a claim for marriage equality would founder on the argument that the mid-19th century framers of that amendment could not possibly have intended or understood that its provisions would require states to license marriages by same sex couples.  Justice Kennedy, whose opinions in Lawrence and Windsor clearly disavowed an originalist approach to interpreting the scope of liberty protected by the due process clause, would never agree to these arguments.   However, there has been speculation that Chief Justice Roberts might join the majority, which would give him control of the opinion assignment.  In that case, one might expect a narrowly-focused opinion intended to keep together a doctrinally diverse majority of the Court, and intended to have as little effect on other cases as possible.

In the wake of the cert. grant, several media commentators tried to find particular significance in the Court’s wording of the questions and division of the argument, suggesting that the majority of the Court might have a plan to rule for the Petitioners on marriage recognition while ruling for the Respondents on the question whether states must license same sex marriages.  Such an approach was floated by 5th Circuit Judge James Graves in his questioning on January 9 during oral arguments of the appeals from Texas, Mississippi and Louisiana, but strongly refuted by counsel for the plaintiffs in those cases.  One suspects that the 5th Circuit may hold off on issuing a ruling now that the Supreme Court has granted cert. to decide these questions, in which case we may never find out whether Judge Graves is committed to that course.  However, in light of the procedural and substantive posture of the cert. petitions coming up from four different states, the Court’s organization of the questions and division of the argument appears more a logical response to a complicated appellate situation than a strategic move to produce a “split the baby” decision.

Rhode Island Supreme Court Rules Catholic Firefighters’ Constitutional Rights Not Abridged by Assignment to Staff Fire Truck in Gay Pride Parade

Posted on: December 31st, 2014 by Art Leonard No Comments

The Rhode Island Supreme Court unanimously ruled on December 19 that two Providence fire fighters with religious objections to homosexuality did not enjoy a First Amendment right to decline an assignment to staff a fire truck participating in the 2001 Pride Parade in their city.  Fabrizio v. Providence, 2014 R.I. LEXIS 158.  The court reversed a decision by Providence County Superior Court Justice Brian Van Couyghen, who had denied a motion for summary judgment filed by two of the defendants, the former mayor and former fire chief of Providence, who had asserted qualified immunity from liability in the case.

According to the opinion for the court by Justice William R. Robinson III, the Providence Fire Department received numerous requests each year for fire trucks to participate in parades and other public events.  In 2001, Fire Chief James Rattigan, apparently in consultation with Mayor Vincent A. Cianci, Jr., decided to respond affirmatively to such a request from the Rhode Island Pride Commission, and they ordered that a fire truck and associated crew from Engine Company 7, the company stationed closest to the parade route, take part.  Two of the assigned firefighters, Theodore J. Fabrizio, Jr., and Stephen J. Deninno, self-described Roman Catholics with moral objections to homosexuality, protested the assignment, but Chief Rattigan directed them to comply and they reluctantly did.  They allege that they had heard that Mayor Cianci had ordered the company’s participation.  After stewing about their experience for a few years, they both filed lawsuits against Cianci, Rattigan, and the City of Providence, asserting various claims of discrimination, infliction of emotional distress, and violation of their constitutional rights.

The fire fighters allege that they were subjected to various kinds of verbal harassment from parade onlookers, received threatening and obscene phone calls after the event, and suffered harassment as well from fellow fire fighters.

The case has gone back and forth between the state and federal courts, and substantial discovery has taken place.  Over the course of the litigation, several of the counts have fallen out of the case.  Cianci and Rattigan, who no longer occupied their official positions, filed a motion for summary judgment on grounds of qualified immunity from claims that they had deprived the plaintiffs of freedom of religion, speech and association in violation of the Rhode Island Constitution.  The trial judge denied their motion, ruling that there needed to be more factual development of the case before he could rule for them as a matter of law.  Because appeal as of right is not available under Rhode Island court practice from a denial of a summary judgment motion, the appellants had to petition the Rhode Island Supreme Court for a writ of certiorari, arguing that they enjoyed qualified immunity and should be dropped from the case as defendants.

The Supreme Court took the position that it was unnecessary to decide on the issue of immunity if the plaintiffs had failed to state a valid constitutional claim against the defendants, and it concluded that this was indeed the case.  “Here, respondents received an order to participate in the parade because their engine company was assigned to the task; it is uncontested that such orders were common, as evidenced by Chief Rattigan’s reference to receiving ‘numerous’ requests from parade organizers for Fire Department participation and as reflected in the standard form for such requests used by the Department. After receiving this work assignment from their employer (the regularity of which has not been questioned), respondents participated in the parade merely as relatively anonymous public servants. We are unaware of any pertinent legal authority in support of the proposition that, in such specific circumstances, employees’ rights are violated if they happen to possess religious objections to the beliefs of the group with which an otherwise legitimate work assignment requires brief interaction,” wrote Justice Robinson.  The court found that the fire fighters’ participation in the parade did not present a case of compelled speech on their part; staffing a fire truck in a parade is not a political statement when it is done by assignment of superiors.  He continued, “The individuals chosen to carry out that assignment cannot be said to have engaged in personal speech by carrying out their work as public servants,” so they had no constitutional claim to raise.

Given that conclusion, there was no occasion to consider whether the mayor and fire chief were entitled to immunity.

The case stands for a broader principle, not specifically articulated by the court but present nonetheless.  Public employees at work are carrying out the directions of their superiors and are not, as such, free actors.  The same principle underlies numerous rulings, from the Supreme Court on down, that public employee speech enjoys no protection when it is “official speech,” that is, speech undertaken as part of the employee’s job.  When a public employee within the scope of his or her employment speaks or engages in conduct that might be seen as expressive and thus falling within the realm of speech, it is officially the speech of the government, not the employee.  The same principle underlies the proposition, now frequently contested, that government clerks cannot rely on their personal religious views or ethical objections to refuse to issue marriage licenses to same-sex couples in jurisdictions where legal bans on same-sex marriage have been struck down.  As such, this Rhode Island Supreme Court decision may stand as an important precedent as religious exceptionalists step forward to challenge the obligation of objecting clerks to issue such licenses or, in jurisdictions where clerks routinely do so, to preside over such marriage ceremonies.

11th Circuit Vacates Child Porn Conviction Finding Jury Might Have Been Biased

Posted on: October 30th, 2014 by Art Leonard No Comments

An 11th Circuit U.S. Court of Appeals panel voted 2-1 in United States v. Bates, 2014 WL 5421846, 2014 U.S. App. LEXIS 20564 (Oct. 27, 2014), to vacate the child pornography conviction of Cameron Dean Bates, who had been convicted by a Southern District of Florida jury and sentenced to 240 months in federal prison for receiving, accessing, distributing, and possessing child pornography.  The majority of the panel concluded that the trial judge erred by denying Bates’ request that potential jurors be questioned about their attitudes concerning homosexuality, and that this was not harmless error in light of the evidence the government proposed to introduce in the case.  Dissenting Judge Robert L. Hinkle, a district court judge from a different district in Florida, contended that the error was harmless because of the overwhelming evidence against Bates, but the majority clearly thought this wasn’t the point; that a criminal defendant is entitled to a fair trial before an impartial jury.

The opinion for the court by Judge Beverly Baldwin Martin does not say how the government got wind of Bates’s activities, but investigators enlisted Bates’s internet service providers to help them trace downloads of child porn to his computer, then obtained a search warrant and did a forensic investigation that yielded not only evidence concerning child pornography but also evidence of Bates’s homosexual activities with other adults and occasional cross-dressing, which the government intended to introduce at trial (and did, over Bates’s objections) in countering Bates’s argument that somebody else was using his laptop to access child porn. Bates sought voir dire about the jurors’ attitudes towards homosexuality, but the obtuse district judge said that he could not see how that had anything to do with the case, and refused the request, just as he overruled Bates’s motions to exclude the evidence going to his homosexual activities.

“In this case,” wrote Martin, “the District Court optimistically declared that our society is beyond prejudice on the basis of a person’s sexual orientation. While we admire the District Court’s optimism, it remains the case that ‘there will be, on virtually every jury, people who would find the lifestyle and sexual preferences of a homosexual or bisexual person offensive’ [citing numerous cases].  We have no doubt that evidence of Mr. Bates’s sexual activity and gender non-conforming conduct had the potential to unfairly prejudice jurors.”

As to the District Court’s puzzlement about how this had anything to do with the case, the court of appeals majority found that Bates’s sexual activities “became ‘inextricably bound up’ with the issues to be resolved at trial. This fact should have been obvious to the District Court given its ruling before voir dire that it did not intend to exclude the sexually explicit images of Mr. Bates found on his computer.  And if it wasn’t obvious to the District Court before jury selection began, it should have become obvious when Mr. Bates requested the Court to explore the potential prejudice before striking jurors.  When the District Court expressed confusion about what homosexuality ‘has to do with this case,’ the government explained that it intended to introduce ‘pictures and items from the defendant’s computer to show that he was engaged in homosexual activity. . . which goes to show that he wouldn’t be sharing his computer with other people.”

The court held that the government failed in its burden to prove harmless error. “Because the District Court refused to ask any questions at all about prejudice on the basis of sexual preferences, we have no way to discern whether the jury was biased against Mr. Bates for that reason,” wrote Judge Martin.  “Because the jurors had no reason to know that issues about same-sex sexual practices would be part of the evidence at trial, they had no reason to offer up prejudices they might harbor on that basis when the District Court posed its general questions.”  The court also expressed lack of confidence that the trial judge’s limiting instructions to the jurors cautioning them about the use of the evidence would have adequately cured the “constitutional deficiencies in this voir dire process.”

“In light of the quantity and the explicit content of the evidence about Mr. Bates’s sexuality paraded before the jury,” wrote Martin, “the risk that latent, undiscovered prejudices may have inflamed is great. Indeed, it seems that the government expected the evidence to have exactly that effect at the time it was introduced.  After asking one of Mr. Bates’s family members whether she knew about his same-sex sexual activities and gender non-conforming behavior, the government followed up with this telling question: ‘And would that have affected your opinion of him?’  We can think of no reason to ask this question but to suggest that, perhaps, it should.”

“If Mr. Bates is to be convicted,” Martin continued, “we must have sufficient assurances that it is done by a fair and impartial jury of his peers. Here, the risk that Mr. Bates was convicted by jurors who cared less about the charged criminal conduct than about his perfectly legal sexual activity, is intolerably high.  His convictions must therefore be vacated, and we remand this case for further proceedings.”  The court also commented that the trial court may have given Bates inadequate time prior to his trial to prepare his defense, as the government added new charges shortly before trial, and concluded, “we hope and expect that the District Court will be mindful of his need for expert assistance and adequate time to prepare for trial.”

Judge Hinkle’s harmless error dissent ended on a defensive note. “One is left asking why, if the evidence of guilt was as clear as I believe it was, the government asked improper, prejudicial questions?  A possible inference is that the government thought a conviction was not certain.  A possible inference is that the government thought at least some jurors were biased and that appealing to that bias would help bring about a conviction.  Why else would the government do it?  I am left in the uncomfortable position of concluding the government was wrong – that it didn’t need the prejudicial impact it improperly pursued.  It is with no enthusiasm that I dissent.”

Federal Court Grants Summary Judgment for Marriage Equality in Two Arizona Cases

Posted on: October 17th, 2014 by Art Leonard No Comments

Granting pending summary judgment motions in two pending marriage equality cases, Senior U.S. District Judge John W. Sedwick ruled on October 16 that Arizona’s constitutional and statutory same-sex marriage bans violated the Equal Protection Clause of the U.S. Constitution. Connolly v. Jeanes, 2:14-cv-00024 JWS (D. Ariz.); Majors v. Horne, 2:14-cv-00518 JWS (D. Ariz.).  Sedwick, who was appointed to the U.S. District Court in Alaska by President George H.W. Bush, hears many Arizona cases by assignment to help out the understaffed district court in that state.

Lambda Legal and pro bono counsel from the law firm Perkins Coie LLP, filed the complaint in Majors on March 13, and had previously secured from Judge Sedwick an emergency order on behalf of one of the co-plaintiffs, whose same-sex spouse had died and who desired to have the death certificate accurately reflect their marriage and his status as a surviving spouse based on their recent California marriage.  In that ruling, signed on September 12, see 2014 WL 4541173, the judge left little doubt that the plaintiffs were likely to prevail, and he ordered the state to provide the relief that had been requested on behalf of Fred McQuire.  However, the 9th Circuit’s subsequent ruling in Latta v. Otter, 2014 WL 4977682 (9th Cir. Oct. 7, 2014), sealed the matter both for this case and for the other pending case.

“When the pending motions were filed,” wrote Sedwick, “their resolution would have required this court to produce a lengthy and detailed opinion. However, in the interim, the Court of Appeals for the Ninth Circuit recently ruled that substantially identical provisions of Nevada and Idaho law that prohibited same-sex marriages are invalid because they deny same-sex couples equal protection of the law, the right to which is guaranteed by the Constitution of the United States. This court is bound by the precedent set by the Court of Appeals for the Ninth Circuit.  For that reason, the plaintiffs are entitled to a declaration that the challenged laws are unconstitutional and a permanent injunction prohibiting their enforcement.”  Sedwick went on to explain that he had considered whether to stay his ruling pending appeal, but decided that “an appeal to the Ninth Circuit would be futile” and that the Supreme Court was likely to “turn a deaf ear on any request for relief from the Ninth Circuit’s decision” in light of its recent denials of certiorari in all pending state appeals of marriage equality rulings.  He might have added, as well, the Court’s refusal to grant Idaho’s emergency stay application seeking to delay same-sex marriages while that state prepared a motion for rehearing en banc of the 9th Circuit’s opinion.

Concluded Sedwick, after declaring the challenged provisions unconstitutional, “It is further ordered that the defendants are hereby ordered to permanently cease enforcement of those provisions of Arizona law declared unconstitutional by this order. Finally, this court declines to stay the effect of this order.”  He denied the defendants’ cross-motion for summary judgment.

The Connolly complaint was filed by a group of Phoenix and Flagstaff attorneys in January, and was later consolidated with Lambda Legal’s case before Judge Sedwick.  Because of pending motions in other cases, the question of how many states allow same-sex marriage and how to number Arizona on the list was a bit perplexing on the day the decision was announced, but it seemed that ultimately there would be about 35 states on the list when the dust settled after follow-up action in the 4th, 9th and 10th Circuit states that had not been directly involved in the cases upon which those circuits had ruled.

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.