New York Law School

Art Leonard Observations

Trump’s Nomination of Neil Gorsuch May Endanger LGBT Rights Claims at the Supreme Court

When Justice Antonin Scalia died last February 13, then-candidate Donald Trump said that if he were elected he would appoint somebody in the mold of Scalia to take his place. This was in the context of Senate Majority Leader Mitch McConnell’s statement, immediately after the announcement of Scalia’s death, that the Republican majority in the Senate would not consider, much less confirm, anyone nominated by President Obama to fill that seat.  As far as the Senate majority was concerned, Obama had gotten his two seats on the Court in his first term, with the appointments of Justices Sonia Sotomayor and Elena Kagan, and was entitled to no more.  They saw the Scalia seat as theirs.

As a practical matter, looking back over the last several decades, presidents have generally gotten to fill at least two seats on the Court, as was the case with Presidents Obama, George W. Bush, Bill Clinton, and George H.W. Bush. Ronald Reagan got to appoint four (but had to nominate six to get there, as two nominations foundered), but Reagan came to office following a president who got to make no Supreme Court appointments, Jimmy Carter, so it is not surprising that he had more openings to fill.  Carter’s predecessor, Gerald Ford, had only one appointment during his partial term after Richard Nixon’s resignation in disgrace, and Richard Nixon had four appointments, but his first one, Warren Burger as Chief Justice, should have gone to Lyndon Johnson, whose attempt to elevate Abe Fortas to Chief Justice on the retirement of Earl Warren misfired, resulting in Warren postponing his retirement until after Nixon took office.  The four Democratic appointees on the current eight-member Court were nominated by Clinton and Obama, and the four Republican appointees were nominated by Reagan, Bush I and Bush II.  At his death, Scalia was the senior member in terms of years of service, having taken the bench in 1985.

The initial reaction to the Gorsuch nomination by some Supreme Court observers was that it essentially restores the ideological balance of the Court that existed prior to Scalia’s death. Setting aside the many cases each term that the Court decides by unanimous or near-unanimous votes, ideological balance comes into play on issues where there is a sharp divide between progressives and liberals, generally Democrats, and conservatives, generally Republicans.  Those are the cases decided 6-3 or 5-4, and since Scalia’s death the Court has deadlocked 4-4 on some significant cases, resulting in leaving lower court decisions in place without creating a new national precedent.

The opening created by Scalia’s death could have been of monumental significance had the Senate given the usual consideration and vote to Court of Appeals Judge Merrick Garland, Obama’s nominee. Garland’s confirmation would have reduced the deeply conservative contingent of the Court to three members, as against a Democratic majority plus Anthony Kennedy, a Reagan appointee who sits at the ideological center of the Court, tipping the balance one way or the other on a case by case basis.  Although Garland’s record on the D.C. Circuit suggests a centrist judge without strong ideological leanings, that would place him somewhere between Kennedy and the incumbent Democratic appointees on the ideological scale.  Most significantly, Garland’s confirmation would have given the Supreme Court a Democratic majority for the first time since the Lyndon Johnson administration in the 1960s.

A group of academics from University of California at Berkeley, Professors Lee Epstein, Andrew D. Martin and Kevin Quinn, released a study on December 14 analyzing how the Court’s ideological disposition would be affected by the appointment of those on Trump’s previously announced lists, which were based on suggestions he received from conservative think-tanks.   They concluded that most of the sitting judges on that list, based on close scrutiny of their judicial records, would have voting patterns similar to Scalia and Samuel Alito, who was appointed by George W. Bush to the seat vacated by Sandra Day O’Connor, and whose appointment was then seen to have moved the Court rightward.  They placed Alito and Scalia close together on the ideological scale, with Scalia slightly more conservative than Alito.  They rated Gorsuch as among the more conservative judges on the list, and situated him on the ideological voting scale between Scalia and Clarence Thomas, but somewhat closer to Scalia.  Thus, on balance, Gorsuch’s addition to the Court would move it to a more conservative disposition than it had before Scalia died, but probably without affecting how cases would have been decided had Gorsuch been sitting in Scalia’s chair for the past several terms of the Court.

Based on his writings on and off the bench, it is clear that Gorsuch is a committed “originalist” more in the mold of Thomas than of Scalia, who in recent years had taken to describing himself as a “faint-hearted originalist” because of his gradual acceptance of some constitutional interpretations that depart from what the founding generation might have thought constitutional provisions meant. Thomas, as shown in his dissenting opinion in Obergefell v. Hodges (the marriage equality case), clings to archaic constructions of constitutional language – such as the use of “liberty” in the due process clause – because they are the meanings that American and English lawyers would have attached to the term in 1791 when the Bill of Rights was adopted.

Gorsuch has not written any opinions for the 10th Circuit on LGBT issues, although he has joined two unpublished opinions written by other judges in cases filed by transgender plaintiffs.

In one, Druley v. Patton, 601 Fed. Appx. 632 (Feb. 3, 2015), an Oklahoma state prisoner was incarcerated in 1986, at which time she had already gone through gender transition but had been housed in a men’s prison.  She complained that over the years there had been frequent interruptions in hormone treatments provided by the prison, as well as failure to maintain the dosages she claimed were appropriate, and that her request to be allowed to wear feminine underwear had been denied.  The case came before a 10th Circuit panel after the district court denied Druley’s request for a preliminary injunction, upon the recommendation of a magistrate judge.  Druley was representing herself, and her complaint had obvious flaws that made it unlikely she would succeed, but the biggest problem she faced was that a 10th Circuit panel had ruled in 1986 that transgender inmates do not have a constitutional right to receive hormone therapy. See Supre v. Ricketts, 792 F.2d 958 (10th Cir. 1986).

Although 1986 is practically the dark ages in terms of federal jurisprudence about gender identity issues, that panel decision has never been overruled, and is thus binding on courts in the 10th Circuit until the issue is decided by the Supreme Court or if an expanded en banc panel of the 10th Circuit decides to overrule it. Thus, it is not surprising that the magistrate recommended dismissing the case.  In addition, Druley had not suggested to the court what the appropriate dosage of hormones would be, asserting that the prison should follow the treatment levels suggested by the World  Professional Association for Transgender Health (WPATH), which has been recognized as authoritative by many federal courts.

Furthermore, as Circuit Judge Jerome Holmes, writing for the panel that included Gorsuch, pointed out, the “Standards of Care” published by WPATH “are intended to provide flexible directions” and leave it up to individual professionals and organized programs to modify as particular cases require. As Druley had presented “no evidence that the [Oklahoma Department of Corrections] defendants failed to consider the WPATH’s flexible guidelines, failed to make an informed judgment as to the hormone treatment level appropriate for her, or otherwise deliberately ignored her serious medical needs,” she could not meet the 8th Amendment standard of showing it likely that she could persuade a court that ODOC was “deliberately indifferent” to her serious medical condition.  She asserted that she received no hormone therapy at all from 1988 until 2011, when ODOC finally began providing therapy, but her quest for injunctive relief was to force them to increase her dosage, not to seek damages for her past deprivation.

Perhaps more significantly, the court also rejected her challenge to the prison’s refusal to let her wear feminine underwear or to be moved to a different building in order to alleviate an asthma condition. These issues would not normally raise constitutional concerns under the 8th Amendment, and in the context of a 14th Amendment equal protection challenge, Druley again confronted the problem of existing 10th Circuit precedents from 2007 and 1995, holding that transgender people are not a “suspect class” and thus can be subjected to unequal treatment if there is a legitimate purpose for the treatment. See Etsitty v. Utah Transit Authority, 502 F.3d 1215 (2007); Brown v. Zavaras, 63 F.3d 967 (1995). In this case, wrote Judge Holmes, “Ms. Druley did not allege any facts suggesting the ODOC defendants’ decision concerning her clothing or housing do not bear a rational relation to a legitimate state purpose.”

Rejection of Druley’s 8th and 14th Amendments claims was premised on prior 10th Circuit precedent that was binding on the court and that could only be changed by Supreme Court or 10th Circuit en banc overruling. It is difficult to read much into this opinion concerning the views of Judge Gorsuch, who merely signed on to this opinion.

In the other case, Gorsuch was sitting as a guest in the U.S. Court of Appeals for the 9th Circuit, which was considering a restroom access dispute involving a transgender instructor and graduate student at an Arizona community college, Kastl v. Maricopa County Community College District, 325 Fed. Appx. 492 (2009).  Rebecca Kastl, a transgender woman who was presenting as female but had not yet had sex reassignment surgery, was banned by the college from using the women’s restroom after other women complained about a “man” in their restroom.  After these complaints the college did not renew her teaching contract. Kastl filed sex discrimination claims under Title IX and Title VII, but the district court in Arizona granted summary judgment to the college.  See 2006 WL 2460636.

The 9th Circuit’s unpublished 2009 decision is a “Memorandum” not attributed to any of the individual judges on the three-judge panel, so it could be by Gorsuch or more likely was drafted by a clerk and then approved by the panel. The opinion acknowledges that a transgender person could pursue a sex discrimination claim under both Title VII and Title IX using a sex-stereotyping theory to come within the scope of the statute.  But that is, of course, only the first step in a discrimination case.  After finding that Kastl’s complaint had stated a prima facie case of gender discrimination, the court found that the college had “satisfied its burden of production under the second stage” of the analysis by presenting evidence that “it banned Kastl from using the women’s restroom for safety reasons.”  At that point, Kastl would have to show that this reason was a pretext for discrimination, but the court found that she “did not put forward sufficient evidence demonstrating that MCCCD was motivated by Kastl’s gender.”  Thus, the college was entitled to summary judgment.  By the same token, the court rejected Kastl’s arguments based on constitutional claims of privacy and protected expression.

The court added a footnote that tended to undermine the reasonableness of its ruling. “We note that the parties do not appear to have considered any type of accommodation that would have permitted Kastl to use a restroom other than those dedicated to men.  After all, Kastl identified and presented full-time as female, and she argued to MCCCD that the men’s restroom was not only inappropriate for but also potentially dangerous to her.”  The footnote suggests some sensitivity to Kastl’s concerns, but not enough to cause the appellate panel to reverse the summary judgment.

This opinion, more than the prison ruling, might say something about Gorsuch’s opinions about discrimination claims by transgender students and employees of public colleges, and is perhaps more salient than the Druley case in figuring out Gorsuch’s views, since the anonymously authored opinion might conceivably be by him and, at least, he voted to adopt it. In this case, by the way, the plaintiff was represented by a Tucson attorney, Andrew Martin Jacobs, and Lambda Legal filed an amicus brief by F. Brian Chase in support of Kastl’s appeal.

The most important LGBT rights decisions by the 10th Circuit in recent years, its two rulings striking down bans on same-sex marriage in Utah and Oklahoma, were decided by three-judge panels that did not include Gorsuch. Although he had already begun serving on the court, Gorsuch was also not on the panel that decided Etsitty v. Utah Transit Authority, a 2007 decision noted above that rejected the argument that gender identity was a suspect classification in the context of a transgender public employee’s equal protection claim.

Although Gorsuch is thus not “on the record” directly on LGBT issues, his overall record suggests that there are good grounds for the LGBT community to oppose his confirmation. He was part of the 10th Circuit en banc panel in the infamous Hobby Lobby case (see Hobby Lobby Stores v. Sebelius, 723 F.3d 1114 (10th Cir. 2013), and contributed his own concurring opinion, 723 F.3d at 1152-1163, containing language suggesting that he would support broad religious exemptions from antidiscrimination laws.

Now pending before the Supreme Court is a petition to review a case from Gorsuch’s home state, Masterpiece Cakeshop v. Colorado Civil Rights Commission, No. 16-111, in which the state courts upheld a ruling that a baker violated the state’s public accommodations law by refusing on religious grounds to bake a wedding cake for a same-sex couple.  If that petition is granted (and the Court recently requested that the record be sent up by the Colorado courts after listing the petition for discussion at its last two conferences, signaling interest in the case) and Gorsuch is quickly confirmed, it could be among the first cases argued after he takes his seat.  (The Court has scheduled arguments through the end of February, and is scheduled to conclude hearing arguments for this term in April.)  Gorsuch’s strong solicitude for religious freedom claims suggests he would be very receptive to the baker’s arguments.

In an essay he published in 2005, Gorsuch expressed opposition to civil rights impact litigation, characterizing it as an attempt by liberal groups to advance their agenda through the courts rather than through the democratic process of legislation. He left no doubt that he would have rejected an attempt to get a court on which he sat to order states to allow same-sex marriages, based on his view that such policy issues should not be decided in the courts.  His views on this are consistent with those of the four Obergefell dissenting justices.  (Chief Justice Roberts famously stated at the end of his dissent that the Court’s decision had “nothing to do with the Constitution.”)

Although Gorsuch also has not ruled in an abortion case, he joined a dissent from the 10th Circuit’s refusal to reconsider a panel ruling that a religiously-affiliated organization with religious objections to contraception methods that it deemed to be a form of abortion could be required under the Affordable Care Act to notify the government of its objections in order that the government arrange for the contraceptive coverage through alternative means. See Little Sisters of the Poor Home for the Aged v. Burwell, 799 F.3d 1315 (10th Cir. 2015).  The dissent endorsed the argument that the organization’s refusal to be complicit in any way with providing coverage – even through such a minimal requirement as notifying the government that the organization would not provide the coverage – placed a substantial burden on the organization in violation of the Federal Religious Freedom Restoration Act.

Gorsuch appears to place such heavy weight on an expansive reading of the Free Exercise Clause that it would not be much of a stretch to suggest that he might be willing to overrule the Court’s decision in Employment Division v. Smith, 494 U.S. 872 (1990, opinion by Scalia), an important case holding that the 1st Amendment does not privilege people to violate neutral state laws of general application based on their religious beliefs.  This ruling led to the enactment of federal RFRA and subsequent state RFRA statutes, which are now at the heart of arguments that people with religious objections to same-sex marriage or gender transition should be excused from complying with anti-discrimination laws.  There is widespread speculation that the Trump Administration may release an Executive Order allowing federal contractors and federal employees to discriminate in providing services and making employment decisions based on religious beliefs.  Such an Order would undoubtedly be challenged in litigation that could end up in the Supreme Court.

Gorsuch was unanimously confirmed by the Senate on a voice vote after his nomination to the 10th Circuit by President Bush. He has all the credentials that suggest an easy confirmation: elite education (Columbia, Oxford, Harvard Law), federal clerkships (including the Supreme Court), practice in a big firm, service as a federal appeals judge, no scandal attached to his name and a reputation as a collegial judge who writes in a clear, conversational style without the kind of hyperbole, venom and sarcasm that Scalia employed in his dissenting opinions.  Gorsuch has been a frequent dissenter on the 10th Circuit, but his dissents are temperate and dispassionate in tone and closely reasoned, although they frequently rest on conservative premises that most progressives would instinctively reject.  He can’t be opposed as technically unqualified, but he can be characterized as far to the right of the judicial “mainstream,” justifying firm opposition to the nomination by those concerned with LGBT rights, reproductive rights, and the ability to live in a civil society that does not countenance disadvantaging people because of the religious beliefs of legislators or employers.  Although Gorsuch’s appointment would not change the Supreme Court line-up from the DOMA and marriage equality cases, it might well affect future LGBT rights disputes at the Court, such as the pending transgender discrimination case under Title IX and religious exemption cases and, of course, it would be a step towards the Republicans’ ultimate goal of cementing an extreme right-wing majority on the nation’s highest bench.

 

Legal Issues | Comment

Arizona Appeals Court Rejects Lesbian Co-Parent’s Bid to Be Recognized as Adoptive Parent Based on Her Spouse’s Adoption When They Were Married

The Court of Appeals of Arizona, Division 1, affirmed a ruling by Maricopa County Superior Court Judge Suzanne E. Cohen, holding that the U.S. Supreme Court’s decision in Obergefell v. Hodges, 135 S. Ct. 2584 (2015), does not require Arizona to retroactively deem a woman to be a legal parent of children adopted by her same-sex spouse at a time when Arizona did not recognize their same-sex marriage or allow second-parent adoptions.  Judge Jon W. Thompson wrote the opinion for the unanimous panel in Doty-Perez v. Doty-Perez, 2016 WL 7477722 (Dec. 29, 2016).

Susan and Tonya began living together in October 2010. Tonya adopted a child, who is not the subject of this appeal, two months later.  Susan and Tonya were legally married in Iowa in July 2011, but at all relevant times for this case were residents of Arizona.  After their marriage, they agreed that Tonya would adopt four special needs children from foster care, intending to raise the children together as co-parents.  If Arizona had allowed for same-sex couples jointly to adopt children, they would have done so, but at the time of the adoptions, Arizona did not recognize their Iowa marriage and prohibited same-sex partner adoptions.

Their relationship later eroded. Susan alleges that on April 8, 2014, as their relationship was ending, she asked Tonya for consent to adopt the children through a second-parent or step-parent adoption, but Tonya refused.  Susan moved out of the marital residence on April 12, 2014, and did not file a petition to adopt the children, which would have been futile without Tonya’s consent.  On October 7, 2014, the 9th Circuit, which covers Arizona, struck down same-sex marriage bans in Latta v. Otter, 771 F.3d 456, and on October 17, 2014, in Majors v. Horne, 14 F. Supp.3d 1313 (D. Ariz.), the federal district court struck down Arizona’s ban and enjoined its enforcement.  The state decided not to appeal the district court’s order.  Susan subsequently filed a “Petition for Dissolution of Non-Covenant Marriage Without Minor Children” and requested in loco parentis visitation rights with the children, on April 14, 2015, subsequently amending her petition to “Marriage WITH Children” and requesting joint legal decision making and parenting time.

Just months later, the U.S. Supreme Court decided Obergefell, holding that same-sex couples had a fundamental due process and equal protection right to marry and to have out-of-state marriages recognized, and Susan followed up in July 2015 with a new “Motion to Find Petitioner a Parent of Minor Children and Memorandum in Support of Amended Petition for Dissolution With Children.”  Judge Cohen denied Susan’s petition to be declared a legal parent of the four children, finding that although she had proven by a preponderance of the evidence that the parties would have jointly adopted the children had Arizona allowed such adoptions, Susan had failed to file a second-parent adoption request after October 17, 2014, when Arizona came under an obligation to recognize the Iowa marriage and afford Susan the rights that a step-parent would have to seek to adopt her spouse’s children, and that Tonya, the legal parent, had refused to consent to a step-parent adoption by Susan, as she had the right to do.

The appellate panel agreed with Tonya’s argument that there was no support in Arizona case law for the concept of de facto parent, thus disposing of one of Susan’s arguments out of hand. (The Maine Supreme Judicial Court issued a contrary opinion on the de facto parent issue just weeks later in Thorndike v. Lisio, 2017 Me. LEXIS 10, 2017 ME 14, 2017 WL 218165 (Jan. 19, 2017).)

“We find the dispositive issue is whether, as a matter of law, if a married person adopts a child, that person’s spouse is also deemed or presumed to be a legal parent, with all the legal rights and obligations attached to that status, merely because the couple intended to adopt together,” wrote Judge Thompson. “We think not.”

In light of Obergefell, Susan could effectively argue that Arizona’s failure to recognize the women’s Iowa marriage or to allow legally-married same-sex couples to adopt at the time Tonya adopted the children was a violation of the 14th Amendment, and the court conceded that point.  “However,” wrote Thompson, “we do not read Obergefell to support Susan’s paramount contention that the right of same-sex couples to marry and have their marriages recognized under the Fourteenth Amendment of the U. S. Constitution requires that states retroactively modify adoptions by individuals in same-sex marriages who would have jointly adopted, if they had been allowed to do so.”

The court held that applying ordinary rules of statutory construction to the Arizona adoption law, Susan was “not entitled to parental status or full legal parental rights under any of the relevant statutory provisions,” because under Arizona’s statute there is no presumption “granting legal parental rights or obligations to a non-adoptive spouse merely because of her marriage to a person who has adopted a child.  To be vested with such rights and to be so beholden,” Thompson continued, “an individual, either separately, or, if married, jointly with another individual, must formally adopt the child.  To be sure, in light of Obergefell, [the statute’s] language that ‘a husband and wife may jointly adopt’ must be interpreted to also mean that ‘a wife and wife’ or ‘husband and husband’ may jointly adopt.  However, the adoption statute’s use of the permissive ‘may’ indicates there is no presumption of parentage for a non-adoptive spouse.  To apply such a presumption would be to ignore an adoptive parent’s spouse’s individual agency to decide whether to directly and deliberately assume the role of a legal parent by taking the steps necessary to establish a legal relationship with the adopted child.”

Thompson pointed out that the statute provides that upon adoption the adopting parent and the child have a legal parent-child relationship, but it does not state that upon adoption the child automatically has such a relationship with the adopting parent’s legal spouse, and that Susan’s attempt to get the court to adopt such a meaning would be contrary to the legislature’s intent in passing the statute. “Additionally,” wrote Thompson, “the clear interpretation of [the statute’s] definition of a legal parent is that, except in the case of biology, the only legal mechanism that may establish legal parenting status and attach the associated rights and obligations is an order of adoption.  Thus, we cannot order legal parent status for Susan, despite the fact that the parties intended to adopt the children together, but did not only because it was legally impermissible at the time, and Tonya later refused to consent to Susan petitioning for adoption of the four children, prior to their divorce and after same-sex adoptions were legal in Arizona.”

Thompson asserted that the court was “without authority to confer legal parent status on Susan when she never actually petitioned the court to acquire that status while she was still married to Tonya.” (Emphasis in original)  “While we empathize with Susan because our holding leaves her without parental rights and obligations for four children she loves, provided and cared for,” concluded Thompson, “the relevant statutes do not support a contrary conclusion.”

Susan is represented by Leslie A.W. Satterlee and Markus W. Risinger of Gregg R. Woodnick PLLC, Phoenix. Tonya is represented by Keith Berkshire and Megan Lankford of Berkshire Law Office PLLC, also in Phoenix.  Susan could seek review from the Arizona Supreme Court.

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Houston Benefits Dispute May Bring Marriage Equality Issue Back to the Supreme Court

Conservatives eager to bring the marriage equality issue back to the U.S. Supreme Court after President Donald J. Trump has had an opportunity to appoint some conservative justices may have found a vehicle to get the issue there in an employee benefits dispute from Houston. On January 20, the Texas Supreme Court announced that it had “withdrawn” its September 2, 2016, order rejecting a petition to review a ruling by the state’s intermediate court of appeals that had implied that the U.S. Supreme Court’s 2015 marriage equality ruling, Obergefell v. Hodges, 135 S. Ct. 2584, might require Houston to provide the same spousal health benefits to same-sex as different-sex spouses of City workers.  Instead, announced the Court, it had reinstated the petition for review and scheduled oral argument for March 1, 2017.  Parker v. Pidgeon, 477 S.W.3d 353 (Tex. 14th Dist. Ct. App., 2015), review denied, sub nom. Pidgeon v. Turner, 2016 WL 4938006 (Texas Supreme Ct., September 2, 2016), No. 16-0688, Order withdrawn, motion for rehearing granted, petition reinstated (Jan. 20, 2017).

The plaintiffs in the Houston benefits case, Houston taxpayers Jack Pidgeon and Larry Hicks, had filed a motion for rehearing with active support from Governor Greg Abbott and Attorney General Ken Paxton, both ardent marriage equality opponents eager to chip away at the marriage equality ruling or even to get it reversed. The Texas Supreme Court’s order denying review had been issued over a fervent dissenting opinion by Justice John Devine, who argued for a limited reading of Obergefell, and the Republican leaders’ amicus brief in support of review channeled Devine’s arguments.

Trump’s nomination of a conservative to fill the seat left vacant when Justice Antonin Scalia died last February would not change the Supreme Court line-up on marriage equality. Obergefell was decided by a 5-4 vote, with Scalia dissenting.  However, it is possible – even likely, if rumors of a possible retirement by Justice Anthony Kennedy at the end of the Court’s 2017-18 Term are accurate – that Trump will get an opportunity to replace the author of the Obergefell decision with a more conservative justice in time for the Court’s 2018-19 Term.  Regardless how the Texas Supreme Court rules on this appeal, its interpretation of the scope of Obergefell could set up a question of federal constitutional law that could be appealed to the U.S. Supreme Court, and once the issue gets to the Court, it is possible that the Obergefell dissenters, strengthened in number by new conservative appointees, could take the opportunity to narrow or even overrule the marriage equality decision.

The Houston dispute dates back to 2001, when Houston voters reacted to a City Council move to adopt same-sex partner benefits by approving a City Charter amendment that rejected city employee health benefits for “persons other than employees, their legal spouses and dependent children.” In 2001 same-sex couples could not legally marry anywhere in the world, so this effectively denied benefits to any and all same-sex partners of City employees.  Texas was also one of many states that put firm bans on same-sex marriage into its constitution and family law statute.

After the U.S. Supreme Court struck down Section 3 of the Defense of Marriage Act in June 2013, Houston Mayor Annise Parker, an openly-lesbian longtime LGBT rights advocate, announced the extension of health benefits to same-sex spouses of City employees. Although same-sex couples could not then marry in Texas, they could go to any of a number of other states to get married, including California and New York and, most conveniently as a matter of geography, Iowa.  Parker and her City Attorney concluded that under the Supreme Court’s reasoning in the DOMA case, United States v. Windsor, 133 S. Ct. 2675, Houston’s city government was obligated to recognize lawfully contracted same-sex marriages of city employees and provide them the same benefits that were accorded to other city employees.  Federal constitutional requirements would override the City Charter ban as well as state law.

Taxpayers Pidgeon and Hicks filed suit in state court, contending that Parker’s action violated the Texas Constitution and statutes, as well as the city charter amendment. They persuaded the trial judge to issue a temporary injunction against the benefits extension while the case was pending.  The City appealed that ruling to the 14th District Court of Appeals, which sat on the appeal as new marriage equality litigation, sparked by the Windsor ruling, went forward in dozens of states including Texas.  A Texas federal district judge ruled in 2014 in the De Leon case that the state’s ban on same-sex marriage was unconstitutional.  The U.S. 5th Circuit Court of Appeals heard the state’s appeal of that ruling in January 2015.  After the U.S. Supreme Court ruled for marriage equality in June 2015, the 5th Circuit issued its decision upholding the Texas district court, 791 F.3d 619, which in turn ordered Texas to allow and recognize same-sex marriages.  This prompted the 14th District Court of Appeals to issue its decision on July 28, 2015.

The Court of Appeals ruling in Parker v. Pidgeon, 477 S.W.3d 353, said, “Because of the substantial change in the law regarding same-sex marriage since the temporary injunction was signed, we reverse the trial court’s temporary injunction and remand for proceedings consistent with Obergefell and De Leon.”  The court did not rule on the merits, merely sending the case back to the trial court to issue a decision “consistent with” the federal marriage equality rulings.  What those rulings may require in terms of city employee benefits is a matter of some dispute.

Pidgeon and Hicks petitioned the Texas Supreme Court to review this court of appeals decision, but the court denied that petition on September 2, 2016, with Justice Devine dissenting. Devine argued that the court should have taken up the case because, in his view, the majority of the court “assumed that because the United States Supreme Court declared couples of the same sex have a fundamental right to marry, the Equal Protection Clause of the Fourteenth Amendment requires cities to offer the same benefits to same-sex spouses of employees as to opposite-sex spouses.  I disagree.” He continued: “Marriage is a fundamental right.  Spousal benefits are not.  Thus, the two issues are distinct, with sharply contrasting standards for review.  Because the court of appeals’ decision blurs these distinctions and threatens constitutional standards long etched in our nation’s jurisprudence, I would grant review.”

Justice Devine was mistaken as to the court of appeals decision. That court did not hold in its July 28 ruling that same-sex spouses of Houston employees are entitled to health benefits from the city.  Rather, it ruled that because of “substantial change in the law” since the temporary injunction was issued, the injunction should be reversed and the case sent back to the trial court for “proceedings consistent with Obergefell and De Leon.”  If the trial court, on reconsideration, concluded that Obergefell and De Leon did not require the City to extend benefits to same-sex spouses of its employees, as Justice Devine argued in his dissent, the trial court could still rule in favor of Pidgeon and Hicks.  All the court of appeals directed the trial judge to do was to rethink the case in light of the new federal rulings.

Devine’s argument rests on a very narrow reading of Obergefell.  He interprets the Supreme Court’s decision to be sharply focused on the right of same-sex couples to marry, resting on the Court’s conclusion that the right to marry is a “fundamental right.”  Thus, a state would have to have a “compelling interest” to deny the right, a test that the Supreme Court found was not met.  However, pointed out Devine, the Supreme Court never explicitly said that the federal constitution requires state and local governments to treat all marriages the same, regardless whether they are same-sex or different-sex marriages.  And, he argued, public employees do not have a fundamental constitutional right to receive health insurance benefits from their employer.  Thus, he contended, the state could decide who gets benefits based on its own policy considerations, which the courts should uphold if they satisfy the relatively undemanding “rationality” test that is used when a fundamental right is not at stake.  As to that, he argued that the state’s interest in procreation by married different-sex couples could justify extending benefits to them but not to same-sex couples.

A contrary argument would note that Justice Kennedy’s opinion in Obergefell specifically listed health insurance as one of the many benefits associated with marriage that contributed towards the conclusion that the right to marry was a fundamental right because of its importance to the welfare of a couple and their children.  Similarly, Justice Kennedy did not consider the “procreation” argument persuasive to justify denying the right to marry to same-sex couples.  On the other hand, the Supreme Court did not say anywhere in its opinion that states are constitutionally required to treat same-sex and different-sex couples exactly the same in every respect, ignoring any factual distinctions between them.  Justice Devine’s argument seems strained, but not totally implausible, especially in the hands of a conservatively-inclined court.

Timing is everything in terms of getting an issue before the Supreme Court, especially if the aim of Texas conservatives and their anti-LGBT allies around the country is to get the issue there after Trump has had two appointments.  Once the Texas Supreme Court hears oral argument on March 1, it could take as long as it likes to issue a ruling on the appeal, and it could be strategic about holding up a ruling until it looks likely that any Supreme Court appeal would be considered after the 2017-18 Term of the Court has concluded in June 2018.  After the Texas Supreme Court rules, the losing party could take up to 90 days to file a petition in the Supreme Court.  If the petition arrives at the Supreme Court after the end of its term, that Court won’t decide whether to grant review until the beginning of its new term in the fall of 2018, and if the petition is granted, argument would not take place for several months, giving the parties time to brief the merits of the case.  If the Texas Supreme Court decides to affirm the court of appeals, it is highly likely that Pidgeon and Hicks, abetted by Abbott and Paxton, will seek Supreme Court review.  If the Texas Supreme Court reverses, the City of Houston will have to decide whether to seek Supreme Court review, or whether to adopt a wait-and-see attitude while the trial court proceeds to a final ruling on the merits of the case.  And the trial court could well decide, upon sober reflection, that Obergefell compels a ruling against Pidgeon and Hicks, which would put them back in the driver’s seat as to the decision to appeal to the Supreme Court.

If a second Trump appointee was confirmed while all of this was playing out, the case would be heard by a bench with a majority of conservative justices appointed by Republican presidents, one by George H.W. Bush (Clarence Thomas), two by George W. Bush (Chief Justice John Roberts and Samuel Alito), and two by Donald Trump. Trump’s appointees would be joining three Republican colleagues who filed or signed dissents in the Windsor and Obergefell cases.  Regardless of how the Petitioner frames the questions posed to the Court, the justices are free to rewrite the question or questions on which they grant review.  If a majority of the newly-constituted Court is eager to revisit Obergefell, they could grant review on the question whether Obergefell was correctly decided.  Based on past history, they could reach that issue if a majority wants to do so without signaling its salience in the Order granting review.

Much of this is conjecture, of course. Justice Devine was a lone voice dissenting from the September 2 order to deny review in this case.  But that order was issued at a time when national pollsters were near unanimous in predicting that Hillary Clinton would be elected and, consequently, would be filling the Scalia vacancy and any others that occurred over the next four years. The political calculus changed dramatically on November 8 when Trump was elected. Even though he has stated that he accepts marriage equality as a “settled issue,” his announced intention to appoint Justices in the image of Scalia and to seek reversal of Roe v. Wade, the Court’s seminal abortion decision from 1973, suggests that he will appoint justices who have a propensity to agree with the Obergefell dissenters that the marriage equality ruling was illegitimate.  (Chief Justice Roberts wrote in his dissent that it had “nothing to do with the Constitution.”)  Although the Court has frequently resisted efforts to get it to reverse highly consequential constitutional decisions, it has occasionally done so, most notably in the LGBT context in its 2003 ruling in Lawrence v. Texas, striking down a state sodomy law and overruling its 1986 decision in Bowers v. Hardwick.

After the election, many LGBT rights organizations issued statements to reassure people that marriage equality would not immediately disappear after Trump took office. That remains true.  A constitutional ruling by the Supreme Court can only be changed by the adoption of a constitutional amendment, which Democrats can easily block in Congress, or overruling by the Supreme Court, which requires that a new case come up to the Court at a time when a majority of the Court is receptive to the overruling argument, which seems to be at least two years off from now.  But these statements, including those by this writer, conceded that in the long run it was possible that Trump’s Supreme Court appointments and new appeals headed to the Supreme Court might come together to endanger marriage equality.  This new development in the Houston benefits case shows one way that could happen.

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Federal Court Lets Transgender Employee Sue Employer for Transition Benefits Denial Under Title VII

Does a transgender employee who seeks coverage under her employer’s benefits plans for breast augmentation surgery have a legal remedy if her claims are denied? U.S. District Judge Sidney A. Fitzwater ruled on January 13 that a transgender woman employed by L-3 Communications Integrated Systems (L-3) may pursue a sex discrimination claim under Title VII of the Civil Rights Act of 1964, having alleged that she was denied such benefits because of her gender, but not under the anti-discrimination provision of the Affordable Care Act (ACA). Baker v. Aetna Life Insurance Company, 2017 U.S. Dist. LEXIS 5665, 2017 WL 131658 (N.D. Tex.).

Judge Fitzwater rejected discrimination claims against the insurance company that provides the coverage and administers the plans on behalf of the employer, finding that the ACA and President Obama’s Executive Order governing gender identity discrimination by federal contractors do not apply to this situation, and that the insurance company cannot be sued under Title VII because it is not the plaintiff’s employer. Judge Fitzwater declined to grant motions for summary judgment by either the employee or by the insurer of her claim that denial of health and short-term disability benefits violates her rights under the terms of the employee benefits plan, setting that claim down for further proceedings.

According to her Complaint filed in the U.S. District Court for the Northern District of Texas in Dallas, Charlize Marie Baker is an employee of L-3 and a participant in the company’s Health Plan and its Short-Term-Disability (STD) Plan, both of which are administered by Aetna Life Insurance Company. She began the process of transitioning in 2011, obtained a legal name change, and had her gender designation changed from male to female on all government-issued documents.  She scheduled breast implant surgery in 2015 after her doctor determined that it was medically necessary to treat her gender dysphoria.

Baker filed claims for coverage of the surgery under the Health Plan and coverage of her recovery period under the STD Plan.  She alleges that the Health Plan denied her claim to cover the surgery, because “the plan does not cover breast implants for individuals with a male birth gender designation who are transitioning to the female gender, although the plan covers individuals with a female birth designation who are transitioning to the male gender and seeking a mastectomy.”  Presumably the mastectomy would be routinely covered because the Health Plan is accustomed to covering mastectomies for female employees when their doctors state that the procedure is medically necessary.   Baker was denied STD benefits because the Plan administrator decided that surgery to treat Gender Dysphoria does not qualify as “treatment of an illness.”

In his January 13 ruling, Judge Fitzwater focused on motions by L-3 and Aetna to dismiss discrimination claims brought under Section 1557 of the ACA, the Employee Retirement Income Security Act (ERISA), and Title VII of the Civil Rights Act of 1964. Section 1557 of the ACA incorporates by reference Title IX of the Education Amendments Act of 1972, which prohibits discrimination “because of sex.”  ERISA has its own non-discrimination provision, but does not specifically ban discrimination “because of sex.”  The ERISA provision broadly prohibits discriminating against an employee to prevent them from getting benefits to which they are entitled under an employee benefit plan.  ERISA provides a vehicle for employees to sue plan administrators for the wrongful denial of benefits to which they are entitled under employee benefit plans.

None of the statutes under which Baker filed her claims explicitly prohibits discrimination because of gender identity. In resisting the motions to dismiss, she relied heavily on a regulation published by the Department of Health and Human Services last spring, providing that Section 1557 of the ACA bans discrimination because of gender identity by insurers and health care providers, tracking interpretations of Title IX by the Department of Education and the Justice Department, which in turn relied on interpretations of Title VII by some federal courts and the Equal Employment Opportunity Commission (EEOC).

Baker also relied on President Obama’s Executive Order 13672, which bans gender identity discrimination by federal contractors. Noting that L-3 is a federal contractor, Baker’s attorneys, Michael J. Hindman and Kasey Cathryn Krummel of Hindman/Bynum PC, urged the court to make “a good faith extension of existing law that the discrimination by Defendants based on her Gender Identity is also discrimination in violation of ERISA in this context and that ERISA must be read to include the prohibition of discrimination based on gender identity.”

“Baker is unable to point to any controlling precedent that recognizes a cause of action under Section 1557 [of the ACA] for discrimination based on gender identity,” wrote the judge. For one thing, he pointed out, the HHS regulation on point was to become effective on January 1, 2017, long after Baker was denied benefits, and thus was not applicable at the time of Aetna’s decision to deny the claims, and furthermore, one of Judge Fitzwater’s colleagues on the Northern District of Texas bench, Judge Reed O’Connor, has issued two rulings rejecting the argument that Title IX, which is the source of the ACA non-discrimination policy regarding sex, should be “construed broadly to protect any person, including transgendered persons, from discrimination.”

On August 21, 2016, Judge O’Connor issued a preliminary injunction against the enforcement of Title IX by the federal government in gender identity cases, and he issued a similar preliminary injunction on December 31, 2016, against the enforcement of the HHS regulation in gender identity cases under the ACA. The government appealed the August 21 ruling to the 5th Circuit Court of Appeals in Houston, and announced it would similarly appeal the December 31 ruling.  Whether those appeals will be pursued or dropped after the change of administration on January 20 is a decision for the new attorney general and secretaries of education and health.  In both of those cases, O’Connor concluded that the plaintiffs were likely to prevail on their claim that Title IX (and by extension the ACA) does not ban gender identity discrimination.

Many federal courts are grappling with the question whether federal laws and regulations banning discrimination “because of sex” should apply to gender identity or sexual orientation discrimination, but there is no consensus yet among the appellate courts. The Supreme Court has a case pending on the gender identity issue under Title IX, but it has yet to be scheduled for argument.  The closest the appeals courts have come are decisions finding that “sex stereotyping” violates Title VII and perhaps by extension other sex discrimination laws, based on a 1989 ruling by the Supreme Court in Price Waterhouse v. Hopkins.  Some courts have used the “sex stereotyping” theory to protect transgender employees in Title VII cases.  However, Judge Fitzwater was correct in observing that as of now there is no “controlling precedent” supporting Baker’s claim that gender identity discrimination, as such, violates Section 1557 of the ACA.  For this judge, a “controlling precedent” would be one coming from the 5th Circuit, which has appellate jurisdiction over federal trial courts in Texas, or the Supreme Court, and expressly addressing the issue.

Baker sought to argue that “the ‘effect’ of E.O. 13672 seems to be little more than to clarify the issue left somewhat ambiguous in Section 1557 that discrimination against transgender persons under this law is prohibited.” She argued that when the ACA was enacted in 2010, some courts had already relied on Price Waterhouse v. Hopkins to find gender identity discrimination covered by Title VII.

Fitzwater found “two fallacies” in this argument. “First,” he wrote, “the Fifth Circuit has not extended Hopkins’ Title VII reasoning to apply to any statute referenced in Section 1557,” and cited Judge O’Connor’s August 21 ruling in support of this point.  “Second, Baker is relying on an Executive Order to clarify what she characterizes as a ‘somewhat ambiguous’ legislative act.”  This was not enough to satisfy Fitzwater, who granted the motions to dismiss the ACA discrimination claim.

Aetna also moved to dismiss Baker’s ERISA claim, contending that ERISA does not ban gender identity discrimination in the administration of employee benefit plans. Fitzwater agreed with Aetna, finding that “as Baker acknowledges, this claim is not currently recognized.  It is for the Congress, not this court, to decide whether to create in ERISA a protection that the statute does not already provide.”  And because the court had already rejected her argument under Section 1557, it would not rely on that ACA provision as a basis for finding a right under ERISA.

Turning finally to the motions to dismiss the Title VII claim, Judge Fitzwater rejected Baker’s argument that Aetna should be liable to suit for sex discrimination under Title VII as an “agent” of L-3 in administering the benefits plans. Fitzwater pointed to 5th Circuit precedents holding that Title VII does not apply in the absence of an employer-employee relationship.  Baker argued that in the EEOC Compliance Manual there is a suggestion that an insurance company administering an employer’s benefit plans is acting as the employer’s agent, “but the EEOC Compliance Manual does not have the force of law,” wrote Fitzwater.  “And this circuit recognizes an agency theory of employer liability only if the alleged agent had authority ‘with respect to employment practices,’” which Baker did not allege.

However, at long last Fitzwater reached the only claim that he refused to dismiss in this opinion: Baker’s allegation that the denial of coverage for her surgery and recovery period under the benefits plans provided by her employer constituted sex discrimination by the employer in violation of Title VII. L-3 argued that Baker had failed to allege that she suffered an adverse employment action based on her gender, but, wrote Fitzwater, “The Court disagrees.”

“Baker plausibly alleges that she was denied employment benefits based on her sex,” he wrote. “She asserts that L-3 ‘engaged in intentional gender discrimination in the terms and conditions of employment by denying her a medically necessary procedure based solely on her gender,’” that the company’s “conduct constitutes a deliberate and intentional violation of Title VII,” and that this conduct “has cause [her] to suffer the loss of pay, benefits, and prestige.”  This was enough, concluded Fitzwater, to allow her Title VII claim against her employer to continue.  Interestingly, his opinion does not explore explicitly whether Title VII applies to gender identity discrimination claims as such, and makes no mention of the EEOC’s 2012 decision to that effect, choosing to treat this as purely a sex discrimination, presumably on the basis that Baker would have been covered for the procedure had she been identified female at birth, so clearly in that sense the denial was because of her sex.

Thus, at this point Baker continues to have a claim under ERISA against Aetna, based on her allegation that Aetna’s refusal to cover her procedure and recovery period violated the terms of the benefits plans, and a sex discrimination claim under Title VII against her employer, based on her allegation that the employer’s benefit plan discriminated against her because of her sex.

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2nd Circuit Upholds Vermont District Court’s Award of Quantum Meruit Damages to Man Who Worked in His Former Same-Sex Partner’s Business Without Salary During Their Relationship

Ruling in Cressy v. Proctor, 2016 U.S. App. LEXIS 21973, 2016 WL 7195814 (Dec. 12, 2016), the 2nd Circuit found that U.S. District Judge William K. Sessions III (D. Vt.) did not abuse his discretion in awarding equitable relief on the theory of quantum meruit to Ronald Cressy, who had worked for many years in his partner Kevin Proctor’s business without formal compensation, and who sought payment after the men’s relationship ended, or in rejecting Proctor’s equitable defenses to the claim, including that Proctor was providing Cressy’s only means of support during the relevant time period.  The court also concluded that Judge Sessions’ award of $173,685 on the claim was not clearly erroneous.  The opinion for the circuit court was by E.D.N.Y. Judge Nicholas G. Garaufis, who sat by designation as part of the 2nd Circuit panel.

Judge Garaufis’s opinion omitted any detailed recitation of facts, but they can be found in Judge Sessions’ opinion, 2015 WL 4665533 (D. Vt., Aug. 6, 2015). Proctor began his business, Synergy Advertising, in Long Beach, California, in 1990 as a sole proprietorship, following a successful career in the advertising business, with one primary client. At its height, the business had five employees, although the staff fluctuated in size.  The business operated at first out of Proctor’s den, then out of an office in his garage.  Before meeting Proctor, Cressy, who was married to a woman, worked for a women’s clothing company as a manager, eventually attaining an annual salary of more than $90,000.  Cressy’s married ended when he came out as gay and his wife filed for divorce in 1993.  During that process, Cressy cashed out his retirement savings and paid off debts, being left with a small amount of cash which he used to pay for some of his personal expenses during his courtship with Proctor, which led to a romantic relationship in 1993, when Cressy moved into Proctor’s house and took paid mental health leave from his employer.  He subsequently quit his job and took time off to recuperate.  At that point, Proctor owned his business, his home (without a mortgage), and a collection of antiques, and had substantial personal savings.

The men’s relationship continued for almost two decades. They considered themselves domestic partners. Proctor supported Cressy financially throughout the relationship.  Cressy began working in Proctor’s business on a part-time basis, but over time his responsibilities increased and he eventually took over the responsibilities of a paid employee who left the business.  The paid employee had been earning $40,000.  After that employee left, a neighbor who was working part-time and Cressy were the only employees aside from Proctor in the business, and eventually the part-timer cut back substantially.  In 1996, Proctor decided to relocate to Vermont.  Proctor claimed that Cressy begged him to take him to Vermont, but the court found that Proctor always intended to take Cressy with him, and involved Cressy in the selection of their new home over an 18 month period during which they traveled to New England together.  Proctor decided to buy a farm in Ryegate, Vermont, using the proceeds from sale of his Long Beach house, personal savings, and profits from his business.  Cressy made no financial contribution to the purchase and his name is not on the deed.  Only Proctor signed the sales documents and was present at closing. The court found Cressy’s testimony that Proctor promised to put Cressy’s name on the deed as not credible.  They moved to the farm over Labor Day weekend in 1998, prior to which they disposed of “a significant amount of Synergy records.”  A home office in the farmhouse contained the remaining business records.  Proctor eventually bought six additional adjoining properties over the next three years, but Cressy was not on the title for any of those purchases and did not contribute to them.  Judge Sessions found that whatever he said to Cressy about the properties beings “ours,” Proctor never intended to give Cressy a half interest in them as Cressy alleged.  All the properties together had an assessed value of nearly a million dollars, and at trial Cressy’s real estate expert testified they were worth $1.5 million.  Cressy helped with farm chores together with Proctor.  Eventually Cressy moved the Synergy records to another building, which subsequently burned down, so at the time of trial there were no business records to confirm testimony about Cressy’s role in the business.

The business continued for some time after the move, becoming mainly an on-line business. Proctor’s father became ill and moved to the property, with Proctor taking primary responsibility for his care and Cressy taking over more responsibility for operating the business, in approximately 2004.  By 2008, Proctor wound down the business and they lived off Proctor’s savings and remaining funds from the business.  By 2012, “these reserves were depleted and Proctor asked Cressy to pay for some household bills out of his own savings.  Shortly after, Cressy left Ryegate and their relationship ended after nineteen years of cohabitation.”  Judge Sessions found that Proctor’s total assets “are worth well over $1 million,” and that “a substantial portion of Proctor’s personal and real property were purchased with Synergy funds.  When Cressy left he had less than $500 in his bank account and no other assets.”

During the course of their relationship, the men never took any steps to formalize their relationship in a civil union, which they could have done in Vermont after the civil union law was enacted. They never registered as domestic partners, as they could have done in California before they moved to Vermont.  They never adopted wills or trusts designating the other as a trustee or beneficiary.  Even after same-sex marriage became legal in Vermont, they did not marry, although Cressy proposed that to Proctor.  “Proctor did make Cressy the beneficiary of a small IRA when Cressy told Proctor that he was feeling insecure about his financial position,” wrote Sessions, “but this was the only time Proctor made any provision for Cressy.”  Since Cressy moved out, Proctor took out a home equity loan to supplement his savings and cover living expenses.  Cressy, who lives with his parents in California, works part-time in a travel agency.

Judge Sessions found that Cressy worked full-time for many years in Proctor’s business without pay, despite Proctor’s claim that Cressy was only part-time and a volunteer who did not expect compensation. In the absence of the destroyed records, this conclusion rested on testimony from family members and former co-workers.  Proctor claimed that Cressy’s work was in exchange for his room and board and expenses all being covered by Proctor for the duration of their relationship.  Although Cressy testified that “he was glad to help Proctor out and it was a ‘natural thing’ for him to help out with his ‘partner’s business,” Sessions found that “by the time he became a full-time employee, however, it was understandable that he expected to receive some benefit for his labor other than room and board,” but that he never received any direct compensation for his work in the business.

Wrote Sessions, “the court is persuaded that, regardless of the reason why, Cressy contributed a significant amount of labor to Synergy without pay and with a reasonable expectation that he was building something with Proctor for their mutual benefit. Even though Cressy was in a precarious financial situation, he never confronted Proctor to insist that he be paid or to disrupt his assumption that the business would ultimately be shared because of Proctor’s ‘very strong personality.’  Cressy, more timid and quiet, tended to avoid confrontation.  While Cressy might have spared himself some surprise and disappointment by confronting Proctor earlier and clarifying whether Proctor had the same expectations, it appears to be consistent with the nature of their relationship for Cressy to defer to Proctor and avoid raising potentially controversial topics.”  The court also found that Proctor’s antique collection, which predated the relationship, continued to grow as they invested Synergy funds and went antiquing together.  Cressy testified that Proctor told him that “these are our retirement.”  They intended to start an antique business and Proctor got a resale license from the state of Vermont so he could acquire antiques without paying sales tax, but the business never got started.

While Judge Sessions found that these facts would not support Cressy’s claim that the men had an implied contract under which he had an ownership share in the business and property and thus was entitled to be compensated on that basis, and that the lack of express promises by Proctor undermined Cressy’s claim under a theory of “promissory estoppel,” he decided that Cressy’s alternative quantum meruit claim was substantiated. Sessions found that “the professional aspect of the relationship is, in this case, entirely severable from the domestic aspects of the relationship.”  He found that Cressy’s household contributions cannot form the basis of equitable claims, because services between living-together partners are not compensable but just part of their relationship.  On the other hand, he found that services in the business should be compensable, and rejected Proctor’s argument that “Cressy’s work should be presumed to have been performed gratuitously.”  Sessions credited Cressy’s testimony that he considered what he was doing in the business as his contribution towards a joint investment in their future.

Sessions found the equities sufficiently in Cressy’s favor to determine that he should be paid for the reasonable value of the services he provided in the business, and decided to calculate those with reference to the salary of the full-time employee in California whose work Cressy had taken over when she left the business, $40,000 a year. On the other hand, he rejected Proctor’s argument that offset against this should be the significant amount he spent on trips, clothes, and other personal expenses for Cressy, finding that “there can be no claim for household services between domestic partners.” Ultimately, he performed a calculation, following the suggestions of Cressy’s economic expert witness, the concluded that “the present value of Cressy’s lost annual savings, including interest, added up to $173,685.  He rejected various equitable defenses by Proctor, including the failure of Cressy ever to demand compensation while he was working in the business and Cressy’s enjoyment of living tax free all those years by not receiving a salary.  Sessions also rejected an argument that Cressy should be estopped from asserting these claims after having left the relationship.  “Cressy is not estopped from bringing his quantum meruit claim now because he had no notice that Proctor did not actually consider him a partner until after their personal relationship ended,” wrote Sessions.  “Neither Cressy nor Proctor sought outside work after the close of Synergy and the domestic life of the parties after 2008 is not relevant to Cressy’s quantum meruit claim,” he continued.  The court also rejected Proctor’s attempt to assert a counterclaim for the value of the room, board, clothing, travel expenses, health insurance, recreational expenses and other sundry goods, services and provisions, as to which Proctor sought restitution, having concluded that these were considered gratuitous within the personal relationship of the two men.

In finding that Sessions did not abuse his discretion in reaching these conclusions, Judge Garaufis wrote, “The court heard conflicting testimony regarding the materiality of Cressy’s labor at Synergy, and, in its role as fact finder at a bench trial, resolved these factual conflicts with its findings that Cressy was a full-time employee with administrative and clerical responsibilities who ran the day-to-day operations of the company. The evidence adduced at trial permitted this interpretation.  It was not clear error for the district court to find that Cressy’s labor rendered a material benefit to Proctor.”  The 2nd Circuit upheld Sessions’ finding that one could separate out the personal and the professional in the relationship, and treat the benefits Cressy enjoyed from Proctor’s support of his “lifestyle” during their relationship as completely apart from the value Proctor derived from Cressy’s work in the business.  “As Proctor’s domestic partner,” wrote Garaufis, “Cressy would have expected to enjoy these sorts of lifestyle benefits, regardless of whether he contributed to Proctor’s business.  By contrast, Cressy’s labor as a full-time employee of Synergy was not within the scope of the normal exchange of domestic benefits; Proctor could not have reasonably expected to enjoy the benefits of Cressy’s labor as a matter of course by virtue of the fact of their relationship alone.”  The court cited to a Vermont Supreme Court case, Harman v. Rogers, 510 A.2d 161 (1986), which reached a similar conclusion regarding an unmarried couple, “one of whom ran the day-to-day operations of a business owned by the other and was not compensated.”  Cressy lives in California and sued Proctor in Vermont under diversity jurisdiction, so Vermont law on these questions is controlling.

The 2nd Circuit panel also saw no “clear error” in Sessions’ calculation of damages, finding that the evidence presented at trial provided a sufficient basis for Sessions’ conclusions. The court also rejected Proctor’s argument that it was “clear error” for Sessions to fail to credit Proctor in this calculation for the value of his support for Cressy’s lifestyle expenses during the relationship.

Cressy was represented in the litigation by Cevin McLaughlin of the Middlebury firm of Langrock, Sperry & Wool LLP. Proctor was represented at trial by Richard Thomas Cassidy of the Burlington firm Hoff Curtis.  Mark Scherzer of New York brought Proctor’s appeal to the 2nd Circuit.

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Federal Judge Issues National Preliminary Injunction against ACA Regulation Banning Gender Identity Discrimination

In an eleventh-hour action, U.S. District Judge Reed O’Connor (N.D. Texas, Wichita Div.) issued a nationwide preliminary injunction on December 31, barring the federal government from enforcing part of a new regulation that was scheduled to go into effect on January 1, 2017, which interpreted the prohibition on discrimination because of sex under the Affordable Care Act to extend to discrimination because of “gender identity” and “termination of pregnancy.” Franciscan Alliance v. Burwell, Civ. Action No. 7:16-cv-00108-O.  Judge O’Connor’s action echoed his earlier issuance, on August 21, 2016, of a nationwide preliminary injunction against the enforcement by the federal government of Title IX of the Education Amendments of 1972 to protect transgender schoolchildren from discrimination, in State of Texas v. United States of America, 2016 WL 4426495 (N.D. Texas, August 21, 2016).  In both opinions, O’Connor rejected the Obama Administration’s position that discrimination because of gender identity or expression is a form of “sex discrimination” that is illegal under federal laws, a question that the U.S. Supreme Court may address if it gets to the merits in G.G. v. Gloucester County School Board, 822 F.3d 709 (4th Cir.), cert. granted, 136 S. Ct. 2442 (No. 16A52)(2016).  Judge O’Connor’s analytical task was “simplified” because the ACA anti-discrimination provision, Section 1557, incorporates by reference the sex discrimination ban in Title IX that was the subject of the judge’s prior preliminary injunction ruling.

The ACA authorizes the Department of Health and Human Services (HHS) to adopt regulations through the procedures of the Administrative Procedure Act (APA) to give detailed substance to the broad terms of the statute. The ACA provides in Section 1557 that health programs or activities receiving federal financial assistance not discriminate on grounds prohibited by four federal statutes.  Title IX, which bans sex discrimination in educational programs receiving federal money, was one of the listed statutes and thus incorporated by reference into the ACA.  (Others deal with discrimination because of race, national origin or disability.)  The Title IX regulations adopted by the Education Department in the 1970s include an express religious exemption provision, so that religiously-controlled educational institutions are exempt from Title IX compliance to the extent that compliance would violate their religious tenets.  After the ACA was enacted in 2010, the Department of Health and Human Services began the APA process, drafting proposed regulations, publishing them for comment, and publishing a final regulation that, with respect to the provisions in dispute in this case, was to go into effect on January 1, 2017.  During the Obama Administration, several different federal agencies responsible for interpreting and enforcing sex discrimination bans have been working through the issue of how these relate to gender identity.  The Equal Employment Opportunity Commission (EEOC) was the first to issue a ruling, in the context of adjudicating a federal job applicant’s complaint, that gender identity discrimination was actionable under Title VII’s sex discrimination ban, but in so doing it was actually following earlier case law, most specifically from the 6th Circuit, which used sex stereotyping analysis first accepted by the Supreme Court in 1989 in Price Waterhouse v. Hopkins, a Title VII case.  The HHS regulation drafters adopted similar reasoning to include “gender identity” in their proposed regulation, and included gender identity in the final Rule published in the federal register on May 18, 2016.  81 Fed. Reg. 31376-31473 (codified at 45 CFR Sec. 92).  By the time of that publication, the Education Department had taken the position that Title IX bans gender identity discrimination, in the context of a restroom access dispute in the %Gloucester County School District% case and a subsequent “Dear Colleague” letter published on its website and distributed to school districts nationwide.  However, HHS did not include in its proposed or final rule the religious exemption language from Title IX.

Several states and some religious health care providers joined together to challenge the new HHS Rule, not in its entirety but in a focused attack on the inclusion of “gender identity” and “termination of pregnancy” in the non-discrimination provisions. Blatantly forum shopping, they filed their suit in the U.S. District Court in Wichita Falls, an outpost of the Northern District of Texas where Judge O’Connor, the only judge assigned to that courthouse, sits a few days every month. (O’Connor’s chambers are in Fort Worth, the location of his home courtroom.)  Filing in a major city would subject the plaintiffs to a random assignment of a judge; filing in Wichita Falls guaranteed that their case would be heard by Judge O’Connor. O’Connor, who was appointed by President George W. Bush, has a propensity to issue nationwide injunctions against regulatory actions of the Obama Administration on grounds that they exceed executive branch authority.  His August 21 preliminary injunction in the Title IX case was not his first.  There is no logical reason why this case should have been filed in the Wichita Falls court, but plaintiffs can claim proper venue there by pointing to local members of the co-plaintiff Christian Medical & Dental Association (CMDA), a national organization, who may reside within the geographical confines of the Wichita Falls court, or to local Texas state agencies whose operation in that area would be affected.  (The court does not engage in a venue analysis, despite the obvious forum-shopping.)  Other private plaintiffs are Franciscan Alliance, Inc. and its wholly owned entity Specialty Physicians of Illinois LLC.  The public plaintiffs are the states of Texas, Wisconsin, Nebraska, Kansas, Louisiana, Arizona, Kentucky and Mississippi.  The heavy hand of Texas Attorney General Ken Paxton looms over the litigation, since Paxton has said, in effect, that his job is to sue the federal government every day on behalf of the right of Texas to operate free of federal regulatory constraints. Plaintiffs moved for partial summary judgment or, in the alternative, a preliminary injunction, on October 21, 2016, and the court agreed to expedite briefing and hearing so as to be able to rule, at least on the preliminary injunction, before the Rule could go into effect on January 1.

There is a basic argument between the parties as to the requirements imposed by the Rule. The plaintiffs argue that under the rule they would be required to provide gender transition surgery and abortions or suffer liability to patients and potential loss of federal funding eligibility.  They claim that this would violate their rights under the Religious Freedom Restoration Act, and that the government’s interpretation of the ban on sex discrimination to cover “gender identity” and “termination of pregnancy” went beyond regulatory authority.  HHS argues that the rule does not compel either procedure in every case, merely banning discrimination on these bases.  Thus, for example, it could be argued, if a health care provider/institution performs mastectomies, it may not take the position that it will perform a mastectomy for a woman as a treatment for breast cancer but will not perform a mastectomy for a transgender man as part of his transition process, as this would be sex discrimination. Both women and transgender men are entitled to mastectomies.  Similar arguments are made for a variety of the component parts of procedures, including, for example, hormone therapy, sterilization procedures and the like.  A woman suffering an estrogen deficiency can receive hormone therapy, and so can a transgender woman; depriving the transgender woman of estrogen therapy because she was identified male at birth is sex discrimination.  In effect, argue the private plaintiffs, the non-discrimination requirement would inevitably require them to perform procedures that violate their religious views, and, argue the public plaintiffs, would require them to violate various state laws and regulations, such as banning the termination of pregnancies in state facilities or the use of state Medicaid funds for gender transition or pregnancy termination procedures.  Judge O’Connor agreed with the private plaintiffs that however the dispute over interpretation is resolved, there is a likelihood that their exercise of religion would be substantially burdened.

A portion of the decision, not detailed here, goes through the analysis of jurisdiction, ripeness and administrative exhaustion, finding that none of those doctrines would require a finding against the court’s jurisdiction to grant the requested relief on this motion. Proceeding to the merits, Judge O’Connor provided a detailed discussion of the tests for issuing a preliminary injunction.

First, as to likelihood of success on the merits, he found that Title IX does not on its face ban discrimination because of “gender identity” or “termination of pregnancy.” Most of the discussion focuses on the “gender identity” issue, and channels the discussion accompanying his August 21 preliminary injunction against Title IX enforcement in gender identity cases.  The discussion regarding the abortion issue focuses on the failure of HHS to incorporate in its new regulation the religious and abortion exemptions in existing Title IX regulations, arguing that Congress’s wording of the Section 1557 non-discrimination provision led to the conclusion that such incorporation was intended by Congress.

“The precise question at issue in this case is: What constitutes Title IX sex discrimination?” he wrote. “The text of Section 1557 is neither silent nor ambiguous as to its interpretation of sex discrimination.  Section 1557 clearly adopted Title IX’s existing legal structure for prohibited sex discrimination.  42 U.S.C. sec. 18116(a).  For the reasons set out more fully below, this Court has previously concluded: the meaning of sex in Title IX unambiguously refers to ‘the biological and anatomical differences between male and female students as determined at their birth.’  Texas v. United States, No. 7:16-cv-00054, 2016 WL 4426495, at *14 (N.D. Tex. Aug. 21, 2016).”  Judge O’Connor reinforced this reference with a citation to the federal district court ruling in %Johnston v. Univ. of Pittsburgh of Com. Sys. of Higher Educ.%, 97 F. Supp. 3d 657, 674 (W.D. Pa. 2015), %appeal dismissed% (Mar. 30, 2016), rejecting a Title IX gender identity discrimination claim by a transgender college student with restroom access issues, but omits reference at this point to the contrary ruling the 4th Circuit in the Gloucester County case.  Because he finds Title IX unambiguous on this point, he concludes that the HHS Rule is not entitled to Chevron deference that would normally be accorded a regulation adopted under the APA, and proceeds to apply his own interpretation of the statute, in which he finds Congress’s “binary definition of sex” to be shown by references in the statute to “students of one sex,” “both sexes,” and “students of the other sex.”  He also appeals to “ordinary meaning,” to the failure of Congress to spell out any intent to cover “gender identity,” and to the fact that as of the time the ACA was enacted, federal agencies had not yet begun to treat “gender identity” discrimination as cognizable under sex discrimination statutes.

He wrote that “even if, as Defendants argue, the definition of sex discrimination was determined in 2010 when the ACA incorporated Title IX’s prohibition of sex discrimination, the Court is not persuaded it was passed with the Rule’s expansive scope in mind because: (1) Congress knew how but did not use language indicating as much, and (2) in 2010 no federal court or agency had interpreted Title IX sex discrimination to include gender identity.” (To this point he quoted a Washington Post article from 2015 stating that the new HHS Rule “for the first time includes bans on gender identity discrimination as a form of sexual discrimination, language that advocacy groups have pushed for and immediately hailed as groundbreaking.”)  And, of course, he notes that before the ACA was passed and “for more than forty years after the passage of Title IX in 1972, no federal court or agency had concluded sex should be defined to include gender identity” in a Title IX case.  In a footnote, he rejected the government’s attempt to bolster its case by reference to Price Waterhouse, pointing out that it was Title IX, not Title VII, which was incorporated by reference into the ACA.

As to the failure of the Rule to incorporate Title IX’s religious exemption language, he wrote, “The text of Section 1557 prohibits discrimination ‘on the ground prohibited under Title IX of the Education Amendments Act of 1972 (20 U.S.C. 1681 et seq.).’ . . . That Congress included the signal ‘et seq.’, which means ‘and the following,’ after the citation to Title IX can only mean Congress intended to incorporate the entire statutory structure, including the abortion and religious exemptions.  Title IX prohibits discrimination on the basis of sex, but exempts from this prohibition entities controlled by religious organizations when the proscription would be inconsistent with religious tenets.  20 U.S.C. sec. 1681(a)(3).  Title IX also categorically exempts any application that would require a covered entity to provide abortion or abortion-related services. 20 U.S.C. sec. 1688.  Therefore, a religious organization refusing to act inconsistent with its religious tenets on the basis of sex does not discriminate on the ground prohibited by Title IX,” and any attempt by HHS to impose the non-discrimination requirement without including the religious exemption violates Congressional intent.  O’Connor bolstered this point by invoking the Supreme Court’s Hobby Lobby decision, finding that the Rule “places substantial pressure on Plaintiffs to abstain from religious exercise” by forcing them to provide services contrary to their religious tenets, and that the government’s desire to expand access to “transition and abortion procedures,” even if deemed a “compelling interest” for purposes of the federal Religious Freedom Restoration Act, was not the least restrictive alternative for providing such access, and thus failed under Hobby Lobby.  Taking his cue from Justice Samuel Alito’s opinion in that case, O’Connor pointed out that the government could offer to pay for transition and abortion services to be provided by those who did not have religious objections to them in order to avoid burdening the Plaintiff’s religious rights.

In another point worth noting, O’Connor cited to an HHS study showing that the medical community is not unanimous on the value and necessity of performing transition procedures, particularly on minors, undermining the “compelling interest” that the government must show under RFRA to justify substantially burdening health care providers with sincere religious objections to performing such procedures.

Having concluded that the plaintiffs were likely to succeed on the merits of their attack, O’Connor found that they easily satisfied the other requirements for preliminary injunctive relief, noting in particular that an ongoing investigation of the state of Texas’s practices made the potential of harm to the Plaintiffs more than hypothetical, as did the looming requirement for the private Plaintiffs to change the range of services they offer or risk loss of federal funding. More significantly, as to the scope of the injunction, he cited authority that “the scope of injunctive relief is dictated by the extent of the violation established, not by the geographical extent of the plaintiff class,” and that “a nationwide injunction is appropriate when a party brings a facial challenge to agency action under the APA.”  In this case, he pointed out, “CMDA’s membership extends across the country and the Rule applies broadly to ‘almost all licensed physicians,’” quoting the HHS description published in the Federal Register.  “Accordingly, the Rule’s harm is felt by healthcare providers and states across the country, including all of CMDA’s members, and the Court finds a nationwide injunction appropriate.”  Noting a severability provision in the Rule, he observed that the injunction only applied to the inclusion of “gender identity” and “termination of pregnancy” under the definition of sex discrimination, and did not bar enforcement of any other part of the Rule.  A preliminary injunction stays in effect until the court issues a ruling on the merits, unless it is reversed on appeal.  As of December 31, the Obama Administration had barely three weeks left in office, to be succeeded by an administration much less likely to defend the Rule, so while this is merely preliminary relief for the Plaintiffs, it signals a major and probably long-term setback to efforts by transgender people to obtain non-discriminatory health care, including coverage for medically-necessary transition procedures.

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Missouri Appeals Court Reverses Conviction of HIV-Infected College Wrestler

The Missouri Eastern District Court of Appeals has reversed the jury conviction of Michael L. Johnson, an HIV-positive African-American man, on felony charges of recklessly infecting another with HIV and exposing others to HIV, for which he was sentenced to 30 years in prison. The appeals court found in a December 20 ruling that the prosecution had violated court discovery rules by ambushing Johnson at trial with selective excerpts from recordings of telephone conversations he had in jail, thus depriving Johnson of a fair trial.  The St. Charles County prosecutor now has to decide whether to retry Johnson, who was convicted in May 2015 for events that occurred in 2013.  State of Missouri v. Johnson, No. ED103217.

Johnson, a championship high school wrestler from Indianapolis, moved to St. Charles, Missouri, in 2012 to attend Lindenwood University, where he had had been recruited for the wrestling team. On January 7, 2013, he went to the student clinic complaining of perianal warts and seeking STD testing.  He tested positive for gonorrhea and HIV.

A few weeks later, Johnson had unprotected oral and anal sex with another Lindenwood student whom he had met through social media. That student testified at the trial that Johnson had not disclosed he was HIV-positive.  The student experienced symptoms a few weeks later, went to a hospital emergency room, and was diagnosed with gonorrhea and HIV.  A follow-up HIV test led doctors to inform the student that his HIV infection was recent.  The student testified that before having sex with Johnson he had not had sex with anyone else for a year, so Johnson was the only person who could have infected him.

The student contacted Johnson and they met in Johnson’s dorm room, where the student told Johnson he was HIV-positive, and they had sex again. The student maintains that Johnson still did not disclose that he was HIV positive.  When the student noticed that Johnson was still using social networking and “dating internet applications” but was not mentioning in his profile that he was HIV-positive, the student contacted the St. Charles Police Department, whose investigation turned up five other people who had sex with Johnson, all of whom claimed Johnson had not disclosed to them that he was HIV positive.

In the subsequent jury trial, Johnson admitted that he learned of his HIV diagnosis on January 7, 2013, so the critical issue at trial was whether he disclosed his HIV status to his sexual partners. Johnson testified that he had informed each of them before engaging in sex, except for one man with whom he had sex only in November 2012, before he learned of his infection.  Prosecutors impeached Johnson’s testimony by playing excerpts from the jail telephone recordings, in which Johnson had stated that he was worried that people would not want to be his friend if they learned about his HIV status, that he was “pretty sure” he had disclosed his HIV status to his sexual partners, and that he was “unsure” about how to tell people about his status.  This summary in the court’s opinion of the prejudicial statements extracted from more than 24 hours of telephone calls does not indicate who the other parties were on the calls, and whether all three statements came from the same call.

Johnson’s lawyer had objected to the introduction of these edited recordings, which were only revealed to her the Monday morning of the trial, May 11, 2015. The prosecutor claimed that the information had been sent to the lawyer’s office the previous Friday, but that was a holiday and the law office was closed.  A year and a half earlier, on November 26, 2013, the defense had filed a request for discovery as authorized by court rules, asking for “any written or recorded statements and the substance of any oral statements made by the defendant” that was relevant to the charges against him.  The court rule says that such requests shall be answered within ten days after the prosecutor receives the request, and imposes an ongoing duty on the prosecutor to supplement its response if it acquires new relevant information, and the disclosure duty extends beyond information known to the prosecutor to include any information that might be obtained through reasonable inquiry.

It is, of course, common practice that jails record prisoner calls and that prosecutors can get access to the recordings. In this case, there were more than 24 hours of recordings of Johnson’s phone calls made while he was in jail, two calls from as far back as October 17, 2013, just weeks before the defense filed its discovery request, and one call from just a few days before the request.  Yet the state waited a year and a half to turn this information over, and even then playing games to avoid defense counsel learning of them until the morning of the trial by sending them over on a holiday before a weekend.  Defense counsel objected, but the trial judge reserved ruling on the objection, since the evidence would not be presented until later in the trial, and then the judge overruled the objection, stating that the defense had a few days in possession of the recordings and so was not prejudiced.

The jury convicted Johnson on every count except the charge involving the man with whom he had sex in November 2012 – an instance of classic overcharging by the prosecution, since Johnson did not know he was HIV positive at the time. He was sentenced to 30 years for infecting the other student, 14 years for recklessly exposing another person, and 5-1/2 years on each of three charges of “attempting” to expose other people, with the sentences to run concurrently.

Johnson raised two issues on appeal. First, he challenged the fairness of his trial because of the state’s “ambush” tactics with the recording.  Second, he claimed that the prison sentence was “grossly disproportionate” to the offenses, in violation of the 8th Amendment ban on cruel and unusual punishment.  Because the appeals court agreed with his first issue, it did not rule on the 8th Amendment claim.

The State candidly admitted on the record before the appeals court that it “intentionally withheld the recordings from the defense to gain a strategic advance,” wrote Presiding Judge James M. Dowd for the appellate panel. “The State explained: ‘If we disclose to the defense they’ll tell their client.  And I’m not impugning anyone’s integrity, I’d do the same thing: Hey, they’re listening to your conversations, shut up.  So we don’t disclose them until towards the end.”

Judge Dowd pointed out that the state’s strategy was exactly what the discovery rule was intended to avoid. “We find that this discovery violation likely resulted in Johnson’s genuine surprise at learning on the first day of trial that the State had prepared to use the untimely-disclosed recordings against him, since at no earlier point had Johnson learned that the State [that is, the prosecutors]—and not just the county jail – had the recordings in its possession, nor had he learned that the State planned to use them at trial.”

The court rejected the State’s argument that because everybody knows that their prison phone calls are being recorded, there is no fundamental unfairness in failing to disclose them before trial. Judge Dowd pointed out that there were prior Missouri court rulings directly addressing this point.  It is not enough to show that the defendant knows the jail is recording the phone conversations. The relevant knowledge would be that the prosecution has the recordings and is planning to use them at trial, with an opportunity for the defense to learn what recordings were going to be used.  Furthermore, the court rejected the trial judge’s conclusion that the problem was cured because a few days went by before the recordings were offered in evidence.

“Johnson was forced to make critical strategic decisions – such as whether to seek to avoid trial by pursuing a plea bargain, whether to waive his right to silence and testify, and what particular defense to raise – without being timely furnished highly prejudicial, properly-requested discovery,” wrote Dowd. “The State had more than a year and half to prepare its case with the benefit of its chosen excerpts of Johnson’s jail phone recordings but failed, in violation of Rule 25.03, to disclose to Johnson before the morning of the first day of the trial any part of the more than 24 hours of recordings. Even as an inadvertent mistake, such untimely disclosure would be suspect under Missouri law, but here the State admitted that it purposely withheld the recordings from Johnson so as not to tip off the defense counsel that her client was being recorded making incriminating statements.”

Dowd said that the “pretty sure” statement was “profoundly prejudicial” when it was used out of context to impeach Johnson’s testimony that he had disclosed his HIV status to his sexual partners. Thus, concluded Dowd, the state’s tactic had likely “prevented Johnson from preparing a meaningful defense – i.e., one that was not sabotaged by the State’s deliberate untimely disclosure of highly prejudicial evidence – and that timely disclosure of the statement would have affected the result of Johnson’s trial.”

Dowd also rejected the argument that Johnson’s counsel had enough time to deal with the recordings during the first three days of trial before Johnson’s testimony. “The solution to the State’s blatant discovery violation should not be to put the defense at an additional disadvantage by forcing the defense to spend its time during trial analyzing improperly-withheld discovery instead of preparing for the next witness, next day of trial, or the other work-intensive matters a trial lawyer must deal with,” wrote Dowd.  This violation, he said, “is inexcusable, should not be repeated, and supports a finding of fundamental unfairness in this case,” calling it a “bad faith strategy” that “clearly was intended to disadvantage Johnson.”  In other words, they were out to get him!

Thus, it was an abuse of discretion for the trial judge to let the State use this evidence, and the conviction was reversed and sent back to the county Circuit Court for a new trial. It is up to the prosecutor to decide whether to go forward.  Since Johnson has served but a small fraction of the 30 year sentence, there may be local pressure to have a new trial.  In light of the evidence, which would be admissible the second time around now that it has been disclosed, it is possible that Johnson will seek to strike a plea bargain for a shorter sentence rather than risk another trial.

In the meantime, this case, which has attracted lots of attention, shows that Missouri’s HIV-exposure law requires reconsideration, especially in light of the developments in medical treatment that have changed the calculus of risk in terms of HIV transmission and the consequences of infection from what they were when the law was passed in 1988. Laws on HIV exposure passed before these medical developments are now inadequately sensitive to evidence that people on PREP may be infected without presenting a risk of transmission, and of course the mortality and morbidity issues have changed drastically since protease inhibitors became part of the standard treatment regimen for HIV in the mid-1990s.

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Louisiana Court Finds Governor Edwards’ Civil Rights Executive Order Unconstitutional

A trial judge in Louisiana ruled on December 14 that an Executive Order by Governor John Bel Edwards, forbidding anti-LGBT discrimination in the executive branch of the state government and by state contractors, violates the Louisiana constitution and laws. 19th Judicial District Judge Todd W. Hernandez, in the Parish of East Baton Rouge, said that this Order violates the separation of powers established by the Louisiana Constitution, is outside the governor’s authority to “faithfully execute the laws,” and should be enjoined.  Governor Edwards promptly announced that he would appeal this ruling.  Louisiana Department of Justice v. Edwards, No. 652,283 (19th Judicial District).

Hernandez’s decision came in a lawsuit filed by the Louisiana Department of Justice and Attorney General Jeff Landry, who challenged the authority of the governor to extend anti-discrimination rules to categories not already covered by state statutes. At the same-time, Hernandez ruled on a countersuit filed by the governor as part of his response to Landry’s lawsuit, in which Gov. Edwards challenged Landry’s refusal to approve attorneys who were being retained by executive branch agencies to represent them in litigation.

Landry argued that JBE 16-11, the order signed by Edwards shortly after he took office early in 2016, inappropriately creates “a newly created protected class of persons not recognized by current law.” He also contended that the restrictions placed on state contractors violated the Commerce Clause of the U.S. Constitution and “certain First Amendment rights and privacy interest rights established by the Louisiana and United States Constitutions,” according to Judge Hernandez.  Landry’s reference to “class of persons” mischaracterizes the Executive Order, which does not create protected classes, but rather, in the general approach of civil rights laws, forbids discrimination because of particular characteristics, in this case sexual orientation and gender identity.  Thus, everybody is protected from discrimination because of those characteristics, including non-gay people and cisgender people.

Hernandez declared that the Executive Order “constitutes an unlawful ultra-vires act because, regardless of the defendant’s intent, the effect of its adoption and implementation, creates new and/or expands upon existing Louisiana law as opposed to directing the faithful execution of the existing laws of this state pursuant to the authority granted unto [sic] the office of the Governor to issue executive orders.” Hernandez proclaimed that the governor was improperly exercising legislative authority, which is “an unlawful usurp [sic] of the constitutional authority vested only in the legislative branch of the government.”

Judge Hernandez did not cite any prior Louisiana court decisions to support his ruling. One suspects the state courts have never before addressed this question, or at least not in a way that would support the court’s ruling.  Instead, the judge embraced his literalistic reading of the state constitution, which “declares the office of the Governor as the ‘Chief Executive Officer’ of the State of Louisiana and he/she shall see that the laws of this state are faithfully executed,” and goes on to cite a statute that says, according to the judge, that “the sole purpose for the issuance of an executive order is to provide the office of the Governor with a mechanism to ‘faithfully execute the laws of the State of Louisiana.’”

Hernandez was not accurately quoting the statute, LRS 49:215, which says: “The authority of the governor to see that the laws are faithfully executed by issuing executive orders is recognized.” This is not, on its face, restricted to the laws of Louisiana, and the oath of office of the governor, together with all other state elected officials, requires them to support both federal and state laws, including the federal and state constitutions, both of which provide “equal protection of the laws” to all people in the state.

The U.S. Supreme Court established in 1996 in Romer v. Evans that anti-gay discrimination violates “equal protection of the laws” under the 14th Amendment to the U.S. Constitution, unless the state has a rational basis to treat people differently because of their sexual orientation. Thus, an Executive Order banning anti-gay discrimination in the executive branch of the state government is consistent with the governor’s obligation to see that the laws are faithfully executed, although there might be some controversy about extending this to “gender identity” in the absence of U.S. Supreme Court authority. The 11th Circuit U.S. Court of Appeals, whose jurisdiction covers Alabama, Florida and Georgia, is so far the only federal appeals court that has recognized a constitutional equal protection claim by a transgender public employee, but the logic of Romer v. Evans would surely cover such a claim as well.

Hernandez found that the Executive Order “extends beyond the lawful parameters of executive order authority and its adoption and implementation is found to be either a creation of new law and/or an expansion of existing law. In either case,” he continued, “this is a violation of the separation of powers doctrine of the Louisiana Constitution and is an infringement upon the constitutional authority vested solely upon the Legislature of the State of Louisiana.”

However, Hernandez rejected without explanation Landry’s claim that other federal or state constitutional provisions were violated by the executive order.

Turning to the governor’s counterclaim, Hernandez found that Louisiana statutes specifically authorize the attorney general to approve or disapprove lawyers whose engagement is sought by executive branch agencies, but that once those lawyers have been engaged, the attorney general has no supervisory authority over them and cannot dictate what positions they take in their representation.

As to the governor’s request for a ruling that the office of the governor is superior to the office of the attorney general when a dispute about legal policy arises, Hernandez declined to rule, finding that without the presentation of an actual dispute between the two officers, the question was not “ripe” for judicial consideration. “There is no evidence of a justiciable controversy concerning which constitutionally created officer of this state should prevail if a dispute were to arise between them relating to a legal matter concerning the legal interest of the State of Louisiana,” he wrote.  To express a view in the abstract would be akin to rendering an “advisory opinion” beyond the authority of the court.

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Federal Court Upholds Dismissal of Deputy Clerk Who Refused to Process Same-Sex Marriage License

A deputy clerk in Harrison County, Indiana, lost her Title VII challenge to her discharge on December 15, when U.S. District Judge Richard L. Young ruled that she was not privileged by her religious beliefs to refuse to process a marriage license application from a same-sex couple. Incidentally, it was Judge Young who ruled in 2014 that Indiana’s ban on same-sex marriage was unconstitutional.  Summers v. Whitis, 2016 WL 7242483, 2016 U.S. Dist. LEXIS 173222 (S.D. Indiana, Dec. 15, 2016).

 

Linda Summers worked as a deputy clerk in the Harrison County Clerk’s office, where her elected boss was County Clerk Sally Whitis. Part of Summers’ duties was to process marriage licenses.  This consists of pulling up on the office computer the application that the couple would already have filled out on-line before coming to the Clerk’s Office, verifying that it was complete, collecting a fee, and then printing out the license and recording it in a book.  She did not perform marriages or actually sign licenses.

 

The U.S. Court of Appeals for the 7th Circuit in Chicago affirmed Judge Young’s ruling striking down the Indiana ban on September 4, 2014.  His injunction was “on hold” while the state sought Supreme Court review.  On October 6, 2014, the Supreme Court denied the state’s petition, making the 7th Circuit’s ruling final.  “On that same day,” wrote Judge Young, “the Office of the Indiana Attorney General issued a memorandum to all elected Clerks,” informing them that as soon as the 7th Circuit issued its final mandate to the state, Judge Young’s injunction would go into effect.  “As soon as that mandate is issued – and it could be as early as today – county clerks will be prohibited from denying marriage licenses to same sex couples so long as all other marriage license requirements are met,” said the memorandum.  “It would be advisable to start making necessary preparations to process marriage license applications and issue licenses accordingly.”

 

Whitis, who was on vacation when this happened, followed up on October 22, sending an email to all her employees, including Summers, informing them that “the Supreme Court has ordered Indiana to proceed with gay marriages. Therefore, it is our duty in the Clerk’s Office to process those applications. The process in Incite2 [the office software] has been modified to accommodate these filings.  Even though it may be against your personal beliefs, we are required by state law to process their applications.  We are only doing the paperwork and not performing their ceremony.  I expect everyone to comply.  Thanks.”

 

When a same-sex couple came to the office on December 8, 2014, to request their marriage license from Summers, she didn’t notice at first that both were women. Wrote Judge Young, “She went to her computer, opened the Incite system, and pulled up the couple’s application.  She then realized that the individuals requesting the marriage license were both the same sex.  Summers hesitated, unsure what to do.  After a moment, she decided that she could not process the application and motioned for Whitis to come and assist.”

 

Summers testified: “I told her this is a same-sex marriage license, and I can’t do it. She said, ‘You are not marrying them; you’re just providing them with the license.’  And I said, ‘I don’t feel that way.’  And I said, ‘I can’t do it.’  And she says, you’re required to do it, you have to do it – some of that order.  And I said, ‘I’m sorry.  I can’t do it.’  And she – that’s when she jerked the paper out of my hand and she took it and sat down at her desk and took the couple.’”  Whitis processed the license herself and told told Summers that such a refusal “could not happen again, because it was her job to do those.”

 

After reviewing the County Personnel Policies, which provide that insubordination “by refusing to perform assigned work or to comply with written or verbal instructions of supervisors” was ground for discharge, Whitis made the decision to discharge Summers and she consulted with the County Attorney. Whitis testified that “Summers’ religious beliefs did not play any part in the decision to terminate her.”

 

The next day, Summers placed a letter on Whitis’s desk asking that Whitis, as her employer, “accommodate my sincerely held religious belief by not requiring me to perform the task of processing marriage licenses for same sex couples.” Whitis read the letter when she got to work later that morning, and then gave Summers a letter notifying her that she was terminated “due to insubordination, as is defined in the Handbook on page 64.”  Whitis testified that Summers was insubordinate because “she refused to do a task that she was asked to do.”

 

Summers testified that she identifies as a Christian and could not process marriage licenses for same-sex couples because it was “against God’s law” to do so, and God’s law is “above legal law.” She cited some passages from the Bible in support of her position.  Whitis testified that she did not treat Summers any differently because of her religious beliefs and applied the same policies to her as to all other employees.

 

Judge Young noted that under Title VII of the Civil Rights Act of 1964 it is unlawful for an employer to discharge any individual because of their religion. According to the most recent Supreme Court precedent from 2015, he found that there are now two elements for a plaintiff to state a potential religious discrimination claim: (1) her religious belief or practice conflicted with an employment requirement, and (2) her need for an accommodation of that religious belief or practice was a motivating factor in the employer’s adverse employment decision.

 

Young found that Summers “cannot satisfy the first element of her claim.” He found that “the court must be able to conduct a limited, objective inquiry into the purported conflict.  Here, the court finds no objective conflict between Summers’ duties as a deputy clerk and her religious opposition to same-sex marriage.  When it came to marriage licenses, Summers’ job merely required her to process the licenses by entering data and handing out information.  Specifically, she had to pull up the application, verify that certain information was correct, collect a statutory fee, print a form, and record the license in a book for public record.  At bottom, she was simply tasked with certifying – on behalf of the state of Indiana, not on her own behalf – that the couple was qualified to marry under Indiana law.  The duties were purely administrative.”

 

Young emphasized that Summers was not performing marriage ceremonies or personally signing licenses or certificates. “She was not required to attend ceremonies, say congratulations, offer a blessing, or pray with couples.  Her employer did not make her express religious approval or condone any particular marriage.  Summer remained free to practice her Christian faith and attend church services.  She was even free to maintain her belief that marriage is a union between one man and one woman.  Thus, she was not forced to ‘choose between religious convictions and job.’”

 

Young found support for his conclusion in the ruling by U.S. District Judge David Bunning against Rowan County, Kentucky, Clerk Kim Davis last year, and quoted from that decision. Although Davis had tried to rely upon the 1st Amendment rather than Title VII, this would not lead to any different result.

 

“To be clear,” wrote Young, “the court does not question the sincerity of Summers’ beliefs. She maintains that ‘it’s not God’s law to have [same-sex couples] marry,’ and has pointed to select verses from the Bible in support.  That is fine; she has every right to believe that.  However, that belief, no matter how sincerely espoused, does not objectively conflict with the purely administrative duty to process marriage licenses.  Summers’ desire to avoid handling forms related to activities of which she personally disapproves is not protected by federal law.  Title VII is not a license for employees to perform only those duties that meet their private approval.”

 

Young wrote that Summers’ conflict was with “federal law,” not with “an employment requirement.” “While Whitis may have instructed Summers to process same-sex marriage licenses,” he wrote, “that directive was merely an effort to comply with the Seventh Circuit’s mandate, which expressly forbids the state of Indiana from enforcing its same-sex marriage ban.  In other words, the requirement that Summers process same-sex marriage licenses was one imposed by a federal court and merely implemented by Defendants.” Thus, it could not be the basis for an employment discrimination charge.

 

“In the end,” wrote Young, “Summers should have put her personal feelings aside and heeded the command of her employer.” While she was free to disagree with the federal courts, “that did not excuse her from complying” with their decisions, and so Whitis and the County were “within their rights” to terminate her employment.

 

Judge Young was appointed to the court by President Bill Clinton in 1997 and unanimously confirmed by the Senate. He was chief judge of the district when he struck down Indiana’s same-sex marriage ban in 2014, and just stepped down from the chief judge position this November.

 

 

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Arkansas Supreme Court Rejects Challenge to Discriminatory Birth Certificate Statutes

Although the U.S. Supreme Court issued a sweeping ruling for marriage equality in Obergefell v. Hodges on June 26, 2015, pockets of resistance remain in the states. The latest manifestation of this phenomenon comes from Arkansas, where the state’s Supreme Court ruled on December 8 by a 4-3 vote that same-sex couples do not enjoy the same constitutional rights as opposite sex couples when it comes to listing parents on birth certificates.  In Smith v. Pavan, 2016 Ark. 437, the majority of the court rejected a constitutional challenge to two Arkansas statutes under which wives of birth mothers are denied equal treatment with husbands of birth mothers in the matter of being listed as parents on birth certificates.  Three members of the court disagreed with the majority to varying extents in separate opinions.

 

The case was brought by three lesbian couples. Two of the couples, Marisa and Terrah Pavan and Leigh and Jana Jacobs, were married out-of-state and then had a child born in their residential state of Arkansas.  The third couple, Courtney Kassel and Kelly Scott, had a child in Arkansas and married shortly thereafter.  In all three cases, the Department of Health, headed by named-defendant Dr. Nathaniel Smith, refused to list the spouse of the birth mother on the birth certificate, relying on gender-specific Arkansas statutes that provide for listing husbands but not wives of birth mothers.

 

The women, represented by attorney Cheryl Maples with amicus assistance from the ACLU of Arkansas and the national ACLU LGBT Rights Project, filed suit against Smith. Pulaski County Circuit Judge Timothy Davis Fox accepted their argument that Dr. Smith, who was also a named defendant in Wright v. Smith, the Arkansas state court marriage equality case, was bound by the decision in that earlier case, which had struck down as unconstitutional not only the state’s ban on same-sex marriage but also “all other state and local laws and regulations identified in Plaintiff’s complaint or otherwise in existence to the extent they do not recognize same-sex marriages validly contracted outside Arkansas, prohibit otherwise qualified same-sex couples from marrying in Arkansas or deny same-sex married couples the rights, recognition and benefits associated with marriage in the State of Arkansas.”

 

The case appeared clear to Judge Fox. The final court order issued in Wright v. Smith required that Arkansas treat same-sex marriages as equal to different-sex marriages in all respects under state law, and Smith was precluded from trying to re-litigate that issue in this case.  Smith’s appeal from the trial court’s ruling in Wright v. Smith was pending when the U.S. Supreme Court announced its ruling in Obergefell, after which the Arkansas Supreme Court dismissed that appeal as moot, ending a stay that it had granted on the trial court’s Order.

 

Furthermore, Judge Fox found support for his decision in favor of the women in the Obergefell opinion itself, noting that Justice Anthony Kennedy had mentioned “certificates of birth and death” as one of the benefits of same-sex marriage. Kennedy had written:

 

“The challenged laws burden the liberty of same-sex couples, and they abridge central precepts of equality. The marriage laws at issue are in essence unequal: Same-sex couples are denied benefits afforded opposite-sex couples and are barred from exercising a fundamental right. . . . The State laws challenged by the petitioners in these cases are held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.”

 

To Judge Fox, this meant that married same-sex couples are entitled to the same rights of marriage as different sex couples, including the same spousal rights regarding birth certificates.

 

But a majority of the Arkansas Supreme Court insisted that the Obergefell decision, and the state court Wright decision, had not decided this issue. An opinion by Justice Josephine Linker Hart for four members of the seven-member court insisted that the only questions decided by these prior cases were whether same-sex couples could marry or have their out-of-state marriages recognized.   Viewed this way, the Wright v. Smith decision would not preclude Smith from applying Arkansas statutes to refuse to list the same-sex spouses on birth certificates unless the court were to decide independently that doing so violated the constitutional rights of the spouses.  This the court was unwilling to do.

 

Since Judge Fox had ordered Smith to issue new birth certificates listing both mothers, and that order had not been stayed, the Supreme Court decided that the case should be treated as a facial challenge to the constitutionality of the statutes. Because the plaintiffs had actually received the birth certificates they sought, any “as applied” challenge was deemed to be moot.

 

One of the challenged statutes provides that when a child is born to a married woman, her husband will be listed on the birth certificate as the child’s father unless a court has determined either that another man is the child’s biological father, or the mother, the biological father, and her husband have executed affidavits establishing that the husband is not the biological father. The other challenged statute provides that when a child is born to an unmarried woman, only she will be listed on the original birth certificate, but a new birth certificate can be issued listing the biological father if the child is “legitimated” by the biological parents subsequently marrying, or a court determines who is the biological fathers.

 

The court insisted that both statutes are clearly intended to record historical facts about the biological parents of a child, and that the state has a legitimate reason to want the original birth certificate to correctly list these historical facts. “In our analysis of the statutes presented above,” wrote Justice Hart, “it is the nexus of the biological mother and the biological father of the child that is to be truthfully recorded on the child’s birth certificate.

 

Quoting from an affidavit submitted by Melinda Allen, the state’s Vital Records Registrar, the court adopted her contention that the recordation of biological parents was “critical” to the department’s “identification of public health trends,” and she asserted that “it can be critical to an individual’s identification of personal health issues and genetic conditions.” She noted that in adoption and surrogacy situations, the biological parents are listed on original birth certificates, which are then “sealed” when new certificates are issued showing adoptive or intended parents, since the state deems it essential that a permanent record of biological parentage be preserved.

 

Justice Hart said that Judge Fox had “conflated distinct categories of marriage, parental rights, and vital records,” and that the issue in this case was not who can be a parent but rather who must be listed on a birth certificate. “On the record presented,” she wrote, “we cannot say that naming the nonbiological spouse on the birth certificate of the child is an interest of the person so fundamental that the State must accord the interest its respect under either statute.”

 

As to an equal protection challenge, the court found that the same-sex spouse is not similarly situated to the husband, and “it does not violate equal protection to acknowledge basic biological truths”. In this case, the majority found, “the challenged classification serves important governmental objectives” – the factual record of biological parentage for the reasons asserted by Melinda Allen in her affidavit.

 

The court pointed out that there was another statute that might be invoked in this situation, governing intended fathers in cases involving “artificial insemination.” In such cases, if the mother’s husband consented in writing to her insemination with donated sperm, the child would be “deemed the legitimate natural child of the woman and the woman’s husband” and he would be listed on the birth certificate.

 

At oral argument in this case, counsel for Dr. Smith conceded that this statute violated equal protection, since in this case both the husband and the same-sex spouse of the birth mother were not biologically related to the child, and thus similarly situated.   Smith’s attorney argued that if a case was brought under that statute, the court “could resolve many of the concerns raised by the [women] by amending the wording of the statute,” but Justice Hart rejected this suggestion, insisting that “this court is not a legislative body and it cannot change the wording of the statute.”  Furthermore, since the plaintiffs did not invoke the artificial insemination statute in this case – possibly because they did not have written authorization for the insemination procedure as required by the statute – the trial court did not rule on the statute’s constitutionality, so the issue of its constitutionality was not properly before the court.

 

In a concluding paragraph, the court “admonished” Judge Fox for having made a public statement that if the Arkansas Supreme Court granted a stay of his order in this case, it would be depriving people of their constitutional rights, and that the court had deprived people of their constitutional rights in a separate matter. “A remark made to gain the attention of the press and to create public clamor undermines ‘public confidence in the independence, integrity, and impartiality,’ not only of this court, but also of the entire judiciary,” wrote Hart, and Fox was formally “admonished” for “his inappropriate comments made while performing the duties of his judicial office.”

 

Chief Justice Howard Brill, in a separate opinion, agreed with the majority that Obergefell was a narrow holding that same-sex couples have a right to marry, and thus did not directly settle the question of birth certificates. However, he wrote, “The question here is the broader impact of that ruling as it affects birth certificates,” and, he wrote, “The logical extension of Obergefell, mandated by the Due Process Clause and the Equal Protection Clause, is that a same-sex married couple is entitled to a birth certificate on the same basis as an opposite-sex married couple,” because “the right to a birth certificate is a corollary to the right to a marriage license.”  He prefaced his opinion with a quote from the lyrics of Bob Dylan’s song “The Times They Are A-Changin’,” and concluded by arguing that it was up to the legislature to amend the existing laws to come into compliance with Obergefell.  “The times they are a-changin’,” he wrote.  “All three branches of the government must change accordingly.  It is time to heed the call.”

 

In her separate opinion, Justice Rhonda K. Wood joined the court in reversing the case on the ground of “prudential-mootness” because the plaintiff couples had received their revised birth certificates on the order of Judge Fox. At the same time, she wrote, “I encourage the legislature to address the relevant birth certificate statutes in the upcoming session to avoid a plethora of litigation and confusion for the courts.”  She pointed out that this litigation had actually stimulated the Health Department to modify its procedures, noting that Allen’s affidavit stated that the department “will issue birth certificates listing both same-sex parents if the hospital submits documentation reflecting that fact,” although the parties disputed at oral argument about how consistently this new policy was being implemented.  She also noted Smith’s concession at the oral argument that the artificial insemination statute, as written, violated equal protection, and that if the department administers it appropriately, “any legal challenge in this regard would be moot.”  Judge Wood emphasized the fluidity of the situation on the ground and the likelihood that things had changed since Allen made her affidavit.  This, to her, would justify the court as treating the appeal as moot and sending the case back to the circuit court for a new hearing to determine the current facts, which might make it unnecessary to issue a constitutional ruling.  However, departing from the majority, she wrote that in her view, “states cannot constitutionally deny same-sex couples the benefits to marital status, which include equal access to birth certificates,” and suggested that the legislature should amend the statute to comply with this conclusion.

 

Justice Paul Danielson dissented totally from the majority opinion, stating that he would affirm Judge Fox’s ruling, agreeing that Smith and Obergefell settled the matter and the statutes as written were clearly unconstitutional.

 

Justices Wood and Danielson dissented from the majority’s admonishment of Judge Fox. Justice Wood merely stated that she had not “participated” in the majority’s decision to admonish the judge. Justice Danielson wrote at length, arguing that the admonishment violated Judge Fox’s constitutional free speech rights, quoting a U.S. Supreme Court decision stating that “the operations of the courts and the judicial conduct of judges [are] matters of the utmost public concern.” The Supreme Court “has cautioned against repressing speech under the guise of promoting public confidence in the integrity of the judiciary,” wrote Danielson.  “In short,” he concluded, “the fact that members of this court have personally taken offense to the circuit judge’s remarks is not a sufficient basis for suggesting that those remarks violate our disciplinary rules.”

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