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A Second US District Judge Blocks Trump’s Ban on Transgender Military Service

Posted on: November 21st, 2017 by Art Leonard No Comments

A second federal district judge has issued a preliminary injunction against implementation of President Donald Trump’s August 25 Memorandum implementing his July 26 tweet announcing a ban on all military service by transgender individuals. Stone v. Trump, Civil Action No. MJG-17-2459 (D. Md.). The November 21 action by District Judge Marvin J. Garbis of the District of Maryland came just three weeks after a federal district judge in the District of Columbia, Colleen Kollar-Kotelly, had issued a preliminary injunction against two directives in Trump’s three-directive memo.  (See Doe v. Trump, 2017 U.S. Dist. LEXIS 178892, 2017 WL 4873042 (D.D.C. Oct. 30, 2017).  Judge Garbis took the next step, enjoining implementation of all three directives, finding that the plaintiff group represented by the American Civil Liberties Union (ACLU) in this case includes at least two individuals who had standing to challenge the directive against the military providing sex reassignment procedures for military personnel.

In his August 25 Memorandum, Trump directed that all transgender service members be discharged, beginning no later than March 23, 2018, and that the existing ban on accession of transgender members, scheduled to end on January 1, 2018, be extended indefinitely. His third directive provided that after March 23 the Defense Department cease providing sex reassignment surgery for transgender personnel, with a possible individual exception in cases where procedures were already under way and failure to complete them would endanger the health of the individual.  (Of course, those individuals, being identified as transgender, would be subject to discharge under the first directive in any event.)

On September 24, Secretary of Defense James Mattis issued a memorandum establishing an “interim policy,” announcing that he would meet the President’s deadline of submitting a “plan to implement the policy and directives in the Presidential Memorandum” by February 21, but until then, there would be no immediate effect on individual service members.

The ACLU filed this lawsuit in the U.S. District Court in Maryland on August 8. Three other lawsuits challenging the transgender ban are pending.  One filed on August 9 in the District of Columbia District Court has already resulted in the preliminary injunction issued by Judge Kollar-Kotelly.  The others are pending in the District Courts in Seattle and Los Angeles, where the plaintiffs are also seeking preliminary injunctions.

Judge Garbis leaned heavily on Judge Kollar-Kotelly’s October 30 ruling for much of his analysis, agreeing with her that heightened scrutiny applies to the plaintiffs’ equal protection claim and that the usual judicial deference to military policy decisions by the Executive Branch was not appropriate in this case. The judge took particular note of an amicus brief filed by retired military officers and former national security officials, who had written that “this is not a case where deference is warranted, in light of the absence of any considered military policymaking process, and the sharp departure from decades of precedent on the approach of the U.S. military to major personnel policy changes.”

Continued Garbis, “President Trump’s tweets did not emerge from a policy review, nor did the Presidential Memorandum identify any policymaking process or evidence demonstrating that the revocation of transgender rights was necessary for any legitimate national interest. Based on the circumstances surrounding the President’s announcement and the departure from normal procedure, the Court agrees with the D.C. Court that there is sufficient support for Plaintiffs’ claims that ‘the decision to exclude transgender individuals was not driven by genuine concerns regarding military efficacy.’”

Indeed, Garbis concluded that heightened scrutiny was not even necessary to rule for the Plaintiffs on this motion. “The lack of any justification for the abrupt policy change, combined with the discriminatory impact to a group of our military service members who have served our country capably and honorably, cannot possibly constitute a legitimate governmental interest,” he wrote, so it would fail the minimally demanding rationality test applied to all government policies.

Garbis closely followed the D.C. Court’s analysis of the grounds for jurisdiction in this case, rejecting the government’s argument that nobody had been harmed yet so nobody had standing to bring the case, and that it was not yet ripe for judicial resolution when Mattis had not yet made his implementation recommendations to the President. The adoption of a policy that violates equal protection is deemed a harm even before it is implemented, and the stigmatic harm of the government officially deeming all transgender people as unfit to serve the country is immediate.  The court found that Trump’s directive that Mattis study how to implement the president’s orders was not, in effect, a mandate to recommend exceptions or abandonment of the ban, thus undercutting the government’s argument that it is merely hypothetical or speculative that the ban would go into effect unless enjoined by the courts.

Garbis went further than Kollar-Kotelly to enjoin the sex reassignment directive because the ACLU’s plaintiff group included at least two individuals whose transition procedures have already been disrupted and will be further disrupted if the ban goes into effect. The D.C. Court had accepted the government’s argument that appropriate adjustments had vitiated any negative effect on the plaintiffs in that case who were seeking transition procedures, but Garbis found that the timing of the transition procedures for the plaintiffs before him would be disrupted if the ban goes into effect, so the harm was not merely hypothetical.

The court based the preliminary injunction on its finding that plaintiffs were likely to prevail in their equal protection argument, and did not address the due process argument in that context. However, in rejecting the government’s motion to dismiss the due process claim, Garbis accepted the plaintiffs’ argument that “it is egregiously offensive to actively encourage transgender service members to reveal their status and serve openly, only to use the revelation to destroy those service members’ careers.”

In perhaps the strongest statement in his opinion, Garbis wrote: “An unexpected announcement by the President and Commander in Chief of the United States via Twitter that ‘the United States Government will not accept or allow Transgender individuals to serve in any capacity in the U.S. Military’ can be considered shocking under the circumstances. According to news reports provided by Plaintiffs, the Secretary of Defense and other military officials were surprised by the announcement.  The announcement also drew swift criticism from retired generals and admirals, senators, and more than 100 Members of Congress.  A capricious, arbitrary, and unqualified tweet of new policy does not trump the methodical and systematic review by military stakeholders qualified to understand the ramifications of policy changes.”

The only setback suffered by the plaintiffs was dismissal, without prejudice, of their claim that the policy violates 10 U.S.C. sec. 1074(a)(1), a statute the entitles active duty and reserve military members to medical care in military treatment facilities. The plaintiffs claimed that the sex reassignment directive exceeded the President’s authority by attempting to override a statute by “denying necessary medical care to a group of service member he happens to disfavor,” and that doing so through a unilateral White House memorandum rather than a regulation adopted pursuant to the Administrative Procedure Act was unlawful.  Garbis characterized the plaintiffs’ factual allegations in support of this claim as “conclusory” and thus not sufficient to meet the civil pleading requirement.  However, he wrote, “Perhaps Plaintiffs could assert an adequate and plausible statutory claim,” so he dismissed without prejudice, allowing the plaintiffs to seek permission to file an amendment that “adequately asserts such a claim if they can do so.”  This dismissal does not really affect the substance of the relief granted by the preliminary injunction or sought in the ongoing case, because Judge Garbis granted the preliminary injunction on constitutional grounds against implementation of Trump’s sex reassignment surgery, exactly the part of the Trump memorandum targeted by the statutory claim.

The Justice Department will likely seek to appeal this ruling to the 4th Circuit Court of Appeals, just as it had announced that it would appeal Judge Kollar-Kotelly’s ruling to the D.C. Circuit Court of Appeals.  By the time an appeal is considered, however, it is likely that preliminary injunctions will also have been issued by the district courts in Seattle and Los Angeles.  Maybe a united front of judicial rejections of the transgender ban will convince Trump and Attorney General Jeff Sessions, whose department is defending the ban, that it is time to withdraw the August 25 Memorandum and disavow the July 26 tweet.

Since the Administration takes the position that Presidential tweets are official policy statements of the President, a disavowal of the tweets would be necessary to render the policy fully withdrawn, one presumes, although this is unexplored territory. Interestingly, Judge Garbis followed Judge Kollar-Kotelly’s example by including a cut and paste version of the Trump tweet sequence in the background section of his opinion, and specifically identified policy announcement by tweet as a departure from normal procedure that contributes to the constitutional analysis.

Judge Garbis, a Senior U.S. District Judge, was appointed by President George H.W. Bush.

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

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

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

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

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

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

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

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

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

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

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

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

Federal Court Says Utah Must Recognize Same-Sex Marriages That Were Celebrated Before the Supreme Court Stay

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

U.S. District Judge Dale A. Kimball ruled on May 19 that the state of Utah must recognize the same-sex marriages that were performed in the state from December 20 to January 6. Another federal district judge, Robert Shelby, ruled on December 20 in Kitchen v. Herbert that Utah’s ban on same-sex marriage was unconstitutional. Judge Shelby, and subsequently the 10th Circuit Court of Appeals, refused to stay that decision pending appeal and more than 1300 marriage licenses were issued to same-sex couples before the U.S. Supreme Court responded affirmatively to the state’s request for a stay pending appeal. After the Supreme Court issued its stay, Governor Gary Herbert declared that the same-sex marriages that had been performed were “on hold” as the stay had “revived” the state’s marriage ban. In this ruling in Evans v. State of Utah, Judge Kimball found that the state is barred by the Due Process Clause of the 14th Amendment from putting legally valid marriages “on hold,” but temporarily stayed his own ruling for 21 days to give the state an opportunity to appeal to the 10th Circuit.

There was some confusion on the part of the state government after Judge Shelby issued his injunction against the state’s marriage ban. Some clerks began issuing licenses quickly, while others hesitated, awaiting instructions from the state government. Finally, upon the attorney general’s advice that clerks who refused to issue licenses could be held in contempt by the federal district court, many clerks fell into line and issued more than 1300 licenses, as state officials announced that such marriages were valid. However, when the Supreme Court issued its stay and the governor declared that those marriages were now “on hold” because the state could not recognize them under the “revived” laws, the ACLU filed suit on behalf of several recently-married couples, seeking an injunction requiring the court to recognize the marriages.

The result was to interfere with the ongoing efforts by recently-married same-sex couples to assert their rights, including several adoption proceedings that were thrown into limbo as Utah trial judges were uncertain how to proceed. Indeed, the state is facing the threat of a contempt proceeding from one trial judge who issued an adoption order that state officials are refusing to honor by issuing an appropriate birth certificate, and there are already questions pending at the Utah Supreme Court about the status of these marriages. The court has temporarily stayed various adoption proceedings while it decides whether the state must recognize the marriages. It will be interesting to see what weight it accords to the federal district court’s ruling on vested rights, which depends on that court’s reading of Utah precedents.

The ACLU filed its lawsuit in state court, but the state removed the suit to federal district court, and opposed the plaintiffs’ motion to certify to the Utah Supreme Court the question whether couples legally married under Utah law have vested rights in their marriage that could not be taken away by the state without a compelling interest. The plaintiffs moved for a preliminary injunction, arguing that as a matter of law their vested rights were being abridged by the state for no valid reason. The state, in response, argued that the Supreme Court’s stay had a retroactive effect, restoring the marriage ban going back to December 20, 2013, thus rendering the marriages invalid. And, after having opposed the plaintiff’s motion to certify the question to the Utah Supreme Court, the state reversed course and urged Judge Kimball to certify virtually the same question, but Judge Kimball refused to do so, finding that Utah precedents are clear on the question of vested marriage rights.

Judge Kimball found that the state’s arguments were contradicted by well-established principles of Utah law as well as the Due Process Clause of the 14th Amendment. Judge Kimball placed heavily reliance on the California Supreme Court’s ruling in the somewhat analogous situation created when California voters adopted Proposition 8 in November 2008 after thousands of same-sex couples had married in the five months after that court’s marriage equality decision went into effect in June 2008. In that case, Strauss v. Horton, the California Supreme Court said that those who had married at a time when same-sex marriage was legal had vested rights in their marital status and everything that went with that status, which could not be taken away by a subsequent constitutional amendment. Kimball found that Utah cases dating back to the 19th century had also taken the position that once a couple was legally married, they had vested marriage rights protected against retroactive rejection by the state.

Utah’s attorneys argued that the California situation with Proposition 8 was distinguishable. The Utah licenses were issued in compliance with an injunction by a single federal trial judge that the state had promptly appealed. Thus, they said, it was not in that sense a final order in the case, unlike the California Supreme Court’s ruling on marriage equality, which could only be overturned by a state constitutional amendment. (That amendment was subsequently ruled unconstitutional by a federal district court in the famous Perry v. Schwarzenegger case, which went into effect last June after the U.S. Supreme Court ruled that the proponents of Proposition 8 did not have standing to appeal the court’s ruling, which had not been appealed by state officials.) Judge Kimball was not persuaded by this distinction, and he also pointed out the strong bias against retroactive application of new legal rulings. The Supreme Court did not issue any explanation about the impact of the stay it issued on January 6, and Judge Kimball pointed out that such an action would not be deemed to have any sort of retroactive effect unless the Supreme Court had voiced such an intention.

He also found that there were strong Utah judicial precedents concerning vested rights in marriage, holding that such rights vest when the marriage was performed. According to Judge Kimball, from the time Judge Shelby issued his injunction until the time the Supreme Court stayed the injunction pending appeal, it was legal for same-sex couples to marry in Utah, and as soon as any such marriage was performed, the couple had vested rights in the marriage that could not be abridged by the state. He pointed out that this was consistent with the Supreme Court’s DOMA ruling, U.S. v. Windsor. “The Windsor Court held that divesting ‘married same-sex couples of the duties and responsibilities that are an essential part of married life’ violates due process,” he wrote.

Judge Kimball went through the wording of the Utah constitutional and statutory same-sex marriage bans, and found that all of those provisions were stated in the present tense and made no mention of retroactive application. Thus, if one construed the Supreme Court stay to have “revived” those provisions while the case was on appeal, there was no basis to apply them retroactively.

“The State argues that application of Utah’s previously existing marriage bans after the Supreme Court’s Stay Order is not retroactive application of the bans because the laws were enacted long before the Plaintiffs entered into their marriages,” he wrote. “However, this argument completely ignores the change in the law that occurred. The marriage bans became legal nullities when the Kitchen decision was issued and were not reinstated until the Stay Order. In addition, the State’s argument fails to recognize that Utah law defines a retroactive application of a law as an application that ‘takes away or impairs vested rights acquired under existing laws in respect to transactions or considerations already past.’ Under this definition, the State’s application of the marriage bans to place Plaintiffs’ marriages ‘on hold,’ necessarily ‘takes away or impairs vested rights acquired under existing law.” Judge Kimball concluded that even if Judge Shelby’s decision is eventually reversed and the injunction dissolved, the marriages that were performed would remain valid under the vested rights theory and the strong policy against retroactive application of law.

After analyzing the factors applied in the 10th Circuit to determine whether a preliminary injunction should be issued, Judge Kimball found that all the factors had been satisfied. “Plaintiffs have demonstrated a clear and unequivocal likelihood of success on the merits of their deprivation of federal due process claim,” he wrote, and he found that they had also established the necessary irreparable harm if their marriages were not recognized. On the other hand, he found, “The State has no legitimate interest in depriving Plaintiffs of their constitutional rights,” and he also found “no harm to the State based on an inability to apply the marriage bans retroactively.” As to the public interest, “the court agrees with Plaintiffs that the public is well served by having certainty about the status of Plaintiffs’ marriages.”

The state’s lawyers had asked the court to stay its preliminary injunction so that the state could appeal it to the 10th Circuit. Judge Kimball concluded that “the State has not met its burden of establishing the factors required for a stay pending appeal,” but decided to exercise discretion to grant to the state a “limited 21-day stay during which it may pursue an emergency Motion to Stay with the Tenth Circuit.” His explanation: “The court recognizes the irreparable harms facing Plaintiffs every day. However, the court finds some benefit in allowing the Tenth Circuit to review whether to stay the injunction prior to implementation of the injunction. Therefore, notwithstanding the many factors weighing against a stay, the court, in its discretion, grants the State a temporary 21-day stay.” However, unless the 10th Circuit responds favorably to the state’s request, Judge Kimball’s order will go into effect requiring recognition of the marriages.

The plaintiffs were represented at the court’s hearing on the preliminary injunction motion by attorneys Erik Strindberg, Joshua A. Block and John Mejia.

Judge Kimball was appointed to the federal district court by President Bill Clinton in 1997 and took senior status and a reduced caseload in November 2009 upon reaching age 70. He teaches at Brigham Young University Law School, and is an active member of the Mormon Church, in which he has held various leadership positions.