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NCLR Seeks Supreme Court Review of Arkansas Birth Certificate Decision

Posted on: February 15th, 2017 by Art Leonard No Comments

The National Center for Lesbian Rights (NCLR) filed a petition for certiorari with the U.S. Supreme Court on February 13, seeking review of the Arkansas Supreme Court’s decision that the state was not required under Obergefell v. Hodges, 135 S. Ct. 2584 (2015), to extend the presumption of parentage to the same-sex spouse of a birth mother for purposes of recording parentage on a birth certificate. Smith v. Pavan, 2016 WL 7156529 (Ark. December 8, 2016), petition for certiorari filed sub nom. Pavan v. Smith, No. 16-992.

The Arkansas Supreme Court’s decision, by a sharply divided court with three strong dissenting opinions, was the first ruling on this question to depart from a post-Obergefell consensus of courts in other jurisdictions that equal marriage rights for same-sex couples necessarily include the equal right to have a spouse recorded as a parent on a birth certificate, despite the lack of a “biological” tie to the child, especially in light of the common practice of automatically recognizing a birth mother’s husband for that purpose, regardless whether he is “biologically related” to the child.

The due process and equal protection issues raised by the Arkansas court’s decision are stark, raising the possibility that the Supreme Court might consider this an appropriate case for a summary reversal, similar to its decision last term to summarily reverse the Alabama Supreme Court’s refusal to accord full faith and credit to a same-sex second parent adoption approved by a Georgia family court in V.L. v. E.L., 136 S. Ct. 1017 (March 7, 2016).  In V.L. the Court moved quickly to reverse the state supreme court ruling based on the certiorari filings, seeing no need for full briefing and hearing on the merits.  That ruling was announced several weeks after the death of Justice Scalia by the eight-member Court, and brought no dissent from any justices, three of whom had dissented in Obergefell.  They implicitly agreed that with Obergefell as a precedent, there was no justification for recognizing any exception to the general rule that adoption decrees are to be recognized when the court granting the adoption clearly had jurisdiction over the parties and the subject matter of the adoption petition.  They rejected the Alabama Supreme Court’s reliance on its own interpretation of the Georgia adoption statute as withholding “jurisdiction” from the family court to grant such an adoption.

NCLR petitioned on behalf of two married same-sex couples – Marisa and Terrah Pavan and Leigh and Jana Jacobs. Each couple had married out of state and then, living in Arkansas, had a child conceived through donor insemination.  In both cases, the mothers completed the necessary paper work to get a birth certificate when their children were born.  In both cases, the state health department issued a certificate naming only the birth mother and leaving the space for “father” blank on the birth certificate rather than naming the other mother.  The state insisted that under its statute the automatic listing was limited to a husband of the birth mother.

The women filed suit against the director of the state health department, Dr. Nathaniel Smith, seeking to compel issuance of appropriate birth certificates, together with another couple who were not married when they had their child but who subsequently married after the Obergefell decision and sought an amended birth certificate.  That other couple is no longer in the case, having gone through an adoption proceeding and obtained a new birth certificate naming both mothers.  The Arkansas state trial court construed Obergefell and its own marriage equality decision, Wright v. Smith, to require according equal recognition to same-sex marriages for this purpose, and ordered the state to issue amended birth certificates accordingly.  The trial court refused to stay its decision pending appeal, so the certificates were issued.

The Arkansas Supreme Court reversed, even though the state conceded at oral argument that in light of its statute requiring that a husband be listed on a birth certificate regardless whether he was biologically related to the child the state’s position was inconsistent with its own practice. Indeed, the state conceded at oral argument that it had no rational basis for treating same-sex and different-sex spouses differently for this purpose.  However, the state insisted that it was refusing to list same-sex spouses consistent with its gender-specific statute because the birth certificate was necessary to establish the identity of biological parents for public health reasons.  This was a patently absurd argument in light of the various circumstances under Arkansas law where non-biological fathers are listed on birth certificates.

The dissenting judges pointed in various ways to the Obergefell decision, which actually listed birth certificates as one of the issues related to marital rights that helped explain why the right to marry was a fundamental right.  Furthermore, as the certiorari petition points out in detail, the very question raised by this case was specifically part of the Obergefell case, as the underlying state cases that were consolidated into the appeal argued at the 6th Circuit and the Supreme Court included plaintiffs who were married lesbian couples seeking to have appropriate birth certificates for their children.  In those cases, the certificates had been denied by states that refused to recognize the validity of the mothers’ out-of-state marriages.  Thus, the Supreme Court’s reference to birth certificates was part of the issue before the Court, not merely illustrative of the reasons why the Court deemed the right to marry fundamental, and in holding that states were required to recognize same-sex marriages validly performed in other states, the Court was incidentally addressing the refusal of states in the cases before the Court to recognize petitioners’ marriages for purposes of recording the names of parents on birth certificates!

Thus, the Arkansas Supreme Court majority was clearly wrong in asserting that the Obergefell decision did not address this issue and pertained only to the question whether same-sex couples had a right to marry.  Given biological facts, lesbian couples having children through donor insemination are exactly similarly situated with different-sex couples having children through donor insemination, as in both cases the spouse of the birth mother is not the biological parent of the child.  By the logic of Obergefell, denial of such recognition and marital rights offends both due process and equal protection guarantees of the 14th Amendment.  And, as the Petition points out, such denial relegates same-sex marriages to a “second tier” treatment, which was condemned by the Supreme Court in United States v. Windsor, 133 S. Ct. 2675 (2013), when it ruled that the federal government was required to extend equal recognition to same-sex marriages validly contracted under state laws.  In both cases, the Supreme Court rejected the argument that the inability of same-sex lesbian couples to conceive children without a sperm donor provided a rational basis to deny recognition to their marriages or treat them differently from the marriages of heterosexual couples.

NCLR attorneys on the Petition including Legal Director Shannon Minter and staff attorneys Christopher Stoll and Amy Whelan. Arkansas attorney Cheryl Maples is listed as local counsel.  Cooperating Attorneys from Ropes & Gray LLP (Washington and Boston offices) on the Petition include Molly Gachignard, Christopher Thomas Brown, Justin Florence, Joshua Goldstein and Daniel Swartz, with prominent R&G partner Douglas Hallward-Driemeier as Counsel of Record for the case.  Hallward-Driemeier successfully argued the marriage recognition issue before the U.S. Supreme Court in Obergefell v. Hodges.  GLAD attorney Mary Bonauto from Boston argued the right to marry issue in Obergefell.

Arkansas Supreme Court Rejects Challenge to Discriminatory Birth Certificate Statutes

Posted on: December 12th, 2016 by Art Leonard No Comments

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.”

Federal Court Rejects Transgender Citizen’s Complaints of Unconstitutional Treatment by NYPD Officers

Posted on: October 1st, 2016 by Art Leonard No Comments

In a decision notably lacking in empathy for transgender people and the slights and humiliations they suffer on a regular basis, U.S. District Judge Gregory H. Woods granted New York City’s motion to dismiss a complaint by Marlow White, self-identified as a man of transgender experience, that his 14th Amendment rights were violated by NYPD officers and the City when the police failed to respond to the continued verbal harassment of White by Napoleon Monroe, a man who frequented the neighborhood where White lived and made various threats against him as well as subjecting him to verbal harassment.  White v. City of New York, 2016 WL 4750180 (S.D.N.Y., Sept. 12, 2016).

According to the court’s summary of the factual allegations, the police officers who were summoned by White when he was continually accosted by Monroe were blatantly transphobic, treating him as somebody unworthy of respect and suggesting that until somebody was seriously injured, they would not lift a finger to help.

Among other things, Judge Woods’ opinion concludes that in the absence of a 2nd Circuit ruling holding that gender identity is a suspect classification (or, as the judge phrases it, that discrimination against transgender people is a form of sex discrimination and thus subject to heightened scrutiny review, as the 11th but not the 2nd Circuit has held), the refusal of police officers to take White’s complaints or do anything to stop Monroe’s harassment of him is subject only to rational basis review.  Under that standard, Woods found that the discretionary decision by police officers not to arrest somebody who had yet to commit a violent crime against the complainant was not so arbitrary as to lose them the shield of qualified immunity.

Furthermore, the judge found that under Due Process jurisprudence the police officers had no obligation to prevent one citizen from subjecting another to verbal harassment and threats, so long as the police were not enabling or encouraging actual harm to the complainant.

The judge found that White’s allegations of past incidents involving the police and their dealings with transgender people were not sufficient to document some sort of official NYPD policy of disparate treatment of transgender people that would be necessary to impose municipal liability, or of a failure to properly train the police about how to interact with transgender people. One suspects that transgender rights organizations could supply a panoply of evidence about police disrespect for the human rights and dignity of transgender people, but unfortunately the evidence presented in response to this dismissal motion seems to have been minimal.

“White’s conclusory allegations regarding the City’s alleged failure to train its police officers fail to state a claim,” wrote the judge.  “He states that ‘adequate training regarding issues peculiar to persons of trans experience will make it substantially less likely that the rights of persons of trans experience will be violated.  But the facts in the Amended Complaint do not plead a pattern of similar constitutional violations, such that the City was on notice that different, or additional, training was needed.”  Quoting a Supreme Court ruling, Connick v. Thompson, 563 U.S. 51, 62 (2011), “Without notice that a course of training is deficient in a particular respect, decisionmakers can hardly be said to have deliberately chosen a training program that will cause violations of constitutional rights.”  Judge Woods found that White “has failed to establish a history of NYPD officers mishandling situations involving persons of trans experience such that the City was deliberately indifferent by failing to provide the unspecified training that he desires.  Accordingly, because White has failed to allege either a widespread practice or a failure-to-train claim, his Monell claim is dismissed without prejudice.”

White is represented by Donald Robert Dunn, Jr., of the Bronx.  The dismissal without prejudice suggests that he could come back with a new complaint on the municipal liability issue if he can put together a more complete factual record of the NYPD’s failure to provide non-discriminatory law enforcement protection to trans citizens.

But we suspect that if top management officials in the NYPD, the Corporation Counsel’s office and the De Blasio Administration took the time to read Judge Woods’ summary of White’s factual allegations, they might quickly conclude that it would be prudent to provide appropriate training at the precinct level to NYPD officers on how to deal sensitively with such issues, as a matter of good public policy if not constitutional obligation.  After all, the articulated goal of the city administration is to improve the quality of life of NYC residents by cultivating a collaborative relationship between the citizenry and the law enforcement community.  And, it is possible that the 2nd Circuit will eventually decide that gender identity discrimination is a form of “sex discrimination,” as the 11th Circuit, the EEOC and other federal agencies have concluded, and the activities of the NYPD in this regard will be subjected to heightened scrutiny in appropriate cases.

Federal Judge in Puerto Rico Claims Obergefell v. Hodges Does Not Apply There

Posted on: March 9th, 2016 by Art Leonard No Comments

In an astonishing departure from established precedents, U.S. District Judge Juan M. Perez-Gimenez of the U.S. District Court in Puerto Rico, who had dismissed a marriage equality lawsuit on October 21, 2014, has issued a new decision on March 8, 2016, Vidal v. Garcia-Padilla, 2016 U.S. Dist. LEXIS 29651, asserting that the U.S. Supreme Court’s ruling on June 26, 2015 in Obergefell v. Hodges, 135 S. Ct. 2584, that the 14th Amendment of the U.S. Constitution protects the right of same-sex couples to marry in the United States, does not necessarily apply to Puerto Rico.

Lambda Legal represents the plaintiffs in that marriage equality case.  Lambda appealed the court’s 2014 ruling to the 1st Circuit Court of Appeals, which has jurisdiction over federal cases arising in Puerto Rico.  That court held up ruling on the appeal until after the Supreme Court ruled in Obergefell.  On July 8, 2015, the 1st Circuit vacated Judge Perez-Gimenez’s decision and sent the case back to the district court “for further consideration in light of Obergefell v. Hodges.”  In its brief order, the 1st Circuit also stated that it “agrees with the parties’ joint position that the ban [on same-sex marriage] is unconstitutional.”  A week later, the parties filed a “Joint Motion for Entry of Judgment” with the district court, asking for a declaration that Puerto Rico’s statutory ban on same-sex marriage is unconstitutional, and an injunction ordering the commonwealth government not to enforce the ban.

In a  footnote to his opinion, Judge Perez-Gimenez observed that Governor Alejandro Garcia Padilla had signed an Executive Order “just hours after the Supreme Court’s decision in Obergefell” directing Puerto Rico government officials to comply with that ruling, an action that provoked some members of the Puerto Rico legislature to file a lawsuit in the local courts challenging his action.  That case has apparently gone nowhere, and the government of Puerto Rico has been issuing marriage licenses to same-sex couples and recognizing their marriages performed elsewhere.

Perez-Gimenez explained that in Obergefell the Supreme Court invoked the 14th Amendment’s Due Process and Equal Protection Clauses to hold that the same-sex marriage bans in the four states within the jurisdiction of the 6th Circuit Court of Appeals (Michigan, Ohio, Kentucky and Tennessee) were unconstitutional because they deprived same-sex couples of a fundamental right to marry, thus abridging their liberty and denying equal protection of the laws.  He also noted that some lower federal courts have acknowledged that Obergefell v. Hodges was technically ruling on the state constitutions and laws of those four states, and thus had not automatically mooted cases pending in the 5th, 8th and 11th Circuit Courts of Appeals involving same-sex marriage bans in other states, although those courts quickly issued rulings applying Obergefell as a precedent to the marriage equality cases arising from states under their jurisdiction.

More significantly, Judge Perez-Gimenez claimed that because Puerto Rico is neither a “state” nor an “incorporated territory,” but rather an “unincorporated territory” with extensive self-government rights under a federal statute making it a “commonwealth,” there is some question whether the Supreme Court’s ruling in Obergefell is a binding precedent in Puerto Rico.  He pointed out, that the 14th Amendment provides expressly that “no state” may deprive a person of due process or equal protection, and that because Puerto Rico is not a state, the 14th Amendment’s applicability is not clear.  He cited a variety of older Supreme Court decisions making the general point that all provisions of the U.S. Constitution do not necessarily apply to Puerto Rico in all circumstances.

What he neglected to cite, however, was a case pointed out by Joshua Block, an ACLU attorney who spoke with Chris Geidner of BuzzFeed.com shortly after Perez-Gimenez issue his ruling: a 1976 Supreme Court decision, Examining Board of Engineers v. Flores de Otero, 426 U.S. 572 (1976), in which the Court stated, in an opinion by Justice Harry Blackmun, “The Court’s decisions respecting the rights of the inhabitants of Puerto Rico have been neither unambiguous nor exactly uniform.  The nature of this country’s relationship to Puerto Rico was vigorously debated within the Court as well as within the Congress.  It is clear now, however, that the protections accorded either by the Due Process Clause of the Fifth Amendment or the Due Process and Equal Protection Clauses of the Fourteenth Amendment apply to residents of Puerto Rico.”

In that case, the Court was considering the constitutionality of a local Puerto Rican statute imposing a citizenship requirement before somebody could be licensed to practice as a civil engineer.  The Court held that the requirement violated equal protection, based on its precedents interpreting both the 5th and 14th Amendments, under which the Court imposes “strict scrutiny” on federal or state laws that discriminate based on alienage.  That is, the government must have a compelling justification before it can deny a right or benefit to somebody because they are not a U.S. citizen.  In a prior case, Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663 (1974), the Court had specifically held that the due process requirements of the 5th and 14th Amendment also applied to Puerto Rico, limiting the right of the government to restrict the rights of property-owners.

Thus, Judge Perez-Gimenez’s insistence that the Supreme Court’s holding concerning the rights of same-sex couples under the 14th Amendment does not apply to persons present in Puerto Rico appears contrary to a Supreme Court precedent.

Nonetheless, Perez-Gimenez, without acknowledging these Supreme Court decisions, held that “the right to same-sex marriage in Puerto Rico requires: (a) further judicial expression by the U.S. Supreme Court; or (b) the Supreme Court of Puerto Rico; (c) incorporation through legislation enacted by Congress, in the exercise of the powers conferred by the Territorial Clause; or (d) by virtue of any act or statute adopted by the Puerto Rico Legislature that amends or repeals Article 68 [the local law banning same-sex marriage].”

Had there been any doubt that the Obergefell ruling applies to Puerto Rico, the 1st Circuit would have expressed that doubt as part of its consideration of the appeal from Perez-Gimenez’s prior ruling in the case.  Instead, that court expressly stated its agreement with the joint position stated by the parties in that case that the Puerto Rico ban was unconstitutional.  Lambda Legal will promptly appeal this ruling to the 1st Circuit.  In the meantime, presumably the governor’s executive order remains in effect.

Discharged Atlanta Fire Chief Strikes Back in Federal Lawsuit

Posted on: December 24th, 2015 by Art Leonard No Comments

Kelvin J. Cochran, who was discharged as Chief of the Atlanta, Georgia, Fire and Rescue Department (AFRD) after he self-published a book asserting negative views about homosexuality and same-sex marriage based on his religious beliefs, has struck back at the City and Mayor Kasim Reed with a lawsuit claiming a violation of his constitutional rights.  On December 16, U.S. District Judge Leigh Martin May issued a ruling dismissing some of Cochran’s claims, but allowing others to go forward.  Cochran v. City of Atlanta, 2015 WL 9244523 (N.D. Ga., Dec. 16, 2015).

Cochran became the Atlanta Fire Chief in 2008.  He left for ten months in 2009 to serve as Administrator of the U.S. Fire Administration in Washington, D.C., but returned and continued in the Atlanta position until he was suspended as a result of the controversy surrounding his book and ultimately discharged on January 6, 2015.

Cochran, self-described as a devout evangelical Christian and an active member of Atlanta’s Elizabeth Baptist Church, wrote and self-published a book titled “Who Told You That You Were Naked?: Overcoming the Stronghold of Condemnation.”  The book grew out of a men’s Bible study group at his church, and was intended as a guide to men to help them “fulfill God’s purpose for their lives.”  One of those purposes, according to Cochran’s book, is to avoid any sexual activity outside of a traditional heterosexual marriage, expressing the view that homosexual activity and same-sex marriage are immoral and inconsistent with God’s plan.

Cochran consulted the City’s Ethics Officer about whether a city official could write a “non-work-related, faith-based book,” and was told he could do that “so long as the subject matter of the book was not the city government or fire department,” but he did not obtain a written ruling.  He later asked the Ethic Officer if he could identify himself in the book as Atlanta Fire Chief, and she responded in the affirmative.  Cochran placed the book for sale on Amazon.com, and distributed free copies to various individuals, including Mayor Reed, some members of the city council, and various Fire Department employees whom he considered to be Christians (some of whom knew he was writing the book and had requested copies).

A Fire Department employee who saw the book and objected to its statements about sexual morality contacted City Councilmember Alex Wan to complain, which led Wan to initiate discussions at the City’s “upper management” level.  This led to a meeting of top City officials with Mayor Reed.  On November 24, 2014, Cochran received a letter informing him that he was suspended without pay for 30 days while the City determined what to do.  Among other things, the City cited an ordinance prohibiting city officials from engaging in outside employment for pay without written permission from the Ethics office.  At the same time, Mayor Reed went public about disagreeing with Cochran’s views expressed in the book, stating “I profoundly disagree with and am deeply disturbed by the sentiments expressed in the paperback regarding the LGBT community” and disassociating his administration from those views.  Councilmember Wan released a statement to the local newspaper that “I respect each individual’s right to have their own thoughts, beliefs and opinions, but when you’re a city employee, and those thoughts, beliefs and opinions are different from the city’s, you have to check them at the door.”  Cochran’s suspension and statements by Reed, Wan and other city officials led to extensive media coverage.  On January 6, 2015, Cochran was informed of his discharge.

Atlanta has had local legislation banning sexual orientation discrimination for many years, and has long provided benefits for same-sex partners of city employees.  At the time this controversy arose late in 2014, a federal district court had ruled against the constitutionality of Georgia’s ban on same-sex marriage, but the matter was still pending on appeal in the courts.  Atlanta government leaders had openly supported the litigation for marriage equality.  Cochran’s views expressed in the book were apparently out of synch with the views of the City’s elected leadership.  However, Cochran claimed in his federal complaint that he has never been accused of discriminating as Fire Chief on the basis of sexual orientation.

Cochran’s lawsuit poses a classic and recurring policy question: to what extent can a state or local government require public officials to refrain from publicizing their views on controversial public issues when those views conflict with official policies as articulated by politically-accountable officials?  The U.S. Supreme Court has issued a series of important decisions since first addressing this issue in 1968 in Pickering v. Board of Education.  That case involved a public high school teacher who was discharged after publishing a letter in a local newspaper that was critical of the board of education’s budget proposals (which had been twice rejected by local voters).  The Court held that public employees are protected by First Amendment free speech rights when expressing views on matters of public concern when they are speaking in their capacity as private citizens, but such protection is not absolute: the court must conduct a balancing test weighing the employee’s free speech rights against the employer’s legitimate concerns about being able to carry out governmental functions.  Speech that results in disruption of those functions may lose its constitutional protection.  Subsequent rulings have clarified that when a public employee is speaking in an official capacity, he is speaking for the government and can be disciplined or discharged when his speech contradicts government policy.

Cochran filed a nine-count complaint against the city and Mayor Reed, raising various claims under the 1st and 14th Amendments.  Although Judge May dismissed some of those claims, and ultimately found that Mayor Reed enjoyed qualified immunity from personal liability to Cochran, she concluded that his complaint alleged facts sufficient to maintain several of his 1st Amendment claims as well as one of his 14th Amendment Due Process claims.

Cochran’s complaint leads off with a claim that he was fired in retaliation for constitutionally protected speech.  Judge May determined that Cochran’s speech satisfied the requirement that it be on a matter of public concern and that he was speaking as a private citizen (even though his book’s “About the Author” section identifies him as Atlanta’s Fire Chief), making his claim subject to the Supreme Court’s Pickering balancing test.  The City argued that the AFRD has a “need to secure discipline, mutual respect, trust and particular efficiency among the ranks due to its status as a quasi-military entity different from other public employers,” and thus that Cochran’s “interest in publishing and distributing a book ‘containing moral judgment about certain groups of people that caused at least one AFRD member enough concern to complaint to a City Councilmember'” could not outweigh the City’s interests in securing discipline and efficiency.

However, Judge May pointed out that on a motion to dismiss she is to evaluate the complaint based solely on the plaintiff’s allegations, and Cochran had alleged that his book did not threaten the City’s ability to administer public services and was not likely to do so.  Cochran claimed that the book did not interfere with AFRD internal operations, and that he had not told any AFRD employee that complying with his teachings or even reading his book “was in any way relevant to their status or advancement” within the Department.  Thus, Judge May could not find at this stage in the case as a matter of law “that Defendants’ interests outweigh Plaintiff’s First Amendment freedom of speech interests.  However,” she continued, “the factual development of this case may warrant a different conclusion.”

Cochran’s second count claims unconstitutional viewpoint discrimination, focusing particularly on a section of the City Code that requires department heads to obtain prior written approval from the city’s Board of Ethics before “engaging in the provision of services for private interests for remuneration,” which he had not done.  Cochran protested the self-publication of a book did not come within this policy. The City claimed he had no standing to challenge this provision since he had never applied for written permission, but Judge May disagreed, rejecting the City’s motion to dismiss this count on the basis of standing.

Cochran’s third count alleges violation of his religious liberty rights, claiming he was terminated because he expressed his religiously-based viewpoint.  The City’s response was that he failed to allege that his religion compelled him to publish his views while serving as Fire Chief without obtaining prior written approval or to distribute the book to various city employees.  Judge May ruled that such allegations were not necessary to state a religious liberty claim, and that Cochran’s allegations “raise a plausible inference that Plaintiff sincerely held the religious beliefs that he contends were the reason for his firing,” so this claim would not be dismissed.  Similarly, Judge May found that Cochran adequately alleged facts to support his fourth claim, that the city’s action violated his 1st Amendment right to freedom of association “by terminating him for expressing religious beliefs in association with his church.”  However, May found insufficient Cochran’s allegations to support his claim of a violation of the 1st Amendment Establishment Clause, stating that at the hearing on the motion to dismiss “it became clear that although the Complaint contains an Establishment Clause claim, the exact contours of that claim. . . are unclear,” and that it appeared to be duplicative of other claims.  Although May dismissed this claim, she granted leave to Cochran to file an amended claim appropriately raising Establishment Clause issues.

Turning to Cochran’s Equal Protection Claim under the 14th Amendment, May found that Cochran had failed to allege sufficient facts to sustain this claim.  Most significantly, he had failed to identify a “comparator” in order to establish discrimination.  A “comparator” is somebody similarly situated to the Plaintiff who had articulated the opposite point of view without incurring adverse action from the City.  Cochran pointed to Mayor Reed, who had publicly articulated opposition to Cochran’s views, but the judge pointed out that Reed, as the elected chief executive of the city, was not similarly situated to Cochran, an appointed department head.  “As the Mayor,” wrote Judge May, “Reed is Plaintiff’s superior. . .  As the City’s ultimate decision-maker, Reed could not be similarly situated to Plaintiff, who is subject to Reed’s decision-making power.”  She also pointed out that Reed had not “ever tried to publish a book on morality that was approved by the City or even that Reed is from a different religious group from Plaintiff.  At bottom, the Court finds that Reed is too dissimilar to serve as a similarly situated comparator for numerous reasons.”  It was not sufficient for Cochran to allege that “numerous City employees” who were similarly situated to him were treated differently in this regard.  It appears that he is the only appointed City department head who had published a work of this kind.

Judge May dismissed Cochran’s claim that the City’s policy about outside work by city officials that was cited in support of his discharge was unduly vague, pointing out that prior similarly challenges to the policy had been rejected by the 11th Circuit Court of Appeals, which is binding on Georgia federal courts.  She also found that the public comments by Mayor Reed in connection with this controversy were not sufficiently personally “stigmatizing” of Cochran to sustain a “liberty interest” claim under the Due Process Clause.  However, she refused to dismiss a procedural due process claim, finding that the ordinances cited by the City in its briefs “do not establish that Plaintiff lacks a property interest in his employment.”  Under the 14th Amendment, the Courts have held that a public employee with a property interest in his job may not be deprived of that job in the absence of fair procedures, which Cochran claims he was not accorded in this case, where the decision to fire him was made unilaterally by the mayor.

As to personal liability by Mayor Reed, the ultimate decision-maker on Cochran’s discharge, Judge May found that it would not necessarily be clear to the Mayor that his actions were unconstitutional while exercising the discretionary function to discharge his Fire Chief, since the ultimate determination of that will rest on the court’s application of the Pickering balancing test.  Depending how that weighing turns out, the City may be held liable, but a municipal official in the position of the Mayor exercising a discretionary function of his office would not unless the outcome was clearly established as a matter of law.  The courts have developed this qualified immunity doctrine to avoid stifling the ability of public officials to exercise discretionary functions in situations where there is not a definite constitutional ban in place.

Ultimately, the question confronting Judge May is whether the Atlanta city administration is required to keep in office an appointed department head who has published views that are out of synch with the City’s policies.  If Cochran were a rank and file employee, he might well win some of his claims.  But as a department head with supervisory authority over a major public safety agency, he will confront significant difficulty in arguing that the elected officials responsible to the voters are constitutionally required to keep him in office, as Judge May intimated in ruling on his first free speech claim.

Nebraska Court Holds Anti-Gay Adoption/Foster Licensing Policy Violates 14th Amendment

Posted on: August 14th, 2015 by Art Leonard No Comments

Lancaster County, Nebraska, District Judge John A. Colborn ruled on August 5, 2015, that the state’s policy for approving adoptions of state wards and foster care licenses for same-sex couples violated the rights of gay people and same-sex couples under the 14th Amendment of the U.S. Constitution.  Ruling in Stewart v. Heineman, the court invoked the U.S. Supreme Court’s decision in Obergefell v. Hodges in support of its ruling, but without explicitly stating why Obergefell compels this result.

 

The lawsuit was initiated in 2013 by three same-sex couples who were told during the period 2010-2012 that they could not be certified to be foster parents because of a policy adopted by the state’s Department of Health and Human Services.  In January 1995, DHHS issued Administrative Memorandum #1-95, which directs that foster home licenses may not be issued to “persons who identify themselves as homosexuals” or “unrelated, unmarried adults residing together.”  DHHS indicated at the same time that the new policy would not affect existing foster placements or placements with a child’s relative, and apparently the intent was to institute a “don’t ask, don’t tell” policy under which staff would not ask about sexual orientation or marital status apart from inquiries already included in the licensing application and home study forms. 

 

In the summer of 2012, the former Director of the Division of Children and Family Services (CFS), Thomas Pristow, told Service Area Administrators and the Deputy Director of the agency that they should no longer follow Memo #1-95, and that DHHS could place children with gay singles or same-sex couples, provided that he personally approve any such placement.  This was after the three plaintiff couples in this case had been turned down under the policy expressed in Memo #1-95.  The memo was subsequently removed from the agency’s website in February 2015 (after a federal district court had ruled that the state’s same-sex marriage ban was unconstitutional) but the policy was  never formally rescinded in writing, Memo #1-95 does not appear on the DHHS website’s page for rescinded or replaced memos, and it has not been replaced with a new written policy statement.  Indeed, the current website makes no reference to a DHHS policy on gay individuals or unrelated, unmarried couples.  According to evidence introduced by the plaintiffs, some consisting of statements by agency officials at operational levels, it appears that there is considerable confusion within the agency and among agency contractors about the status of this policy, and that gay couples continue to be routinely denied certification as foster parents.

 

Judge Colborn rejected the agency’s contention that removal of the policy from the website and the agency’s verbal assurance to the judge that the policy was no longer in place was sufficient to make this case go away.  Indeed, Judge Colborn found as a matter of fact that regardless of the memo’s absence or presence on the website, there is evidence that the agency, despite its disavowals, imposes a higher level of scrutiny on gay and same-sex couple applicants than on other applicants.  Indeed, a non-gay individual or traditionally-married applicant goes through two low levels of scrutiny before final approval, while gay or same-sex couple applicants go through five tiers of scrutiny culminating in personal review by the head of the agency.  Clearly there is an unequal process.

 

First the court addressed the odd posture of agency policy concerning Memo #1-95.  “The current stated policy of DHHS is wholly inconsistent with Memo #1-95,” wrote the judge.  “Memo #1-95 has not been rescinded or replaced with the current policy.  A governmental agency cannot adopt a new policy, and not rescind or replace an Administration Memorandum that is wholly inconsistent with the current policy.  It is the determination of the court that Memo #1-95 should be rescinded, and ordered stricken or replaced with the current policy, for the reason that it is not consistent with the current policy of DHHS.  Additionally, pursuant to the holding of the United States Supreme Court in Obergefell v. Hodges, the court must hold that Memo #1-95 should be stricken as it violates the Equal Protection and Due Process Clauses.”

 

Turning to the challenge to the current unwritten policy described in agency testimony, the court found further constitutional flaws.  “Defendants have not argued, nor have they identified, any legitimate governmental interest to justify treating gay and lesbian individuals and gay and lesbian couples differently than heterosexual individuals and heterosexual couples in this review process,” wrote Judge Colborn.  In fact, he noted, the agency claimed it wasn’t treating them differently, but the testimony belied that assertion. 

 

The agency made the laughable argument that the extra level of scrutiny on approving gay applicants was intended to “prevent bias against those persons.”  What makes this laughable was that only those applications approved at lower levels are subjected to review at higher levels within the agency.  “It is not logical that a procedure could prevent bias when it does not deal with placements that were rejected, or not recommended, during one of the previous four stages of review,” wrote the judge.  “If the Defendants wanted to prevent bias against gay and lesbian couples, as well as unmarried adults residing together, Defendants would review denials of placements rather than approvals of placements.” 

 

On its face, the extra tiers of review process appears designed to screen out gay applicants, not to prevent bias against them.  The court found that the agency had acknowledged that there was “no child welfare interest advanced by treating gay and lesbian persons differently from heterosexual persons in decisions regarding licensing or placement in foster or adoption homes.”  That being the case, once again the court deemed the policy inconsistent with the requirements of Obergefell v. Hodges.

 

The court ruled that the agency must treat gay and non-gay applicants the same, and same-sex and different-sex couples the same.  Of course, in the post-Obergefell world, the state and its agencies must treat married same-sex couples the same as married different-sex couples as a matter of constitutional law. 

 

The court ordered the agency to formally rescind Memo #1-95, and to replace it with a memo stating the constitutionally appropriate version of the current policy. The absence of a written policy clearly creates confusion within the agency and may provide too much unguided discretion to lower level agency functionaries to discriminate against gay applicants. The court enjoined the agency from “applying a categorical bar to gay and lesbian individuals, gay and lesbian couples, and unrelated, unmarried adults residing together seeking to be licensed as foster care parents or to adopt a state ward.”  The court ordered that the same review processes be used for all applicants, and provided that “costs of this action are taxed to Defendants.” 

 

Given the state’s reluctant acquiescence to Obergefell and the stated opposition by Governor David Heineman to gay rights in general and gay parenting in particular, it seemed likely that the state would pursue an appeal of Judge Colborn’s decision. 

 

6th Circuit: Obergefell Decision Irrelevant to Equal Protection Claim

Posted on: August 5th, 2015 by Art Leonard No Comments

A panel of the U.S. 6th Circuit Court of Appeals ruled on August 3 that the Supreme Court’s recent marriage equality decision, Obergefell v. Hodges, is irrelevant to an equal protection claim asserted against Cleveland, Ohio, police officers regarding the manner in which they arrested two gay men on April 8, 2011.  Referring to the “law-of-the-circuit” doctrine, Circuit Judge Alice M. Batchelder relied on pre-Obergefell 6th Circuit precedents to apply the “rational basis” test and find that even if plaintiffs’ counsel had not waived their equal protection claim, the police had a rational basis for refusing to let them wear pants for the ride to the police station and the booking process.  One member of the panel, Circuit Judge Jeffrey Sutton, dissented from this part of the ruling, but not on the merits.  Sutton found that the court should have ruled that the equal protection issue was waived by plaintiff’s counsel at oral argument and thus should not have been addressed by the court.

Steven Ondo and Jonathan Simcox, roommates, were returning home after several hours of drinking at 2:00 AM on April 2, 2011.  They “got into a heated argument outside their apartment building.”  A neighbor came out to confront them about the noise, and Simcox told him to “fuck off.”  “An altercation ensued between the three men,” wrote Judge Batchelder, “during which the neighbor identified himself as an off-duty police officer.”  Evidently the neighbor called the precinct, because later that night the police came and arrested the plaintiffs in their apartment, resulting in them spending two nights in jail.  The police followed up on the altercation with the off-duty officer, getting arrest warrants against Ondo and Simcox for “felonious assault on a police officer,” and a SWAT team showed up at their apartment building at 7:00 AM on April 8 to execute the warrant.  Ondo and Simcox were not dressed at the time, wearing only boxer shorts.  They allege that the police used homophobic slurs and when they asked to be allowed to put on pants, the officers said “faggots don’t wear pants in jail.”  Further, they claimed that one officer said “It’s a house full of fags here.”  They also allege that they were dragged down to the police station in their underwear and not given jumpsuits to wear until well after they were booked, an allegation that the trial judge found to be contradicted by other evidence.

They filed their 42 USC 1983 civil rights lawsuit against the City of Cleveland and 17 police officers in January 2012, but their complaint was deficient in specific factual allegations against specific officers and even an amended complaint fell short on this.  The City got several of the defendants dismissed from the case so that it was narrowed down to the SWAT team members, and then moved for summary judgment.  Responding to the s.j. motion, the plaintiffs alleged further facts trying to bolster their case in affidavits which made the allegations based on “personal knowledge and belief,” without specifying which facts were based on “personal knowledge” and which facts were based on “belief.”  The City moved to strike the affidavits and the court granted the motion, on the ground that only factual assertions based on personal knowledge were sufficient to ground the plaintiffs’ equal protection claim against specific police officers.  Then the court granted the City’s summary judgment motion.

A major part of the 6th Circuit’s opinion was devoted to explaining why the trial court was correct to strike the affidavits, and to examine the City’s further argument that plaintiffs had abandoned many of their claims at oral argument.  Ultimately, in the view of the majority of the panel, plaintiffs’ counsel had conceded at argument that if the Court of Appeals upheld the trial judge’s decision to strike the affidavits, the case was basically over, but, wrote Judge Batchelder, “Regardless of our stance on abandonment, on the remaining record the equal protection claim fails as a matter of law,” and this is where the court found that Obergefell made no difference to the analysis.  Plaintiffs’ counsel had stated at argument that the entire equal protection claim boiled down to the contention that the police refused to let the men wear pants over their boxer shorts because they were gay, and this constituted unconstitutional unequal treatment.  There was also a state law allegation of infliction of emotional distress.

Plaintiffs argued that “state actions involving homosexuals should trigger some form of heightened scrutiny under the Equal Protection Clause.”  Wrote Judge Batchelder, “First, Plaintiffs cannot demonstrate that the state action of which they complain burdens a fundamental right.  When the Supreme Court held that state laws against sodomy violate the Due Process Clause, it did so using the language of rational-basis review, rather than any form of heightened scrutiny,” citing Lawrence v. Texas.  “The Court did not hold that the Constitution includes a fundamental right to homosexual conduct.  Whether the Court’s recent decision in Obergefell v. Hodges recasts engaging in homosexual acts as a fundamental right is irrelevant, because the decision by the police relevant here does not impair Plaintiffs’ ability to engage in such conduct.  Nor can Plaintiffs establish that homosexuals are a suspect or quasi-suspect class.  The Court has never held that homosexuals satisfy the criteria for such classification.”  The court cited two cases for this assertion, neither of which deals with sexual orientation claims. “The Supreme Court has not recognized any new constitutionally protected classes in over four decades,” she continued, “and instead has repeatedly declined to do so.  Moreover, the Court has never defined a suspect or quasi-suspect class on anything other than a trait that is definitively ascertainable at the moment of birth, such as race or biological gender.  In Obergefell, the Court was explicitly asked by the petitioners and various amici to declare that homosexuals are a specially protected class, and thus that government actions that disfavor homosexuals are subject to heightened scrutiny.  But the Court held only that the Equal Protection Clause was violated because the challenged statutes interfered with the fundamental right to marry, not that homosexuals enjoy special protections under the Equal Protection Clause.”

Since the 6th Circuit has, in its pre-Obergefell rulings, always applied rational basis review to sexual orientation discrimination claims, the court decided that under the “law of the circuit” doctrine, it must do so in this case.  Applying that approach here, the court found that the police had provided an adequate basis for their decision to arrest the men and take them to the police station in their underwear — concern for the officers’ safety, as the two men were agitated and were being arrested for assaulting a police officer — which, said the court, “is presumed valid and rationally related to a legitimate public interest.  Therefore,” wrote Batchelder, “Plaintiffs’ grievance regarding being kept in their boxer shorts until the police could issue them jumpsuits, even if motivated in part by sentiments regarding homosexual behavior, still does not violate the Constitution.”

Judge Sutton, concurring in the court’s decision to affirm the district court’s grant of summary judgment, wrote that it was unnecessary to take on the equal protection issue, as the plaintiffs’ counsel at oral argument had waived the claim by conceding that if the decision to strike the affidavits was upheld the constitutional claim would have to be dismissed.  Judge Sutton, of course, was the author of the 6th Circuit’s opinion that was reversed by the Supreme Court in Obergefell v. Hodges.  In that opinion, he had found that the plaintiffs’ equal protection claim was not subject to heightened scrutiny, for essentially the same reasons that Judge Batchelder articulated in the panel opinion in this case.

Plaintiffs were represented by Sara Gedeon on the appeal.

 

Justice Stevens on the Obergefell Decision

Posted on: August 5th, 2015 by Art Leonard No Comments

In a speech delivered at an American Bar Association function in Chicago on July 31, 2015, retired U.S. Supreme Court Justice John Paul Stevens had this to say about the Supreme Court’s marriage equality decision, Obergefell v. Hodges, 135 S. Ct. 2584 (2015) (from the Justice’s prepared text):

“Probably the most significant opinion announced during the Term was Justice Kennedy’s explanation for holding that the Constitution protects an individual’s right to marry a person of the same sex.  I was surprised by his decision to rely primarily on a substantive due process rationale rather than the Equal Protection Clause but, after reflection, I am persuaded that he was wise to do so.  The difference between categories of couples capable of producing children and those completely unable to do so surely provides a rational basis for treating the two categories differently, but the substantive due process doctrine is more appropriate for an all-or-nothing analysis.  The right to marry — like the right to decide whether to have an abortion, or the right to control the education of your children – fits squarely within the category of liberty protected by the Due Process Clause of the 14th Amendment.  Just as Potter Stewart’s reliance on substantive due process in Roe v. Wade, 410 U.S. 113 (1973), and Justice Harlan’s and Justice White’s reliance on the substantive content of the work ‘liberty’ in Griswold v. Connecticut, 381 U.S. 479 (1965), were far better explanations for those two correct decisions than the concept of ‘privacy’ developed by the majority opinions, I am persuaded that a fair reading of the word ‘liberty’ best explains the real basis for the Court’s holding in the marriage case.

“The point is strongly reinforced by the dissenting opinions which rely heavily on earlier decisions rejecting the substantive due process analysis in Lochner v. New York, 198 U.S. 45 (1905).  But those dissents incorrectly assume that our cases overruling Lochner rejected the entire doctrine of substantive due process, whereas in fact they merely rejected its application to economic regulation.  Indeed, it is ironic that all of today’s dissenters (except Justice Thomas) who accuse the majority of improperly resurrecting Lochner, came much closer to committing that sin themselves when they decided to rely on substantive due process as the basis for their conclusion that the Second Amendment applies to the States.  It borders on the absurd to assume that the word liberty does not include one’s right to choose a spouse, but does include a right to possess a firearm in one’s home.  Because today’s dissents may one day persuade their authors to reconsider their own earlier reliance on substantive due process, I think those dissents may have the unintended consequence of lending support for the position advocated in the final chapter of my book.

“I endorse the Court’s holding that the Due Process Clause of the 14th Amendment protects an individual’s right to choose his or her spouse but I remain unpersuaded that that Clause also protects an individual’s right to use a gun.  The dissenters have things backward when they argue that it protects the latter but not the former.”

I am rather surprised to read Justice Stevens’ view that the equal protection issue in the marriage equality case was between categories defined by “couples capable of producing children” and “those completely unable to do so.”  After all, many different-sex couples are either incapable of producing children or uninterested in doing so, yet they are allowed to marry, while many same-sex couples are capable of producing children (with the assistance of a sperm donor or a surrogate).  Both kinds of couples are known to acquire children through adoption as well.  To me, the fact that many, but not all, different-sex couples can have children without the assistance of a third party, makes little difference, if one’s concern is about the raising of children, since different-sex and same-sex couples raising children are similarly situated with respect to one of the main reasons why the state fosters the institution of marriage with its reciprocal obligations.  And it seems clear that the willingness of the state to allow different-sex couples to marry without proof of fertility or intention to have children means that the ability to procreate is not a sine qua non of the right to marry.  Be that as it may, however, the Court’s decision to use substantive due process as its principal doctrinal tool in Obergefell meant that it could decide that case without having to commit itself on the question whether sexual orientation is a classification requiring heightened scrutiny of challenged government policies in discrimination cases.  If avoiding that issue made it possible to have a solid five-member majority supporting one opinion — as Justice Ruth Bader Ginsburg’s recent comments suggest – then it was probably worth while.  But what it means is that Obergefell, as a practical matter, is not relevant as an equal protection precedent for any issue other than the right to marry and to have marriages recognized and accorded full rights by the states, since it was decided under the fundamental rights branch of equal protection doctrine rather than the suspect classification branch.  This is well illustrated by the 6th Circuit’s opinion in Ondo v. City of Cleveland, 2015 Westlaw 4604860 (Aug. 3, 2015), about which I will be writing shortly.

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

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

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

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

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

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

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

Unanimous 7th Circuit Panel Strikes Down Wisconsin and Indiana Same-Sex Marriage Bans

Posted on: September 4th, 2014 by Art Leonard No Comments

Less than two weeks after roughing up attorneys for the states of Wisconsin and Indiana in a heated oral argument, a three-judge panel of the Chicago-based U.S. Court of Appeals for the 7th Circuit issued a unanimous decision in Baskin v. Bogan, 2014 WL 4359059  (September 4, 2014), striking down the bans on same-sex marriage in those states.  Writing for the panel, Circuit Judge Richard Posner, one of Ronald Reagan’s earliest judicial appointees in 1981, decisively rejected all the states’ arguments in support of their anti-marriage laws, stating that “the grounds advanced by Indiana and Wisconsin for their discriminatory policies are not only conjectural; they are totally implausible.”

With stays pending appeal in effect in both states, the 7th Circuit ruling did not effect any immediate practical change.  Both states promptly signified that they would petition the Supreme Court for review.

Judge Posner’s forty-page opinion was telegraphed by his questioning during the oral argument, for the issues that he raised and pressed repeatedly dominate his written analysis.  His first questions to the attorney for Indiana concerned the welfare of children — the children being raised by same-sex couples in Indiana whom the state prohibits from marrying and whose out-of-state marriages are denied legal recognition.  And his opinion starts in much the same way: “Formally these cases are about discrimination against the small homosexual minority in the United States.  But at a deeper level, as we shall see, they are about the welfare of American children.  The argument that the states press hardest in defense of their prohibition of same-sex marriage is that the only reason government encourages marriage is to induce heterosexuals to marry so that there will be fewer ‘accidental births,’ which when they occur outside of marriage often lead to abandonment of the child to the mother (unaided by the father) or to foster care.  Overlooked by this argument is that many of those abandoned children are adopted by homosexual couples, and those children would be better off both emotionally and economically if their adoptive parents were married.”

During the oral argument, all three judges on the panel (Posner being joined by Obama appointee David Hamilton and Clinton appointee Ann Claire Williams) were skeptical about treating this as a “fundamental right to marry” case, expressing concern about how such a right could be described in a way that would not open up arguments about a constitutional right to polygamy or incest.  Unlike the panel majorities in the 4th and 10th Circuits, who based their marriage equality rulings on the fundamental rights theory, the 7th Circuit panel preferred to take the equal protection route.  That yielded a double hit from this opinion: Not only did the court hold that the states had no rational basis for denying marriage to same-sex couples, but it also ruled, in line with a decision earlier this year by the San Francisco-based 9th Circuit, that claims of anti-gay discrimination by the government are subject to heightened scrutiny, placing the burden on the government to show that its discriminatory law significantly advances an important government policy.

Most importantly, however, Posner’s opinion for the panel is sheer fun to read because of his plain-speaking, cut-through-the-cant style of dealing with ridiculous arguments.  When he finds an argument ridiculous, he does not politely abstain from commenting, in the manner of some of his more restrained judicial colleagues.  He cuts to the chase and calls ’em as he sees ’em.  Herewith some choice examples:

“Our pair of cases is rich in detail but ultimately straight-forward to decide.  The challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction — that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended — is so full of holes that it cannot be taken seriously.”

“Because homosexuality is not a voluntary condition and homosexuals are among the most stigmatized, misunderstood, and discriminated-against minorities in the history of the world, the disparagement of their sexual orientation, implicit in the denial of marriage rights to same-sex couples, is a source of continuing pain to the homosexual community.”

“It is apparent that groundless rejection of same-sex marriage by government must be a denial of equal protection of the laws, and therefore that Indiana and Wisconsin must to prevail establish a clearly offsetting governmental interest in that rejection.  Whether they have done so is really the only issue before us, and the balance of this opinion is devoted to it — except that before addressing it we must address the states’ argument that whatever the merits of the plaintiffs’ claims, we are bound by Baker v. Nelson to reject them. . .  Baker was decided in 1972 — 42 years ago and the dark ages so far as litigation over discrimination against homosexuals is concerned.  Subsequent decisions such as Romer v. Evans, Lawrence v. Texas, and United States v. Windsor are distinguishable from the present two cases but make clear that Baker is no longer authoritative.  At least we think they’re distinguishable.  But Justice Scalia, in a dissenting opinion in Lawrence, joined by Chief Justice Rehnquist and Justice Thomas, thought not.  He wrote that ‘principle and logic’ would require the Court, given its decision in Lawrence, to hold that there is a constitutional right to same-sex marriage.”

Nothing like enlisting Scalia on your side in a gay rights decision. . .

After extensively criticizing Indiana’s “channeling-procreation” argument and pointing out its inconsistency with the state’s convoluted rules concerning marriages between elderly first cousins, Posner focused on the “irresponsible procreation” argument, and observed:  “Indiana’s government thinks that straight couples tend to be sexually irresponsible, producing unwanted children by the carload, and so must be pressured (in the form of governmental encouragement of marriage through a combinations of sticks and carrots) to marry, but that gay couples, unable as they are to produced children unwanted or wanted, are model parents — model citizens really — so have no need for marriage.  Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry.  Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry.  Go figure.”

He also points out that if Indiana and Wisconsin are trying to reduce out-of-wedlock births by denying marriage to same-sex couples, their strategy is not working, citing statistics showing the rate of children born in such circumstances went up in each state after they adopted explicit bans on same-sex marriage.  He also pointed out that gay couples are more likely to adopt children than straight couples, and many of those children will be the out-of-wedlock children surrendered for adoption by single mothers.  “If the fact that a child’s parents are married enhances the child’s prospects for a happy and successful life, as Indiana believes not without reason,” he wrote, “this should be true whether the child’s parents are natural or adoptive.  The state’s lawyers tell us that ‘the point of marriage’s associated benefits and protections is to encourage child-rearing environments where parents care for their biological children in tandem.’ Why the qualifier ‘biological’?  The state recognizes that family is about raising children and not just about producing them.  It does not explain why the ‘point of marriage’s associated benefits and protections’ is inapplicable to a couple’s adopted as distinct from biological children.”

He suggested that letting same-sex couples raising adopted children marry would provide emotional comfort to their children.  “Suppose such a child comes home from school one day and reports to his parents that all his classmates have a mom and a dad, while he has two moms (or two dads, as the case may be).  Children, being natural conformists, tend to be upset upon discovering that they’re not in step with their peers.  If a child’s same-sex parents are married, however, the parents can tell the child truthfully that an adult is permitted to marry a person of the opposite sex, or if the adult prefers as some do a person of his or her own sex, but that either way the parents are married and therefore the child can feel secure in being the child of a married couple.  Conversely, imagine the parents having to tell their child that same-sex couples can’t marry, and so the child is not the child of a married couple, unlike his classmates.”

Judge Posner took apart the argument by Wisconsin’s lawyer that “tradition” justifies the marriage ban.  “Tradition per se has no positive or negative significance,” he wrote.  “There are good traditions, bad traditions pilloried in such famous literary stories as Franz Kafka’s ‘In the Penal Colony’ and Shirley Jackson’s ‘The Lottery,’ bad traditions that are historical realities such as cannibalism, foot-binding, and suttee, and traditions that from a public-policy standpoint are neither good nor bad (such as trick-or-treating on Halloween).  Tradition per se therefore cannot be a lawful ground for discrimination — regardless of the age of the tradition.”  He went on to quote the same passage from Oliver Wendell Holmes that the late Justice Harry Blackmun cited in his dissent from the infamous 1986 Supreme Court sodomy case, Bowers v. Hardwick: “Holmes thought it ‘revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV.”  Posner helpfully added that the English King Henry IV died in 1413.  To show the age of the tradition underlying this marriage ban, he went on to quote Leviticus 18:22, and concluded on this point, “If no social benefit is conferred by a tradition and it is written into law and it discriminates against a number of people and does them harm beyond just offending them, it is not just a harmless anachronism; it is a violation of the equal protection clause.”

Responding to Wisconsin’s argument about “thousands of years of collective experience” showing that different-sex marriage is “optimal for the family, society, and civilization,” Posner pointed out that Wisconsin provided no evidence in support of this claim, and then he listed several countries that today allow polygamy, adding, in a little flourish, “parts of Utah.”  “But suppose the assertion is correct?” he asked.  “How does that bear on same-sex marriage?  Does Wisconsin want to push homosexuals to marry persons of the opposite sex because opposite-sex marriage is ‘optimal?’  Does it think that allowing same-sex marriage will cause heterosexuals to convert to homosexuality?  Efforts to convert homosexuals to heterosexuality have been a bust; is the opposite conversion more feasible?”

As to the contention that allowing same-sex marriage will harm society, Posner pointed to estimates of the gay population ranging from 1.5% to 4%, and concluded: “Given how small the percentage is, it is sufficiently implausible that allowing same-sex marriage would cause palpable harm to family, society, or civilization to require the state to tender evidence justifying its fears; it has provided none.”  He pointed out that the states had provided no evidence that “any heterosexuals have been harmed by same-sex marriage,” and observed that even though some people might be “distressed by the idea or reality of such marriage,” this could not count as a harm that would justify the ban.  Even though many people disapproved of or were offended by interracial marriage and sodomy, the Supreme Court struck down laws against both.

As to the argument by Indiana and Wisconsin that the popularly enacted marriage amendments should enjoy some immunity from constitutional attack, Posner responded: “Minorities trampled on by the democratic process have recourse to the courts; the recourse is called constitutional law.”

Although the court found no rational basis for the marriage bans, and thus could have avoided ruling on whether sexual orientation discrimination merits heightened scrutiny, Posner took that issue on, rejecting the states’ arguments that gay people are a political powerful group that needs no help from the courts.  The marriage amendment passed in Wisconsin would surely argue otherwise.  Posner emphasized the history of anti-gay discrimination — which he characterized during oral argument as “savage”, the extensive scientific literature on the issue of immutability, and the lack of relevance of sexual orientation to a person’s ability to contribute to society, finding that all the factors for finding a “suspect classification” applied to sexual orientation.  While not strictly necessary to support the court’s ruling, this finding may be very useful in future cases in the 7th Circuit challenging discriminatory state policies.

With this opinion, three federal courts of appeals have ruled in favor of marriage equality, and it is widely predicted that the 9th Circuit will add to that number after hearing arguments on September 8.  Less certain is the outcome in the Cincinnati-based 6th Circuit, which heard arguments weeks before the 7th Circuit but has yet to issue its opinion.  (Posner is a notoriously fast writer of judicial opinions, and this one bears the hallmarks of haste, including one page where some lines of text seem to have been omitted from the opinion as first released by the court.)  Appeals are now pending in the 5th Circuit, where Texas has appealed a pro-marriage equality ruling and plaintiffs are about to appeal an absurdly reasoned federal anti-marriage ruling from Louisiana.  On the same day the 7th Circuit ruled, Florida Attorney General Pamela Bondi announced that she had filed a notice of appeal with the 11th Circuit from a recent federal court marriage equality ruling in that state.  There will be no marriage equality rulings from the 2nd or 3rd Circuits, as every state in both circuits already allows same-sex couples to marry, either by legislation or court order.  The Boston-based 1st Circuit might still be heard from; even though all the states in the circuit have marriage equality, its jurisdiction also covers Puerto Rico, where a lawsuit challenging the commonwealth’s marriage ban is pending.  The 8th Circuit, where cases are pending in several district courts, has yet to be heard from in the current round of litigation, although it rejected a challenge to Nebraska’s marriage amendment in 2006.   The 7th Circuit’s ruling brings closer the possibility that marriage equality might be achieved nationwide through circuit court opinions without Supreme Court intervention, if that court were to let petitions accumulate and denying them all once the boards have been swept clean.  But one dissenting circuit would virtually guarantee Supreme Court review.

Attorneys from Lambda Legal and the Indiana and National ACLU argued the case for plaintiffs before the 7th Circuit, while the states of Indiana and Wisconsin were represented by the Indiana Solicitor General and a Wisconsin Assistant Attorney General.  It seems likely that the Republican governors of both states will petition the Supreme Court for review, although Wisconsin’s governor has been less outspoken than Indiana’s in opposition to same-sex marriage.  Wouldn’t it be grand if both read Posner’s extremely persuasive opinion and followed the example of Pennsylvania’s Republican governor in dropping further appeals?