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Posts Tagged ‘petition for certiorari’

Supreme Court May Consider Whether Federal Law Already Outlaws Sexual Orientation Discrimination

Posted on: July 12th, 2017 by Art Leonard No Comments

Lambda Legal has announced that it will petition the Supreme Court to decide whether Title VII of the Civil Rights Act of 1964, which bans employment discrimination because of sex, also bans discrimination because of sexual orientation. Lambda made the announcement on July 6, when the U.S. Court of Appeals for the 11th Circuit, based in Atlanta, announced that the full circuit court would not reconsider a decision by a three-judge panel that had ruled on March 10 against such a claim in a lawsuit by Jameka K. Evans, a lesbian security guard who was suing Georgia Regional Hospital for sexual orientation discrimination.

The question whether Title VII can be interpreted to cover sexual orientation claims got a big boost several months ago when the full Chicago-based 7th Circuit ruled that a lesbian academic, Kimberly Hively, could sue an Indiana community college for sexual orientation discrimination under the federal sex discrimination law, overruling prior panel decisions from that circuit.  The 7th Circuit was the first federal appeals court to rule in favor of such coverage.  Lambda Legal represented Hively in her appeal to the 7th Circuit.

Title VII, adopted in 1964 as part of the federal Civil Rights Act, did not even include sex as a prohibited ground of discrimination in the bill that came to the floor of the House of Representatives for debate. The primary focus of the debate was race discrimination. But a Virginia representative, Howard Smith, an opponent of the bill, introduced a floor amendment to add sex.  The amendment was approved by an odd coalition of liberals and conservatives, the former out of a desire to advance employment rights for women, many of the later hoping that adding sex to the bill would make it too controversial to pass. However, the amended bill was passed by the House and sent to the Senate, where a lengthy filibuster delayed a floor vote for months before it passed without much discussion about the meaning of the inclusion of sex as a prohibited ground for employment discrimination.  (The sex amendment did not apply to other parts of the bill, and the employment discrimination title is the only part of the 1964 Act that outlaws sex discrimination.)

Within a few years both the Equal Employment Opportunity Commission and federal courts had issued decisions rejecting discrimination claims from LGBT plaintiffs, holding that Congress did not intend to address homosexuality or transsexualism (as it was then called) in this law. The judicial consensus against coverage did not start to break down until after the Supreme Court’s 1989 decision on Ann Hopkin’s sex discrimination lawsuit against Price Waterhouse.  The accounting firm had denied her partnership application.  The Court accepted her argument that sex stereotyping had infected the process, based on sexist comments by partners of the firm concerning her failure to conform to their image of a proper “lady partner.”

Within a few years, litigators began to persuade federal judges that discrimination claims by transgender plaintiffs also involved sex stereotyping. By definition a transgender person does not conform to stereotypes about their sex as identified at birth, and by now a near consensus has emerged among the federal courts of appeals that discrimination because of gender identity or expression is a form of sex discrimination under the stereotype theory.  The Equal Employment Opportunity Commission changed its position as well, following the lead of some of the court decisions, in 2012.

Advocates for gay plaintiffs also raised the stereotype theory, but with mixed success. Most federal circuit courts were unwilling to accept it unless the plaintiff could show that he or she was gender-nonconforming in some obvious way, such as effeminacy in men or masculinity (akin to the drill sergeant demeanor of Ann Hopkins) in women.  The courts generally rejected the argument that to have a homosexual or bisexual orientation was itself a violation of employer’s stereotypes about how men and women were supposed to act, and some circuit courts, including the New York-based 2nd Circuit, had ruled that if sexual orientation was the “real reason” for discrimination, a Title VII claim must fail, even if the plaintiff was gender nonconforming.  Within the past few years, however, several district court and the EEOC have accepted the stereotype argument and other arguments insisting that discrimination because of sexual orientation is always, as a practical matter, about the sex of the plaintiff.  This year, for the first time, a federal appeals court, the Chicago-based 7th Circuit, did so in the Hively case.  A split among the circuits about the interpretation of a federal statute is listed by the Supreme Court in its practice rules as the kind of case it is likely to accept for review.

The Supreme Court has been asked in the past to consider whether Title VII could be interpreted to cover sexual orientation and gender identity claims, but it has always rejected the invitation, leaving in place the lower court rulings.

However, last year the Court signaled its interest in the question whether sex discrimination, as such, includes gender identity discrimination, when it agreed to review a ruling by the Richmond-based 4th Circuit Court of Appeals, which held that the district court should not have dismissed a sex-discrimination claim by Gavin Grimm, a transgender high school student, under Title IX of the Education Amendments of 1972, which bans sex discrimination by schools that get federal money.  The 4th Circuit held in Grimm’s case that the district court should have deferred to an interpretation of the Title IX regulations by the Obama Administration’s Department of Education, which had decided to follow the lead of the EEOC and federal courts in Title VII cases and accept the sex stereotyping theory for gender identity discrimination claims. Shortly before the Supreme Court was scheduled to hear arguments in this case, however, the Trump Administration “withdrew” the Obama Administration interpretation, pulling the rug out from under the 4th Circuit’s decision.  The Supreme Court then canceled the argument and sent the case back to the 4th Circuit, where an argument has been scheduled for this fall on the question whether Title IX applies in the absence of such an executive branch interpretation.

Meanwhile, the Title VII issue has been percolating in many courts around the country. Here in New York, the 2nd Circuit Court of Appeals has had several recent panel decisions in which the judges have refused to allow sexual orientation discrimination claims because they are bound by earlier decisions of the court to reject them, although in some cases they have said that the gay plaintiff could maintain their Title VII case if they could show gender nonconforming behavior sufficient to evoke the stereotype theory. In one of these cases, the chief judge of the circuit wrote a concurring opinion, suggesting that it was time for the Circuit to reconsider the issue by the full court.  In another of these cases, Zarda v. Altitude Express, the court recently granted a petition for reconsideration by the full bench, appellants’ briefs and amicus briefs were filed late in June, and oral argument has been scheduled for September 26.  The EEOC as well as many LGBT rights and civil liberties organizations and the attorneys general of the three states in the circuit have filed amicus briefs, calling on the 2nd Circuit to follow the 7th Circuit’s lead on this issue.

This sets up an interesting dynamic between the 11th Circuit case, Evans, and the 2nd Circuit case, Zarda.  Lambda’s petition for certiorari (the technical term for seeking Supreme Court review) is due to be filed by 90 days after the denial of its rehearing petition by the 11th Circuit, which would put it early in October, shortly after the 2nd Circuit’s scheduled argument in Zarda.  After Lambda files its petition, the Respondent, Georgia Regional Hospital (perhaps, as a public hospital, represented by the state attorney general’s office), will have up to 30 days to file a response, but this is uncertain, since the hospital failed to send an attorney to argue against Evans’ appeal before the 11th Circuit panel.  Other interested parties who want the Supreme Court to take or reject this case may filed amicus briefs as well.  If Lambda uses all or virtually all of its 90 days to prepare and file its petition, the Supreme Court would most likely not announce whether it will take the case until late October or November.  If it takes the case, oral argument would most likely be held early in 2018, with an opinion expected by the end of the Court’s term in June.

That leaves the question whether the 2nd Circuit will move expeditiously to decide the Zarda case?  Legal observers generally believe that the 2nd Circuit is poised to change its position and follow the 7th Circuit in holding that sexual orientation claims can be litigated under Title VII, but the circuit judges might deem it prudent to hold up until the Supreme Court rules on the Evans petition and, if that petition is granted, the 2nd Circuit might decide to put off a ruling until after the Supreme Court rules.  In that case, there will be no change in the 2nd Circuit’s position until sometime in the spring of 2018, which would be bad news for litigants in the 2nd Circuit.  Indeed, some district judges in the Circuit are clearly champing at the bit to be able to decide sexual orientation discrimination claims under Title VII, and two veteran judges have bucked the circuit precedent recently, refusing to dismiss sexual orientation cases, arguing that the 2nd Circuit’s precedents are outmoded.  A few years ago the 2nd Circuit accepted the argument in a race discrimination case that an employer violated Title VII by discriminating against a person for engaging in a mixed-race relationship, and some judges see this as supporting the analogous argument that discriminating against somebody because they are attracted to a person of the same-sex is sex discrimination.

The 2nd Circuit has in the past moved to rule quickly on an LGBT issue in a somewhat similar situation.  In 2012, cases were moving up through the federal courts challenging the Defense of Marriage Act (DOMA), which had been held unconstitutional by several district courts.  A race to the Supreme Court was emerging between cases from Boston (1st Circuit), New York (2nd Circuit), and San Francisco (9th Circuit).  The Supreme Court received a petition to review the 1st Circuit case, where GLAD represented the plaintiffs.  The ACLU, whose case on behalf of Edith Windsor was pending before the 2nd Circuit, filed a petition with the Supreme Court seeking to leapfrog the district court and bring the issue directly up to the highest court.  After the ACLU filed its petition, the 2nd Circuit moved quickly to issue a decision, and the Supreme Court granted the petition.  Meanwhile, Lambda Legal, representing the plaintiff whose case was pending in the 9th Circuit, had filed its own petition asking the Supreme Court to grant review before the 9th Circuit decided that appeal.  It was all a bit messy, but ultimately the Court granted the ACLU’s petition and held the other petitions pending its ultimate decision, announced on June 26, 2013, declaring DOMA unconstitutional.  If the 2nd Circuit moves quickly, it might be able to turn out an opinion before the Supreme Court has announced whether it will review the Evans case, as it did in 2012 in the DOMA case (although that was just a panel decision, not a ruling by the full circuit bench.)  The timing might be just right for that.

Another concern, of course, is the composition of the Supreme Court bench when this issue is to be decided. At present, the five justices who made up the majority in the DOMA and marriage equality cases are still on the Court, but three of them, Justices Anthony Kennedy (who wrote those opinions), Ruth Bader Ginsburg, and Stephen Breyer, are the three oldest justices, and there have been rumors about Kennedy considering retirement.  Donald Trump’s first appointee to the Court, Neil Gorsuch, filling the seat previously occupied by arch-homophobe Antonin Scalia, immediately showed his own anti-LGBT colors with a disingenuous dissenting opinion issued on June 26 in a case from Arkansas involving birth certificates for the children of lesbian couples, and it seems likely that when or if Trump gets another appointment, he will appoint a person of similar views.  Kennedy, who turns 81 this month, has not made a retirement announcement and has hired a full roster of court clerks for the October 2017 Term, so it seems likely he intends to serve at least one more year.  There is no indication that Ginsburg, 84, or Breyer, 79 in August, plan to retire, but given the ages of all three justices, nothing is certain.

Utah Files Petition for Supreme Court Review of Marriage Equality Ruling

Posted on: August 5th, 2014 by Art Leonard No Comments

Utah Governor Gary Herbert and Attorney General Sean Reyes filed their petition for certiorari with the United States Supreme Court on August 5, seeking review of the 10th Circuit Court of Appeals’ ruling in Kitchen v. Herbert.  At the Supreme Court, the case would be called Herbert v. Kitchen.  The 10th Circuit ruled on June 25 that Utah’s ban on same-sex marriage violated the 14th Amendment by depriving same-sex couples of the fundamental right to marry without sufficient justification.

Utah’s counsel of record, Gene C. Schaerr and John J. Bursch, have put together a certiorari petition that is well-calculated to persuade the Court that they should take the case.  They have position this as a federalism case.  Their main “pitch” to the Court is that the task of defining marriage is left under our constitutional scheme to the states, and that federal courts should not dictate how that term is to be defined.  This is reflected in their wording of the question presented to the Court: “Whether the Fourteenth Amendment to the United States Constitution prohibits a state from defining or recognizing marriage only as the legal union between a man and a woman.”

They build on Justice Samuel Alito’s dissenting opinion in U.S. v. Windsor, in which he posited that there are essentially two conceptions of marriage in the United States today, an adult-centric version and a child-centric version, and that the question which of these concepts to embrace should be left to the political processes of the states under a constitutional scheme which has traditionally left the details of domestic relations law to the states.  They come back numerous times to Justice Anthony Kennedy’s statements in his opinion for the Court in Windsor that the definition of marriage has traditionally been left to the states, and that for almost all of our history that definition has limited marriage to the union of a man and a woman, and they emphasize the Court’s holding in Windsor that the constitutional flaw in Section 3 of the Defense of Marriage Act was that Congress had failed to defer to state decisions to allow or recognize same-sex marriages.

In other words, this Petition does not demonize gay people or employ homophobic language.  It is carefully written to avoid comments that might be deemed hostile, and emphasizes that both the trial judge in this case, Robert Shelby, and the 10th Circuit panel, had specifically found no evidence that Utah’s ban on same-sex marriage was enacted out of animus against gay people.  Rather, they argue, Utah’s ban, most recently enacted as a constitutional amendment a decade ago, was a decision by the people of the state to embrace a child-centric concept of marriage, under which the procreative potential of different-sex marriage was its defining feature and linking children with their biological parents the main purpose.

The purpose of a petition for certiorari is to persuade the Court that there is an important federal question that requires national resolution.  This is an easy argument to make in light of the current litigation situation.  They list all the states in which marriage equality litigation is pending — a very impressive list of 32 states — and also emphasize that hundreds of same-sex couples were married in several of these states when trial courts did not stay their rulings and some time elapsed until appellate courts could restore the “status quo” by staying the decisions pending appeal.  As a result, there is collateral litigation about the validity of those marriages that would be resolved by a ruling on the merits by the Court.

They point out that the Court has already decided recently that marriage equality is a decision requiring its attention, when it granted certiorari in December 2012 in Hollingsworth v. Perry, the Proposition 8 case from the 9th Circuit.  Although the Court ultimately decided that the petitioners’ standing in that case precluded a decision on the merits, it had granted certiorari on the same question presented in this case, so it had already decided recently that a federal court decision striking down a state ban on same-sex marriage presented a pressing federal question.  They also note that the Utah litigation has already generated two stays from the Supreme Court: first, staying Judge Shelby’s decision in January 2014, and then more recently staying Judge Kimball’s decision in Evans v. Herbert concerning the validity of the marriages performed during the interval between Judge Shelby’s decision and the Supreme Court’s stay of that decision.  In issuing a stay, the Court makes an initial determination that the case is likely to be worthy of Supreme Court review, with a possibility that it would be reversed.  Thus, they argue, the Court has already decided, preliminarily, that this is a case that likely merits review.

Finally, they argue that there is a split of authority that needs resolution by the Court.  They note Baker v. Nelson, the Supreme Court’s determination in 1972 that the Minnesota Supreme Court’s rejection of a 14th Amendment claim for marriage equality did not present a substantial federal question, even in light of the Court’s recent ruling against anti-miscegenation laws in Loving v. Virginia. They contend that Baker v. Nelson was still binding and that the 10th Circuit erred in failing to follow that precedent.  They argue that the method used by the 10th Circuit to reach its decision that a fundamental right is involved in this case violates the methodology approved by the Court in Washington v. Glucksberg in 1997, and that it violates the Court’s statement last year in U.S. v. Windsor that the federal government must defer to the states in defining marriage.  Finally, they note a split from the 8th Circuit’s pre-Windsor ruling in Citizens for Equal Protection v. Bruning, which had rejected an equal protection challenge to a same-sex marriage ban in a somewhat different context.

They argue that this case, the first in the door from the current wave of marriage equality litigation, is also the “ideal vehicle” for the Court to use in deciding the marriage equality question.  First, the Court is already familiar with this litigation from considering and granting two stay petitions.  Second, the petitioners are vigorous proponents of the child-centric marriage concept.  Third, the findings of the courts below that Utah did not act out of animus left the Court free to focus on the “pure legal question” rather than being distracted by the animus findings in some of the other pending marriage equality cases.  Fourth, they argue that the courts below were “unusually clear in embracing the adult-centric concept as the basis of their holdings that the fundamental right to marriage includes the right to marry someone of the same sex,” thus highlighting the clash of philosophy that is at stake.  Fifth, they note that unlike some of the other marriage equality cases now pending, this one presents both the issues of the right to marry and of recognition of out-of-state marriages, so it would provide a vehicle to address both issues in one case.  Sixth, there are no standing issues to prevent the Court from reaching the merits.  Seventh, “there is no need to let the issue percolate even more” in light of the litigation history and the U.S. Attorney General’s announcement that he will support the plaintiffs when the Court next takes up the marriage equality issue.  Finally, they emphasized that counsel on both sides of the case “are experienced and capable.”  (Counsel for the Respondents include Peggy Tomsic, who presented a brilliant oral argument at the 10th Circuit, and attorneys from the National Center for Lesbian Rights, whose Legal Director, Shannon Minter, triumphed in the oral argument on marriage equality before the California Supreme Court back in 2008.)

“The harm in waiting is significant,” they argue, “regardless of which side prevails.  Either thousands of couples are being denied their constitutional right to marry, or millions of voters are being disenfranchised of their fundamental right to retain the definition of marriage that has existed since before the People ratified the Constitution.  This Court should grant the petition and answer, once and for all, the important question presented.”

They close with a strong summary of their argument on the merits:  “Promoting marriage as an institution designed to honor every child’s fundamental right to know and be raised by a mother and father does not ban any other type of relationship.  But rewriting the Constitution to impose the Tenth Circuit’s marriage definition on every single State has consequences.  It communicates that the marriage institution is more about adults than children.  It teaches that mothers and fathers are interchangeable and therefore expendable.  And it instills an incentive that citizens seeking social change should use the courts, rather than the democratic process, to achieve it.  For all these reasons, the Court should grant Utah’s petition and reverse the Tenth Circuit.”

Throughout the petition Schaerr and Bursch make arguments and use vocabulary that could be sharply contested by marriage equality proponents.  Their goal in this document, however, is primarily to persuade the Court to take their case, and that should not be difficult in light of the prior certiorari grant in the Proposition 8 case.  One suspects that the Plaintiffs’ response to the Petition will not differ from the Petitioners on that primary goal, since they want a Supreme Court merits ruling that will finally lift the stay and allow same-sex marriages in Utah, but they will sharply counter many of the assertions concerning the merits.

To this reader, the suggestion by Justice Alito, adopted as a central point in this Petition, that there are two conceptions of marriage, adult-centric or child-centric, is absurd.  A strict binary is a distortion of reality and of the stakes in this litigation.  The Petitioners argue as if the decision to deny marriage to same-sex couples has no serious consequences for the children they are raising., and they seek to minimize any such consequence by asserting that relatively few same-sex couples raise children by comparison to opposite-sex couples, which is demographically faulty.  They contradict themselves at numerous points, but most seriously in suggesting that allowing same-sex couples to marry is all about the adults and ignores the interests of their children.  They also argue as if there is not a decade of experience with same-sex marriage in Massachusetts that can serve to challenge their speculations about the impact that allowing same-sex marriage would have on heterosexuals in terms of “signaling” that heterosexual marriage is not important or desirable to provide a setting for raising children.  (There is similarly a decade of experience from Canada and the Netherlands, if that be deemed relevant, as it should be.)  If this is really all about the children, as they argue, then — as virtually all the courts that have considered the matter over the past year have concluded — the interests of the children being raised by same-sex couples must be taken into account, as Justice Kennedy suggested during the oral argument in Hollingsworth v. Perry and forcefully asserted in the Windsor opinion.  They similarly misrepresent the Supreme Court’s marriage precedents by the sin of omission.  They suggest that the Supreme Court’s view of marriage as a constitutional right has been the child-centric view, when in fact the Court has specifically found a constitutional right to marry to be present in the case of prisoners who are not entitled to conjugal visits — a case in which the Court provided a list of adult-centric reasons for finding that right to trump the state’s contrary arguments.

But my reflections now go to the merits; for now the merits are secondary to the question whether the Court will take the case.  This Petition makes a very strong pitch, and it is difficult to believe that it would not attract the votes of at least the four members of the Court necessary to grant review.  By the time they decide whether to grant review, they will also have petitions on file from court clerks in Oklahoma and Virginia, and, depending how quickly the 6th Circuit takes action in the cases being argued on August 6, perhaps from as many as four other states.   The possibility that the Court would put off taking a marriage equality case until next term seems remote.