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Texas Supreme Court Refuses to Dismiss Challenge to Spousal Benefits for Houston City Employees

Posted on: June 30th, 2017 by Art Leonard No Comments

In a clear misreading of the U.S. Supreme Court’s marriage equality ruling from 2015, Obergefell v. Hodges, especially as elucidated just days ago by that Court in Pavan v. Smith, the Texas Supreme Court unanimously refused on June 30 to dismiss a lawsuit by two disgruntled Houston taxpayers who argue that the city of Houston may not provide employee benefits for the same-sex spouses of its employees. The case is Pidgeon v. Turner, 2017 Tex. LEXIS 654.

Instead, while affirming a ruling by the Texas Court of Appeals that had reversed the preliminary injunction that a Texas trial court issued in 2014 against payment of the benefits, the Texas Supreme Court sent the case back to the trial court for it to decide whether the Obergefell decision obligates Houston to provide equal benefits to same-sex spouses of its employees, and also to consider the taxpayers’ argument that the city should be required to “claw back” the value of benefits that were paid prior to the Obergefell decision, on the theory that Texas’s refusal to recognize same-sex marriages contracted out-of-state was valid until the U.S. Supreme Court ruling was announced.

In Pavan v. Smith, the Arkansas Supreme Court had ruled that the Obergefell decision did not require the state to treat same-sex spouses the same as different-sex spouses for listing as a parent on the birth certificate of a child born to their spouse. Reversing that ruling, the U.S. Supreme Court said: “As we explained [in Obergefell], a State may not ‘exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.’ Indeed, in listing those terms and conditions — the ‘rights, benefits, and responsibilities’ to which same-sex couples, no less than opposite-sex couples, must have access — we expressly identified ‘birth and death certificates.’ That was no accident…”

Thus, the Supreme Court made clear in Pavan, contrary to the Arkansas Supreme Court’s unduly narrow reading of Obergefell, that same-sex couples are entitled to the same rights and benefits of marriage as different-sex couples. In listing some of the rights and benefits of marriage that same-sex couples had wrongly been denied, the Obergefell court specifically mentioned health insurance, an employee benefit that is at issue in the Texas case.  Thus, to claim that the Obergefell opinion fails to deal with this issue explicitly is totally disingenuous.

And yet, Justice Jeffrey S. Boyd wrote for the Texas Supreme Court in Pidgeon v. Turner, “The Supreme Court held in Obergefell that the Constitution requires states to license and recognize same-sex marriages to the same extent that they license and recognize opposite-sex marriages, but it did not hold that states must provide the same publicly funded benefits to all married persons, and – unlike the Fifth Circuit in DeLeon – it did not hold that the Texas DOMAs are unconstitutional.” “DeLeon” refers to the Texas marriage equality decision that was issued by the U.S. Court of Appeals for the 5th Circuit a few days after the Obergefell decision, holding that the Texas ban on same-sex marriage was unconstitutional in light of Obergefell.

Instead of cutting through procedural complications and saving everybody involved lots of wasted time and money through prolonged litigation, the Texas court has now repeated the error of the Arkansas Supreme Court by insisting that the Obergefell ruling does not clearly require “the same” rights, benefits and responsibilities, and, incredibly, cited in support of this point the Supreme Court’s decision on June 26 to grant review of a Colorado Court of Appeals ruling, Masterpiece Cakeshop v. Colorado Human Rights Commission, which concerns a totally different question: whether a baker has a 1st Amendment right to discriminate against a same-sex couple by refusing an order for a wedding cake in violation of a state anti-discrimination law.  The Supreme Court did not address in Obergefell the question of reconciling a potential clash between anti-discrimination laws and the rights of free exercise of religion and freedom of speech enjoyed by non-governmental entities and individuals.  But the Court most emphatically did address the issue that governmental actors, bound by the 14th Amendment, must accord the same rights to all married couples, whether same-sex or different-sex, and it reiterated that point in Pavan.

The Texas case dates back to 2013, when Houston’s Mayor Annise Parker, an out lesbian, reacted to the Supreme Court’s Windsor decision by extending benefits to the same-sex spouses of Houston city employees who had gone out of state to get married. At the time, Texas had both a state Defense of Marriage Act and a similar constitutional amendment, and Houston had a charter provision limiting municipal employee benefits to legal spouses and children of employees.  Relying on an advisory opinion from the city attorney, Parker concluded that after Windsor it was unconstitutional to refuse to recognize those out-of-state marriages.

Jack Pidgeon and Larry Hicks, Houston taxpayers who identified themselves as devout Christians who did not want their tax money going to subsidize same-sex marriages, filed a lawsuit challenging the benefits extension in December 2013, and refiled in October 2014 after the first case was dismissed for “want of prosecution” while the parties were wrangling about the city’s attempt to remove the case to federal court. Pidgeon and Hicks claimed, based on state and city law, that the benefits extension was “expending significant public funds on an illegal activity.”  They persuaded a local trial judge to issue a preliminary injunction against continued payment of the benefits while the case was pending, and the city appealed.

The Texas Court of Appeals sat on the appeal while marriage equality litigation proceeded both in the federal courts in Texas – the DeLeon v. Perry case – and nationally. Shortly after the Supreme Court ruled in Obergefell on June 26, 2015, the 5th Circuit, affirming a federal district court ruling, held in DeLeon that the Texas laws banning same-sex marriage were unconstitutional.

Then the Texas Court of Appeals reversed the trial court’s preliminary injunction in the Pidgeon case and sent the case back to the trial court with instructions to decide the case “consistent with DeLeon.” Pidgeon and Hicks sought to appeal this ruling to the Texas Supreme Court, but were initially turned down by that court.  Then the top Republican elected officials in the state – the governor, lieutenant governor, and attorney general – and a bunch of other non-parties filed papers with the Supreme Court urging it to change its mind and allow the appeal, which the court eventually agreed to do.

In its June 30 ruling, the court buried itself in procedural complications. Based on its incorrect conclusion that the Obergefell decision, as amplified by the Pavan ruling, does not decide the merits of this case, and further giving credence to the plaintiffs’ argument that Obergefell cannot be construed to have any retroactive effect because “the Supreme Court acknowledged that it was attributing a new meaning to the Fourteenth Amendment based on ‘new insights and societal understandings,”  the court opined that Pidgeon and Hicks should have an opportunity to “develop” their argument before the trial court.  This contention on retroactivity is not the view that has been taken by other courts, including some that have retroactively applied Obergefell to find that cohabiting same-sex couples in states that still have a common law marriage doctrine can be held to have been legally married prior to that ruling.  Indeed, the federal government even gave Windsor retroactive application, allowing same-sex couples to file for tax refunds for earlier years on the basis that the Internal Revenue Service’s refusal to recognize their state-law marriages under DOMA had been unconstitutional.

The Texas Supreme Court agreed with Pidgeon that the Texas Court of Appeals should not have directed the trial court to rule “consistent with DeLeon” because, technically, the state trial courts are not bound by constitutional rulings of the federal courts of appeals, only by U.S. Supreme Court rulings on questions of federal law. DeLeon could be a “persuasive” precedent, but not a “binding” precedent.  This merits a big “so what?”  After all, the real question in this case is whether Obergefell requires that married same-sex couples are entitled to the “same benefits” as different-sex couples from their municipal employer, and the answer to that could not be more clear, especially after Pavan v. Smith.  (Indeed, Justice Gorsuch’s dissenting opinion in Pavan repeats the same mistaken assertion — that Obergefell does not clearly require the “same” rights and benefits which the Court responds to by quoting from Obergefell to the opposite effect – and is just as disingenuous as Justice Boyd’s decision for the Texas court.)

Now the case goes back to the trial court in Houston, where the outcome should be dictated by Pavan v. Smith and Obergefell and the court should dismiss this case. But, since this is taking place in Texas, where contempt for federal law is openly expressed by public officials, who knows how it will turn out?

Same-Sex Marriage Looms for Taiwan after Constitutional Court Ruling

Posted on: May 24th, 2017 by Art Leonard No Comments

The Constitutional Court of the Republic of China (Taiwan) voted overwhelmingly that same-sex couples are entitled to marry, and that anti-gay discrimination violates the Republic’s Constitution. The May 24 ruling was greeted with relative equanimity by legislative leaders, who were ordered by the court to approve legislation to implement this decision by May 24, 2019.  Otherwise, the court said, the decision would go into effect automatically, and same-sex couples would be entitled to marry.  Only two justices dissented, and one abstained.  Press reports we saw differed as to whether the court has 14 or 15 members.  Either way, the majority was overwhelming.

This was the first ruling by an Asian high court to accept marriage equality as a constitutional right, although there might be political and ideological arguments about its significance in relation to the rest of Asia due to the unusual status of Taiwan, which the Peoples’ Republic of China (Mainland China) considers to be part of its country that is just temporarily self-governing and most countries do not recognize it as an independent nation. However, there is no disputing that when this ruling goes into effect, Taiwan will be the first place where same-sex marriages can be performed in Asia with the imprimatur of legally-recognized status.

The opinion, formally called Interpretation No. 748, was released only in Chinese, but the court simultaneously issued an English-language press release summarizing the ruling in detail.

The court was responding to petitions from LGBT rights activist Chia-Wei Chi and the Taipei City Government, seeking a definitive ruling on whether the freedom to marry, protected by Article 22 of the Constitution, was limited by the provisions of Chapter 2 on Marriage of Part IV on Family of the Civil Code, which defines marriage as exclusively a different-sex institution. The court also had to confront the question whether excluding same-sex couples from marriage violated the “people’s right to equality” guaranteed in Article 7 of the constitution.

The court found that both constitutional guarantees – the right to marry and the right to equality – were violated by the ban on same-sex marriage.

The court observed that the petitioner, Chia-Wei Chi, has been waging a campaign for same-sex marriage for more than thirty years. Although some progress had been made in getting the legislature to consider the issue, after more than ten years of bills being introduced and debated, nothing has been brought to a vote.  The court expressed concern about the frustration induced by this protracted legislative process.  “The representative body is to enact or revise the relevant laws in due time,” said the court.  “Nevertheless, the timetable for such legislative solution is hardly predictable now and yet these petitions involve the protection of people’s fundamental rights.  It is the constitutional duty of this Court to render a binding judicial decision, in time, on issues concerning the safeguarding of constitutional basic values such as the protection of peoples’ constitutional rights and the free democratic constitutional order.”

The court said that the freedom to marry extends both to deciding whether to marry and whom to marry. “Such decisional autonomy is vital to the sound development of personality and safeguarding of human dignity, and therefore is a fundamental right.”  The court insisted that allowing same-sex couples to marry “will not affect the application of the Marriage Chapter to the union of two persons of the opposite sex” and that it would not “alter the social order established upon the existing opposite-sex marriage.”  The court said that the failure of current law to allow same-sex couples to marry “is obviously a gross legislative flaw” and that the current provisions “are incompatible with the spirit and meaning of the freedom of marriage as protected by Article 22 of the Constitution.”

Moving to the equality issue, the court addressed the problem that Article 7, unlike the United States’ equal protection clause, explicitly requires equality “irrespective of sex, religion, class, or party affiliation,” but the court did not see this list as a barrier to protecting equality for gay people (or, it added, people with disabilities). They said that the classifications listed in Article 7 “are only exemplified, neither enumerated nor exhausted.”  In other words, this is a list of “including but not limited to” classifications, and the court saw sexual orientation as a classification governed by the same equality principle.

“Sexual orientation is an immutable characteristic that is resistant to change,” wrote the court. “The contributing factors to sexual orientation may include physical and psychological elements, living experience, and the social environment.  Major medical associations have stated that homosexuality is not a disease.  In our country, homosexuals were once denied by social tradition and custom in the past.  As a result, they have long been locked in the closet and suffered various forms of de facto or de jure exclusion or discrimination.  Besides, homosexuals, because of the demographic structure, have been a discrete and insular minority in the society.  Impacted by stereotypes, they have been among those lacking political power for a long time, unable to overturn their legally disadvantaged status through ordinary democratic process.  Accordingly, in determining the constitutionality of different treatment based on sexual orientation, a heightened standard shall be applied.”  This appears to be the equivalent of the U.S. legal concept of a “suspect classification,” one deemed illegitimate in the absence of good justification.

The court rejected any idea that reproductive capacity has anything to do with the freedom to marry, pointing out that different-sex couples may marry even if they are incapable of procreation or unwilling to engage in procreative activities. “Disallowing two persons of the same sex to marry, for the sake of their inability to reproduce, is a different treatment having no apparent rational basis,” wrote the court.  It also rejected the kind of moralistic arguments that are raised by marriage equality opponents, concluding, “Disallowing two persons of the same sex to marry, for the sake of safeguarding basic ethical orders, is a different treatment, also obviously having no rational basis.  Such different treatment is incompatible with the spirit and meaning of the right to equality as protected by Article 7 of the Constitution.”

While the court gave the government two years to make the necessary legislative adjustments to carry out this ruling, it warned that failure to do so would not prevent the decision from going into effect. Upon the two-year anniversary, if not sooner, same-sex couples will be entitled to apply for marriage registration to the usual authorities and to “be accorded the status of a legally recognized couple, and then enjoy the rights and bear the obligations arising on couples.”

Without being able to read and understand the original Chinese text, it is hard to assess whether the ruling leaves much leeway to the legislature to consider alternatives to true marriage equality. In Europe, for example, the Court of Human Rights has been willing to allow countries to adopt registered partnerships or civil unions rather than extending explicit marriage rights to same-sex couples, although that is likely to change as the number of countries having voluntarily legislated for marriage equality has grown to encompass several of the largest countries who are parties to the European Convention on Human Rights.  However, the clear import of the English summary is that same-sex marriages would have to include all the usual legal rights accompanying opposite-sex marriages to meet the equality test the court embraced, in a more explicit way than the U.S. Supreme Court did in Obergefell v. Hodges in 2015.

The local English-language press in Taiwan reported that none of the major parties responded with opposition to the ruling, which was quickly embraced by Premier Lin Chuan, who “ordered Chen Mei-ling, secretary-general of the Executive Yuan, to coordinate the Ministry of Justice, Ministry of Interior and other branches to draft the revision proposal,” according to Cabinet spokesman Hsu Kuo-yung. The cabinet will approve a proposal to submit to the legislature. The two options that seem available are a bill amending existing laws to accommodate same-sex marriages, or a separate same-sex marriage bill.  In terms of timing, it seems possible that marriage equality will go into effect sooner than two years.  Although the current legislative session ends by May 31, the legislature will reconvene for some special sessions during July and August and will resume its regular session thereafter.

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

Posted on: December 19th, 2016 by Art Leonard No Comments

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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.”

No, Donald Trump Can’t Repeal Marriage Equality

Posted on: November 11th, 2016 by Art Leonard No Comments

Some panicky LGBT people have been calling the LGBT legal and political organizations to ask whether they should accelerate their wedding plans to marry before Donald Trump takes office, and many are expressing concern that the marriage equality victory, won in the Supreme Court on June 26, 2015, after so much hard work and heartache, is now in danger of being reversed, and that their own same-sex marriages might become invalid.

 

Although nobody can predict the future with absolute certainty, it is highly unlikely that the marriage equality decision will be reversed, and it is an absolute certainty that Trump as president will not have the authority to reverse it on his own or even with the connivance of Congress.  Furthermore, there is good legal authority to conclude that a valid marriage, once contracted, can only be ended by a divorce or by the death of one of the spouses, not by executive fiat or legislative action.

 

The Supreme Court ruled in Obergefell v. Hodges, voting 5-4, that same-sex couples have a right to marry as part of the liberty guaranteed under the 14th Amendment of the Constitution, bolstered by the constitutional guarantee of equal protection of the laws.  A ruling on a constitutional right by the U.S. Supreme Court can only be changed in one of two ways: a constitutional amendment, or an overruling by the Supreme Court in a later case.  Once a case is decided and the Court sends its mandate out to the lower court from which the case was appealed, the losing party can file a petition seeking a rehearing, but such a petition has to be filed quickly and the Court almost always denies them.  We are now 18 months out from the Obergefell ruling.  It is final, done, no longer open to reconsideration by the Court.  And the President has no power to “repeal” or “overrule” it by himself.  Neither does Congress.

 

During the campaign, Donald Trump did not threaten to try to repeal or reverse the ruling on his own. He said he thought the question of marriage should have been left to the states, so he disagreed with the Court’s decision, and he said he would consider appointing new justices to the Supreme Court who would vote to overrule it.

 

Trump can’t appoint a new justice to the Court until there is a vacancy.  There is one now, due to the death of Justice Antonin Scalia last winter and the refusal by the Senate to consider President Obama’s nomination of Judge Merrick Garland of the D.C. Circuit Court of Appeals to replace him.  But Justice Scalia dissented in the Obergefell case, so replacing him with a conservative judge would not change the outcome.  The five-member majority in Obergefell – Justices Anthony Kennedy (who wrote the Court’s opinion), Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan – are all still there.  And there is no case now pending before the Court that would provide a vehicle for overruling Obergefell v. Hodges.  And any marriage equality opponent thinking strategically would be waiting until one of those majority justices leaves before attempting to launch a legal challenge.

 

What about the constitutional amendment route?  That is not going to happen.  Trump’s election doesn’t affect that at all, since the President plays no role in amending the Constitution.  Article V makes it so difficult to pass an amendment that our 240-year-old Constitution has picked up only 27 amendments, ten of them being the Bill of Rights adopted in 1791, and the most recent one, adopted in 1992, a quarter century ago, requiring that any pay raise that Congress votes for itself cannot go into effect until after the next House of Representatives election.  In order to propose a new amendment, at least 2/3 of each house of Congress has to approve it, and then it has to be ratified by at least ¾ of the states.  Alternatively, 2/3 of the states can apply to Congress to call a Constitutional Convention for the purpose of proposing amendments, but any amendments proposed would still require ratification by ¾ of the states.

 

By the time the Supreme Court decided Obergefell in 2015, popular opinion polls showed that a clear majority of the public supported marriage equality, and that margin of support only increases over time, as polling in the early marriage equality states such as Massachusetts has shown.  Amendments to the Constitution can only pass with overwhelming public support.  There is no overwhelming public support to abolish same-sex marriage.  That effort is now the province mainly of far-right-wing cranks and religious fanatics.  And as long as the Democrats hold more than 1/3 of the seats in the Senate, it is highly unlikely that a Marriage Amendment would get the necessary 2/3 vote in that chamber.  Indeed, the Democrats hold enough seats in that House, in combination with some more moderate Republicans, to block it in that chamber as well.  So, marriage equality opponents, forget about passing a Marriage Amendment.

 

The alternative, of course, is for opponents to set up a lawsuit raising the question and to get it to the Supreme Court after Trump (or a successor) has had an opportunity to appoint somebody to replace a member of the Obergefell majority.   That majority includes the three oldest members of the Court, Ginsburg, Kennedy and Breyer, so it is possible Trump will have that opportunity before the end of a four-year term.   Even then, however, an overruling is highly unlikely.

 

First, a case presenting the question has to come to the Court, and the issue of marriage equality has to be central to that case.  The Court may be presented over the next few years with cases that involving marriage equality in some way.  They already have a petition to review the Colorado marriage cake case, presenting the claim that a baker’s 1st Amendment rights are violated by fining him under a state anti-discrimination law for refusing to make a wedding cake for a gay couple, but I’m not sure such a case, even if the Supreme Court decided to hear it, would provide a vehicle for overruling Obergefell.  More likely, a challenge would come from some state deciding to provoke a lawsuit by denying equal treatment for some benefit to a married same-sex couples. But it’s not enough just to petition the Court, because the Court has complete discretion about whether to accept a case for review, and it takes four Justices to grant such a petition.  By the time they get such a petition AFTER a change of membership has reduced the Obergefell majority, perhaps several years from now, same-sex marriage will be such a settled issue, with so many tens of thousands of same-sex couples married throughout the country, that it seems highly unlikely that even four members of the Court would be motivated to reopen the issue.

 

Furthermore, the Court normally embraces a concept called “stare decisis,” a Latin term meaning standing by what has been decided.  They are very reluctant to overrule themselves, especially when a decision has been embraced by society and incorporated into the everyday lives of many people.  When they do overrule a prior decision, it is usually in the direction of realizing that the old decision wrongly denied a constitutional claim or adopted an incorrect and harmful interpretation of a statute.   The Court resists attempts to get it to cut back rights that it previously recognized.

 

In the course of litigating about LGBT rights, the Court has twice overruled past decisions.  In 2003, the Court overruled Bowers v. Hardwick (1986) when it decided that the constitution protected people engaged in consensual gay sex from criminal prosecution, in Lawrence v. Texas (2003).  Indeed, the Court said that Bowers was wrong when it was decided.  The second time, it overruled Baker v. Nelson (1972) when it held that same-sex couples have a right to marry.  Baker, however, was a one-sentence decision stating that the issue of same-sex marriage did not present a “substantial federal question.”  In both cases, overruling involved a determination that the prior case had wrongly failed to recognize a constitutional right, so the new decision marked an expansion of liberty and equality. The Court is unlikely to overrule a case in order to contract liberty or deny equality.

 

As to the validity of existing same-sex marriages, when Californians passed Proposition 8 in 2008 after several thousand same-sex couples had married in that state, the California Supreme Court ruled that although Prop 8 was validly enacted, it could not retroactively “un-marry” all those couples.  Their marriages would continue to be valid and recognized by the state.  It is unlikely that the U.S. Supreme Court would take a different position regarding existing same-sex marriages if it were to overrule Obergefell.  That would raise daunting due process and equal protection questions.

 

Trump’s taking office does not present a direct and present threat to marriage equality.  It does present many other threats, including the loss of pro-LGBT executive orders and the likely abandonment by federal agencies of the position that sex discrimination laws protect LGBT people from discrimination because of their sexual orientation or gender identity.  But those are other issues….

Arizona Appeals Court Adopts Gender-Neutral Construction of Paternity Statute in Same-Sex Couple Dispute

Posted on: October 14th, 2016 by Art Leonard No Comments

The Court of Appeals of Arizona ruled on October 11 that as a result of the U.S. Supreme Court’s ruling in Obergefell v. Hodges, 135 S. Ct. 2584 (2015), holding that same-sex couples have a constitutional right to marry and that their marriages must receive equal treatment under the law to those of different-sex couples, the Arizona courts must construe the state’s paternity statute in a gender neutral way so that the same-sex spouse of a woman who gives birth enjoys the presumption of parental status. McLaughlin v. Jones, 2016 Ariz. App. LEXIS 256, 2016 WL 5929205 (Oct. 11, 2016).  Judge Philip Espinosa wrote for the unanimous three-judge panel.

Kimberly and Suzan were legally married in California in October 2008, shortly before voters approved Proposition 8, which enshrined a different-sex only marriage definition in the state constitution. Shortly thereafter, however, the California Supreme Court ruled that same-sex marriages contracted before the passage of Prop 8 remained valid under California law.  “The couple agreed to have a child through artificial insemination,” wrote Judge Espinosa, “using an anonymous sperm donor selected from a sperm bank.”  Suzan’s efforts to conceive this way were unsuccessful, but Kimberly became pregnant in 2010. Before their child was born, the women moved to Arizona, a state that did not then recognize their marriage or allow second-parent adoptions.

The women made a joint parenting agreement and executed mirror-image wills, declaring “they were to be equal parents of the child Kimberly was carrying,” wrote the court. After their son was born in June 2011, Suzan was the stay-at-home mom while Kimberly resumed her work as a physician.  The women’s relationship deteriorated, however, and when their son was almost two years old, Kimberly moved out of their home, taking the child with her and cutting off his contact with Suzan.

In April 2013, Suzan filed a petition for dissolution of the marriage and a petition for a court order recognizing her parental status in various ways, most significantly decision-making and parenting time. The matter came before Superior Court Judge Lori Jones in Pima County, who decided to stay the proceedings while marriage equality litigation was pending.  In January 2016, six months after the Supreme Court decided Obergefell, Kimberly moved to set the case for trial and Judge Jones ordered briefing concerning “the issue whether the case was a dissolution proceeding with or without children in view of the presumption of paternity under an Arizona statute, Section 25-814(A).  In an April 7, 2016, ruling, Judge Jones found that it would violate Suzan’s 14th Amendment rights not to afford her the same presumption of parenthood that a husband would enjoy.  Thus, she ordered, the case should proceed as a “dissolution action with children.”

Kimberly then moved for a declaratory judgment about whether she would be permitted to introduce evidence to rebut the presumption. On May 2, Judge Jones ruled that Kimberly would not be permitted to attempt to rebut the presumption that Suzan was a parent of their son.  Jones found that there was nothing for Kimberly to rebut, adding that a “family presumption applies to same sex and opposite sex non-biological spouses married to a spouse who conceived a child during the marriage via artificial insemination.”  She relied on Section 25-501, a support statute which is applicable when a child is born as a result of donor insemination, finding that this “necessarily gives rise to parental rights in the non-biological spouse.”  Kimberly appealed this ruling.

On appeal, Kimberly argued that as the child’s biological mother, “she is, by definition, the only parent and therefore the only person who has parental rights, which are fundamental rights,” wrote Judge Espinosa, summarizing Kimberly’s argument. She contended that Judge Jones erroneously construed the paternity statute to encompass same-sex lesbian couples.  Suzan, in response, argued that because of Obergefell, parentage statutes “must be applied and interpreted in a gender-neutral manner so that same-sex couples’ fundamental marital rights are not restricted and they are afforded the same benefits of marriage as heterosexual couples and on the same terms,” wrote Espinosa.

The Arizona statute defining “legal parents” includes “biological” or “adoptive” parents, and “does not include a person whose paternity has not been established pursuant to Section 25-812 [acknowledgment of paternity] or Section 25-814 [presumptions of paternity].” The court found that Section 25-814(A)(1) applies to the McLaughlin case, assuming one applies a gender-neutral interpretation of the statutory language.  This provides that “a man is presumed to be the father of the child if 1. He and the mother of the child were married at any time in the ten months immediately preceding the birth.”

Judge Espinosa wrote, “Enacted well before the Supreme Court decided Obergefell, this statute was written with gender-specific language at a time when the marriage referred to in subsection (A)(1) could only be between a man and a woman.” While accepting Kimberly’s argument that Judge Jones should not have relied on the child support statute to determine Suzan’s status, the court rejected Kimberly’s argument that “it would be impossible and absurd to apply Section 25-841(A)(1) in a gender-neutral manner to give rise to presumption parenthood in Suzan.  Indeed, Obergefell mandates that we do so,” he continued, “and the plain language of the statute, as well as the purpose and policy behind it, are not in conflict with that application.”  Not to do that would deprive same-sex married couples of the same “terms and conditions of marriage” as are enjoyed by different-sex couples, which would be a clear violation of the Supreme Court’s mandate of equal treatment in Obergefell.

“The word ‘paternity’ therefore signifies more than biologically established paternity,” wrote Espinosa. “It encompasses the notion of parenthood, including parenthood voluntarily established without regard to biology.”  He pointed out that the long-established purpose of paternity statutes is “to provide financial support for the child of the natural parent.”  The marital presumption “is intended to assure that two parents will be required to provide support for a child born during the marriage” and serves the additional purpose “or preserving the family unit.”  For these propositions, the court relied on the Massachusetts Supreme Judicial Court’s ruling in Partanen v. Gallagher, decided just days earlier.  The court rejected Kimberly’s argument that there was any reason to treat men and women differently in this regard, after Obergefell.

As to Kimberly’s request to be able to rebut the presumption of parenthood, the court held that it “need not decide how the rebuttal provision in Section 25-814(C) applies in a same-sex marriage because we determine Kimberly is estopped from rebutting the presumption.  Equitable estoppel applies when a party engages in acts inconsistent with a position later adopted and the other party justifiably relies on those acts, resulting in an injury.”

In this case, it was uncontested that the women were lawfully married when Kimberly became pregnant as a result of a donor insemination process upon which both women agreed.  It is not disputed that their son was born during the marriage.  It is not disputed that Suzan was the stay-at-home mom and cared for their son until Kimberly “left the home with him.”  Furthermore, the women had made a written parenting agreement providing that they were to be equal parents of the child.  In that agreement, Kimberly agreed to “waive any constitutional, federal or state law that provide her with a greater right to custody and visitation than that enjoyed by Suzan.”  They even provided in the agreement that if their relationship broke down, Suzan would continue to enjoy parenting rights, and that if second-parent adoption became available in the jurisdiction where they lived, Suzan would adopt the child.  Since their partnership broke up before Obergefell was decided, however, Suzan never had an opportunity to adopt their son.

The court concluded that based on these uncontested facts, the doctrine of equitable estoppel applied, barring Kimberly from attempting to rebut the presumption that Suzan is a parent to their son.  “Suzan is the only parent other than Kimberly,” wrote Judge Espinosa, “and having two parents to love and support [their son] is in his best interest.  Under these circumstances, Kimberly is estopped from rebutting the presumption of parenthood pursuant to Section 25-814(C).”

Consequently, Kimberly’s appeal was denied, and the case will continue before Judge Jones as a dissolution with a child.  It will be up to Judge Jones in the first instance to determine whether it is in the best interest of the child to order Kimberly to allow Suzan to have a continuing relationship, including parenting time and decision-making authority.

Kimberly is represented by Keith Berkshire and Megan Lankford, Phoenix.  Suzan is represented by Campbell Law Group, Phoenix, and attorneys from the National Center for Lesbian Rights, San Francisco.  Appointed counsel for the child included law students and supervising faculty from various clinical programs, including the Family and Juvenile Law Certificate Program in Tucson, and Child and Family Law Clinic in Tucson, the Community Law Group, Tucson, and the Child and Family Law Clinic at the University of Arizona Rogers College of Law.

 

 

Federal Court Blocks Implementation Mississippi HB 1523

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

 Just minutes before Mississippi’s anti-LGBT H.B. 1523 was scheduled to go into effect on July 1, U.S. District Judge Carlton W. Reeves filed a 60-page opinion explaining why he was granting a preliminary injunction to the plaintiffs in two cases challenging the measure, which he consolidated for this purpose under the name of Barber v. Bryant.

 

                According to Judge Reeves, H.B. 1523 violates both the 1st Amendment’s Establishment of Religion Clause and the 14th Amendment’s Equal Protection Clause.  His lengthy, scholarly opinion expands upon some of the points he made just days earlier when he granted a preliminary injunction in a separate lawsuit, blocking implementation of one provision of H.B. 1523 that allowed local officials responsible for issuing marriage licenses to “recuse” themselves from issuing licenses to same-sex couples based on their “sincere” religious beliefs.

 

                Unlike the earlier ruling, the June 30 opinion treats H.B. 1523 as broadly unconstitutional on its face.  Although Mississippi Governor Phil Bryant, the lead defendant in all three lawsuits, announced that the state would immediately appeal to the U.S. Court of Appeals for the 5th Circuit, Reeves’ scholarly opinion seemed likely to withstand judicial review.  Attorney General Jim Hood, Mississippi’s only Democratic statewide elected official and also a named defendant, suggested that he might not be joining in such an appeal, voicing agreement with Reeves’ decision and suggesting that the legislature had “duped” the public by passing an unnecessary bill.  He pointed out that the 1st Amendment already protected clergy from any adverse consequences of refusing to perform same-sex marriages, and that the state’s previously-enacted Religious Freedom Restoration Act already provides substantial protection for the free exercise rights of Mississippians.

 

                At the heart of H.B. 1523 is its Section 2, which spells out three “sincerely held religious beliefs or moral convictions” that are entitled, as found by Judge Reeves, to “special legal protection.”  These are “(a) Marriage is or should be recognized as the union of one man and one woman; (b) Sexual relations are properly reserved to such a marriage; and (c) Male (man) or female (woman) refer to an individual’s immutable biological sex as objectively determined by anatomy and genetics at birth.”  According to the statute, any person or entity that holds one or more of these beliefs is entitled to be free from any sanction by the government for acting upon them by, for example, denying restroom access to a transgender person or refusing to provide goods or services to a same-sex couple for their wedding.

 

                Of course, the state may not override federal rights and protections, and the plaintiffs argue in these cases that by privileging people whose religious beliefs contradict the federal constitutional and statutory rights of LGBT people, the state of Mississippi has violated its obligation under the 1st Amendment to preserve strict neutrality concerning religion and its obligation under the 14th amendment to afford “equal protection of the law” to LGBT people.

 

                Reeves, who ruled in 2014 that Mississippi’s ban on same-sex marriage was unconstitutional, agreed with the plaintiffs as to all of their arguments.   For purposes of granting a preliminary injunction, he did not have to reach an ultimate decision on the merits of the plaintiffs’ claims.  It would suffice to show that they are “likely” to prevail on the merits.  But anybody reading Reeves’ strongly-worded opinion would have little doubt about his view of the merits.

 

                In an introductory portion of the opinion, he spells out his conclusions succinctly: “The Establishment Clause is violated because persons who hold contrary religious beliefs are unprotected – the State has put its thumb on the scale to favor some religious beliefs over others.  Showing such favor tells ‘nonadherents that they are outsiders, not full members of the political community, and adherents that they are insiders, favored members of the political community,’” quoting from a Supreme Court decision from 2000, Santa Fe Independent School District v. Doe, 530 U.S. 290.  “And the Equal Protection Clause is violated by H.B. 1523’s authorization of arbitrary discrimination against lesbian, gay, transgender, and unmarried persons.”

 

                Much of the opinion was devoted to rejecting the state’s arguments that the plaintiffs did not have standing to bring the lawsuits, that the defendants were not liable to suit on these claims, and that injunctive relief was unnecessary because nobody had been injured by the law.  Reeves cut through these arguments with ease.  A major Supreme Court precedent backing up his decision on these points is Romer v. Evans, the 1996 case in which LGBT rights groups won a preliminary injunction against Colorado government officials to prevent Amendment 2 from going into effect.  Amendment 2 was a ballot initiative passed by Colorado voters in 1992 that prevented the state from providing any protection against discrimination for gay people.  The state courts found that the LGBT rights groups could challenge its constitutionality, and it never did go into effect, because the Supreme Court ultimately found that it violated the Equal Protection Clause.

 

                Judge Reeves ended his introductory section with a quote from the Romer v. Evans opinion:  “It is not within our constitutional tradition to enact laws of this sort.”

 

                In his earlier opinion, dealing with the clerk “recusal” provision, Reeves had alluded to Mississippi’s resistance to the Supreme Court’s racial integration rulings from the 1950s and 1960s, and he did so at greater length in this opinion, focusing on how H.B. 1523 was specifically intended by the legislature as a response to the Supreme Court’s ruling last year in Obergefell v. Hodges, holding that same-sex couples have a constitutional right to marry.  Mississippi legislators made clear during the consideration of this bill that its intention was to allow government officials and private businesses to discriminate against LGBT people without suffering any adverse consequences, just as the state had earlier sought to empower white citizens of Mississippi to preserve their segregated way of life despite the Supreme Court’s rejection of race discrimination under the 14th Amendment.

 

                Reeves quoted comments by Governor Bryant criticizing Obergefell as having “usurped” the state’s “right to self-governance” and mandating the state to comply with “federal marriage standards – standards that are out of step with the wishes of many in the United States and that are certainly out of step with the majority of Mississippians.”  In a footnote, Reeves observed, “The Governor’s remarks sounded familiar.  In the mid-1950s, Governor J.P. Coleman said that Brown v. Board of Education ‘represents an unwarranted invasion of the rights and powers of the states.’”  Furthermore, “In 1962, before a joint session of the Mississippi Legislature – and to a ‘hero’s reception’ – Governor Ross Barnett was lauded for invoking states’ rights during the battle to integrate the University of Mississippi.”  Reeves also noted how the racial segregationists in the earlier period had invoked religious beliefs as a basis for failing to comply with the Supreme Court’s decisions.

 

                Turning to the merits of the case, Reeves addressed the state’s argument that the purpose of the statute was to “address the denigration and disfavor religious persons felt in the wake of Obergefell,” and the legislative sponsors presented it as such, as reflected in the bill’s title: “Protecting Freedom of Conscience from Government Discrimination Act.”  Reeves pointed out what was really going on.  “The title, text, and history of H.B. 1523 indicate that the bill was the State’s attempt to put LGBT citizens back in their place after Obergefell,” he wrote.  “The majority of Mississippians were granted special rights to not serve LGBT citizens, and were immunized from the consequences of their actions.  LGBT Mississippians, in turn, were ‘put in a solitary class with respect to transactions and relations in both the private and governmental spheres’ to symbolize their second-class status.” (The quotation is from Romer v. Evans.)  “As in Romer, Windsor, and Obergefell,” Reeves continued, “this ‘status-based enactment’ deprived LGBT citizens of equal treatment and equal dignity under the law.”

 

                Because state law in Mississippi does not expressly forbid discrimination because of sexual orientation or gender identity, the state tried to claim that in fact the bill did not have the effect of imposing any new harm.  However, recently the city of Jackson passed an ordinance forbidding such discrimination, and the University of Southern Mississippi also has a non-discrimination policy in place.  “H.B. 1523 would have a chilling effect on Jacksonians and members  of the USM community who seek the protection of their anti-discrimination policies,” wrote Reeves.  “If H.B. 1523 goes into effect, neither the City of Jackson nor USM could discipline or take adverse action against anyone who violated their policies on the basis of a ‘Section 2’ belief.”

 

                The court held that because of the Establishment Clause part of the case, H.B. 1523 was subject to strict scrutiny judicial review, and also pointed out that under Romer v. Evans, anti-LGBT discrimination by the state is unconstitutional unless there is some rational  justification for it.  He rejected the state’s argument that it had a compelling interest to confer special rights upon religious objectors.  “Under the guise of providing additional protection for religious exercise,” he wrote, H.B. 1523 “creates a vehicle for state-sanctioned discrimination on the basis of sexual orientation and gender identity.  It is not rationally related to a legitimate end.”  Indeed, he asserted, “The deprivation of equal protection of the laws is H.B. 1523’s very essence.”

 

                Reeves easily found that the standard for ordering preliminary relief had been met.  Not only was it likely that H.B. 1523 would be found unconstitutional in an ultimate ruling in the case, but it was clear that it imposed irreparable harm on LGBT citizens, that a balancing of harms favored the plaintiffs over the defendants, and that the public interest would be served by enjoining operation of H.B. 1523 while the lawsuits continue.  “The State argues that the public interest is served by enforcing its democratically adopted laws,” he wrote.  “The government certainly has a powerful interest in enforcing its laws.  That interest, though, yields when a particular law violates the Constitution.  In such situations the public interest is not disserved by an injunction preventing its implementation.”

 

                Reeves concluded, “Religious freedom was one of the building blocks of this great nation, and after the nation was torn apart, the guarantee of equal protection under law was used to stitch it back together.  But H.B. 1523 does not honor that tradition of religious freedom, nor does it respect the equal dignity of all of Mississippi’s citizens.  It must be enjoined.”

 

Federal Court Will Enjoin Part of Mississippi H.B. 1523 to Enforce Equal Protection Rights of Same-Sex Couples

Posted on: June 28th, 2016 by Art Leonard No Comments

 

 

U.S. District Judge Carlton W. Reeves announced on June 27 that he will order Mississippi officials not to enforce part of H.B. 1523, a recently-enacted state law scheduled to go into effect on July 1, because it would circumvent the Supreme Court’s 2015 ruling requiring states to afford equal marriage rights to same-sex couples.   The challenged provision,  Section 3(8)(a), allows Circuit Court Clerks to “recuse” themselves from issuing marriage licenses to same-sex couples if they have a sincere religious belief opposed to same-sex marriage.  The provision says that same-sex couples will be entitled to get marriage licenses, but provides no mechanism to make sure that they can get them in case there is nobody in a particular clerk’s office who has not recused himself or herself.  The Order is published as Campaign for Southern Equality v. Bryant, 2016 U.S. Dist. LEXIS 83036 (S.D. Miss., June 27, 2016).

 

Recalling a 1962 ruling by the U.S. Court of Appeals for the 5th Circuit, Meredith v. Fair, 305 F.2d 343, which “chastised our State for ‘a carefully calculated campaign of delay and masterly inactivity” in response to federal  desegregation orders, Judge Reeves announced that he would “reopen” the Mississippi marriage equality case “for the parties to confer about how to provide clerks with actual notice of the Permanent injunction” and for the parties “to confer on appropriate language to include in an Amended Permanent Injunction.”

 

Robbie Kaplan, a New York attorney who represents the Campaign for Southern Equality, the plaintiff in the Mississippi case, had filed a motion seeking to reopen the case in order to ensure that same-sex couples in the state are not subjected to unconstitutional discrimination because of H.B. 1523.  A large team of pro-bono attorneys from Paul, Weiss, Rifkind, Wharton & Garrison, a New York firm where Kaplan is a partner, is working on the case together with attorneys from several southern states including local counsel from Mississippi.

 

Reeves is also considering two other lawsuits involving challenges and defenses to the constitutionality of other provisions of H.B. 1523, which was explicitly enacted in response to the Supreme Court’s Obergefell v. Hodges decision and which shelters public employees and private businesses from any liability or adverse consequences if they refuse to deal with same-sex couples based on their religious beliefs.   The law also allows government offices and businesses to deny transgender people appropriate access to restrooms and other gender-designated facilities, once again based on a “sincere religious belief” that a person’s gender is immutably determined at birth.  Reeves is expected to issue rulings in those cases shortly.

 

Judge Reeves, an African-American man who was appointed to the district court by President Barack Obama, presided over the Mississippi marriage equality case, Campaign for Southern Equality v. Bryant, issuing a ruling in November 2014 that the state’s constitutional and statutory bans on same-sex marriage violate the 14th Amendment.  He issued a preliminary injunction to that effect on November 25, which was stayed while the state appealed to the 5th Circuit, which, after hearing oral argument in this and cases from other states in the circuit in January 2015, put a hold on the appeal until the Supreme Court decided the Obergefell case.

 

The Obergefell decision, announced on June 26, 2015, said that same-sex couples were entitled to enter into civil marriages “on the same terms and conditions as opposite-sex couples.” “This resolved the issue nationwide,” wrote Reeves, who subsequently issued a Permanent Injunction in response to an order from the 5th Circuit (see 791 F.3d 625) directing him to “act expeditiously on remand and enter final judgment.”  Reeves’ Permanent Injunction ordered that the state “and all its agents, officers, employees, and subsidiaries, and the Circuit Clerk of Hinds County and all her agents, officers, and employees, are permanently enjoined from enforcing Section 263A of the Mississippi Constitution and Mississippi Code Section 93-1-1(2).”

 

Shortly after Reeves issued his injunction, the Mississippi Attorney General’s office advised all 82 Circuit Court clerks to grant marriage licenses “to same-sex couples on the same terms and conditions accorded to couples of the opposite sex.” But in response to this motion, the State argued that the only Circuit Court Clerk bound by the court’s injunction was the Hinds County Clerk, who was named in that Order, because the clerks are county employees rather than state employees.

 

When the Mississippi legislature convened for its 2016 session, it promptly passed H.B. 1523, which was clearly intended to send a message that the state would happily tolerate and protect discrimination against same-sex couples and LGBT individuals by privileging those with anti-gay religious beliefs. This was largely symbolic when it came to discrimination by private businesses and landlords, since Mississippi law does not forbid discrimination because of sexual orientation or gender identity in employment, housing and public accommodations, and it was only after H.B. 1523 was enacted that the city of Jackson became the first jurisdiction in the state to legislate against such discrimination.  Thus, at the time H.B. 1523 was passed, this “privilege” was not necessary to “protect” free exercise of anti-gay religious views by Mississippians.

 

The provisions about bathroom use and marriage licenses threatened to have more significant practical effect, setting up a clash with federal constitutional and statutory requirements. Over the past few months, issue has been joined in several lawsuits in other federal districts contesting whether federal sex discrimination laws override state laws and require employers not to discriminate against LGBT people or deny bathroom access to transgender employees and students. As Judge Reeves pointed out in his June 27 Order, states “lack authority to nullify a federal right or cause of action they believe is inconsistent with their local policies.”  In this case, the marriage license provision clearly violates federal constitutional requirements established in the Obergefell decision.

 

“In H.B. 1523,” wrote Reeves, “the State is permitting the differential treatment to be carried out by individual clerks. A statewide policy has been ‘pushed down’ to an individual-level policy.  But the alleged constitutional infirmity is the same.  The question remains whether the Fourteenth Amendment requires marriage licenses to be granted (and out-of-state marriage licenses to be recognized) to same-sex couples on identical terms as they are to opposite-sex couples.”  And the precise question before Reeves was whether it was necessary to modify his 2015 injunction to make it clear that all government employees involved in the marriage process, including the State Registrar and the Circuit Court Clerks, are bound by his injunction.

 

Reeves concluded that the Registrar was clearly bound, but that it would be preferable to make it more explicit that the Circuit Court Clerks are bound as well, since a violation of the injunction would subject them to potential liability, including the costs of defending lawsuits against them and possible contempt penalties if they refused to obey the court’s Order.

 

Much of his June 27 Order was devoted to technical procedural and jurisdictional issues, which he resolved in every instance against the state defendants, from Governor Phil Bryant on down.

 

He also agreed with the plaintiffs that they should be able to conduct discovery against the State Registrar in order to learn which Clerks had filed forms seeking to recuse themselves from issuing marriage licenses. The Registrar, who is supposed to receive those forms under H.B. 1523, had been claiming that since she was not a party to the marriage lawsuit, she was not bound by the court’s injunction and thus not subject to a discovery demand in this case.  Reeves asserted that “there are good reasons to permit discovery from the Registrar strictly for purposes of enforcing the Permanent Injunction.  In 2016, Mississippi responded to Obergefell by creating a new way to treat same-sex couples differently than opposite-sex couples.  That the differential treatment is now pushed down to county employees should be irrelevant for discovery purposes.  The State will have the documents that show exactly where and by whom the differential treatment it authorized in HB 1523 will now occur.  The Plaintiffs should be able to receive that post-judgment discovery from an appropriate State employee, like the Registrar.”

 

Reeves rejected the technical argument that the State, as such, was not a party to the lawsuit. For technical reasons of constitutional law, the State as an entity can’t be sued in federal court by its citizens without its consent, so state officials rather than the State itself are designated as defendants in cases like the marriage equality lawsuit.  But this is really a technicality.  The Attorney General defended the marriage ban using state funds and employees and, Reeves pointed out, it is well established that a federal court “may enjoin the implementation of an official state policy” because the state is “the real party in interest” even though the lawsuit was brought against named state officials.

 

Reeves signaled that the amended form of the Injunction will add language from the Obergefell decision to make clear that same-sex couples are entitled to the same treatment as different-sex couples because, as the 5th Circuit said last July, Obergefell “is the law of the land and, consequently, the law of this circuit.”

 

“Mississippi’s elected officials may disagree with Obergefell, of course, and may express that disagreement as they see fit – by advocating for a constitutional amendment to overturn the decision, for example,” wrote Reeves. “But the marriage license issue will not be adjudicated anew after every legislative session.  And the judiciary will remain vigilant whenever a named party to an injunction is accused of circumventing that injunction, directly or indirectly.”

 

A Flood of New Litigation on LGBT Rights

Posted on: May 10th, 2016 by Art Leonard No Comments

May has brought a flood of litigation over LGBT rights in the federal courts. During the first few days of the month, half a dozen federal lawsuits were filed addressing either the transgender bathroom issue or continuing state-level resistance to marriage equality.

First out of the box was a lawsuit filed in federal court in Chicago on May 4 by two right-wing litigation groups – The Thomas More Society and the Alliance Defending Freedom – challenging the U.S. Department of Education’s agreement with Township School District 211 that settled a lawsuit about transgender restroom access.   Under the settlement agreement the school district will allow transgender students to use restrooms and other facilities consistent with their gender identity.  The case stirred considerable local controversy, and the litigation groups were able to recruit five students and their parents, banding together as “Students and Parents for Privacy,” to challenge the settlement.  They argue that the students have a fundamental constitutional right of “bodily privacy” that is violated when transgender students show up in the restroom, that the settlement violates the parents’ fundamental right to direct the education and upbringing of their children by exposing the children to such shocking things, and, perhaps most importantly, that the Education Department’s position that gender identity discrimination violates Title IX of the Education Amendments Act, a federal law that bans sex discrimination in schools that receive federal money, is a misinterpretation of that statute and was not validly adopted.

This last argument rests on a plausible reading of the Administrative Procedure Act, a federal statute that specifies procedures that federal agencies must follow when they adopt new regulations. While the Education Department has not adopted a regulation on the subject, the plaintiffs make a strong argument that its enforcement of its interpretation is tantamount to a regulation.  The plaintiffs argue that the Department is not free to take such a position without going through the formalities of the Administrative Procedure Act, because the Department is enforcing its view as if it was a regulation and because the position it is taking was consistently rejected for the first several decades of Title IX’s existence.  (The statute dates from the early 1970s.)  If the courts agree, the Department would have to go through a time-consuming process that could stretch out over many months in order to adopt a valid regulation, and then the regulation would be subject to challenge in the federal appeals courts, which could tie it up in litigation for years.

On the other hand, many of the plaintiffs’ arguments have already been rejected by the Richmond-based U.S. Court of Appeals for the 4th Circuit, when it ruled on April 19 that a federal court in Virginia should have deferred to the Education Department’s interpretation of Title IX in a case brought by a transgender boy seeking appropriate restroom access in his Virginia high school.  That ruling turned on the court’s agreement with the Education Department that existing statutory provisions and regulations (which allow schools to maintain separate restrooms for males and females) were ambiguous as to how to treat transgender people, justifying the Department in adopting a position consistent with its view of the purpose of the law to provide equal educational opportunity.  The 4th Circuit held that the district court should defer to the Department’s judgment, since it was not a clearly erroneous interpretation of the statute and the existing regulations.  In the Chicago lawsuit, the plaintiffs argue that the statute and regulations are not ambiguous, but this rests on their assertion that the Congress that passed Title IX so long ago could not have intended any meaning for the term “sex” other than “biological sex” as determined at birth.  The 4th Circuit, by contrast, found that the term “sex” without any explanatory statutory definition could have a variety of meanings depend upon the context in which it was used, and is thus inherently ambiguous.

Chicago is in the 7th Circuit, so the 4th Circuit’s ruling is not binding on the lawsuit filed there.  More than thirty years ago, the 7th Circuit ruled in a case under Title VII of the Civil Rights Act that discrimination because of gender identity did not violate the sex discrimination provision and the federal court in Chicago may find itself constrained, if not directly bound, by that precedent under a different but parallel statute, although thirty years of developments in the courts have arguably rendered it obsolete.  Federal courts have generally held that the term “sex” in Title VII and Title IX should be given the same meaning, and that cases construing one of those statutes can be consulted when construing the other.

Just five days later, on May 9, there was a flurry of new litigation in the U.S. District Courts of North Carolina, focused on the bathroom provisions of H.B. 2. H.B. 2 was introduced in the state legislature, approved by both houses and signed by Governor Pat McCrory in one day, March 23.  It wiped out local government bans on sexual orientation and gender identity discrimination, quashed the right of North Carolinians to sue for any kind of discrimination in state courts, and prohibited localities from adopting their own rules on government contracting and minimum wages.  Most controversially, however, it provided that in all public facilities with restrooms, changing rooms, locker rooms and the like, multi-occupancy facilities must be segregated by biological sex, defined as the sex recorded on a person’s birth certificate.  The state’s attorney general, Roy Cooper, denounced the measure as discriminatory and said his office would not defend it.

Lambda Legal and the ACLU filed a federal lawsuit in the Middle District of North Carolina on March 28, challenging portions of H.B. 2 under the 14th Amendment and Title IX, and subsequently one of the transgender plaintiffs in the case also filed charges of discrimination under Title VII with the Equal Employment Opportunity Commission (which had ruled last year that Title VII requires employers to allow transgender employees to use restrooms consistent with their gender identity).  Within a few weeks, the 4th Circuit’s April 19 ruling in the Virginia Title IX case placed the legality of the bathroom provisions in doubt.  The controversy surrounding H.B. 2, especially the bathroom provision and the preemption of local anti-discrimination ordinances, caused adverse reactions that echoed throughout the country as governors and mayors prohibited official travel to North Carolina, some major employers announced reconsideration of plans to locate facilities there, and conventions and major musical performers cancelled activities in the state.  But Governor McCrory and the Republican state legislative leaders rejected calls to rescind the statute.

The Justice Department weighed in early in May, when the Civil Rights Division sent a letter to Governor McCrory, who had been vigorously defending the law in national media, informing him that the Justice Department considered the bathroom provision to violate federal sex discrimination laws and demanding a response by May 9. Governor McCrory’s response was to file a lawsuit on May 9, seeking a declaration from the federal district court in the Eastern District of North Carolina that the bathroom provisions did not violate federal civil rights laws.  U.S. Attorney General Loretta Lynch then held a press conference at which she unveiled a new lawsuit by the federal government against North Carolina, filed in the Middle District of North Carolina, seeking a declaration that the bathroom provision violates federal law.  Lynch’s statement, which quickly went viral on the internet, promised transgender people that the federal government recognized them and was standing behind them, thus putting the full weight of the Justice Department on the line backing the Education Department and the EEOC in their interpretations of “sex discrimination” under their respective statutes.

Since North Carolina Attorney General Cooper was refusing to defend H.B. 2, Governor McCrory retained a private lawyer, Karl S. Bowers, Jr., of Columbia, South Carolina, who filed the complaint co-signed by the governor’s General Counsel, Robert C. Stephens, and local North Carolina attorneys from the Raleigh firm of Millberg Gordon Stewart PLLC.  Presumably they will also be conducting the defense in the Justice Department’s case.  Their argument, consistent with McCrory’s public statements, was that the state was not discriminating against transgender people, merely requiring them to use alternative facilities in order to protect the privacy rights of others.  The complaint echoed the governor’s “common sense privacy policy” argument, and insisted that federal courts have “consistently” found that Title VII “does not protect transgender or transsexuality per se.”  While the complaint lists half a dozen federal court rulings supporting that position, it conveniently fails to note numerous court decisions holding to the contrary, including decisions by the 6th Circuit Court of Appeals, based in Cincinnati, and district courts in many different states.

The Justice Department will probably move to transfer McCrory’s case to the Middle District of North Carolina, where it can be consolidated with the Justice Department’s lawsuit and perhaps the pending Lambda/ACLU lawsuit. There was another lawsuit defending H.B. 2 filed on May 9 in the Eastern District court by North Carolina Senate Leader Phil Berger (R-Rockingham) and House Speaker Tim Moore (R-Cleveland), but it is hard to conceive how they could have standing to bring a federal lawsuit on their own, so it is likely to be dismissed if the government makes a motion to that effect.

Meanwhile, there were also new litigation developments in Mississippi, challenging House Bill 1523, the so-called “Protecting Freedom of Conscience from Government Discrimination Act.” HB 1523 was passed in response to the Supreme Court’s Obergefell marriage equality decision of last June 26.  Subsequent to Obergefell, the New Orleans-based 5th Circuit Court of Appeals upheld a federal district court injunction against the state of Mississippi’s enforcement of its anti-gay marriage ban, and marriage equality came to the state.  State legislators quickly went to work undermining this by devising H.B. 1523, which essentially gives government officials, businesses, and religious believers permission to discriminate against same-sex couples, provided that the discriminators have a sincere religious belief that marriage should only involve one man and one woman.  The measure is scheduled to go into effect on July 1.

The ACLU lawsuit filed on May 9 in the federal court in Jackson, Mississippi, charges that H.B. 1523 violates the 14th Amendment “by subjecting the lawful marriages of same-sex couples to different terms and conditions than those accorded to different-sex couples.”  In effect, Mississippi has set up a “separate but equal” framework, which “imposes a disadvantage, a separate status, and so a stigma upon all married same-sex couples in Mississippi.”  The lawsuit names as defendant the Mississippi State Registrar of Vital Records, Judy Moulder.

Among its many discriminatory provisions, H.B. 1523 provides that government employees “who wish to recuse themselves from issuing marriage licenses to same-sex couples” will be required to Moulder, and she will be required to maintain a list of officials who have recused themselves from providing same-sex couples with the services that are routinely provided to different-sex couples, and they will be excused from providing these services to same-sex couples. These recusant officials are also charged by the statute with a requirement to make arrangements to insure that same-sex couples do receive the services to which they are entitled, but the statute does not establish any mechanism to ensure compliance with this provision.

The ACLU lawsuit seeks a declaration from the court that H.B. 1523 is unconstitutional “on its face” and an injunction against it going into effect.   It was immediately followed by more court action, as New York attorney Roberta Kaplan, who represents the plaintiffs in the Mississippi marriage equality case, filed a motion in federal district court on May 10, asking Judge Carlton Reeves to reopen the case so they can name Judy Moulder as an additional defendant and modify his injunction to require the state to come up with the necessary procedures to ensure that same-sex couples who seek to marry will not encounter any delays due to recusals on religious grounds by state officials.  Indeed, she argues, anyone recusing themselves from serving same-sex couples should be disqualified from serving different-sex couples as well, as failure to do so would violate the obligations of all state officials to provide non-discriminatory service. The motion also asks that the list of recusant officials be posted on the website of the Registrar of Vital Records so that couples won’t have to subject themselves to the indignity of being turned away when they seek marriage licenses.

 

Mississippi Defies the 1st Amendment with “Freedom of Conscience” Law

Posted on: April 8th, 2016 by Art Leonard No Comments

On April 5 Mississippi Governor Phil Bryant signed into law H.B. 1523, a measure that received overwhelming approval in both houses of the state legislature.  Titled the “Protecting Freedom of Conscience From Government Discrimination Act,” the law was clearly intended to encourage businesses and individuals in the state to discriminate against same-sex couples, LGBT people, and even sexually-active unmarried heterosexuals.

Despite the broad wording of its title, the measure does not on its face protect freedom of conscience in general.  Instead, in Section 2, the legislature stated that “the sincerely held religious beliefs or moral convictions protected by this act are the belief or conviction that (a) Marriage is or should be recognized as the union of one man and one woman; (b) Sexual relations are properly reserved to such a marriage; and (c) Male (man) or female (woman) refer to an individual’s immutable biological sex as objectively determined by anatomy and genetics at time of birth.”  The first of these, of course, defies the Supreme Court’s 2015 ruling, Obergefell v. Hodges, that same-sex couples have a constitutional right to marry.  The second defies the 2003 ruling, Lawrence v. Texas, which held that the state may not penalize sexual relations between consenting adults in private, regardless of their sex.  And the third defies the general medical consensus that gender identity is a human characteristic that exists apart from biological sex in terms of anatomy and genetics.

The law does not specify how it will be determined that somebody sincerely holds these beliefs or is merely asserting them opportunistically to avoid liability for mistreating somebody.

In effect, Mississippi has moved to protect from any adverse consequences at the hands of the state anybody who sincerely believes that a person born with a penis can only be considered a man for the rest of their life, and similarly a person born with a vagina can only be considered a woman.  This takes things one step further than North Carolina, which provided in its notorious H.B. 2, enacted in March, that “biological sex” means the sex indicated on a person’s birth certificate.  Since North Carolina will allow people to obtain new birth certificates consistent with their gender identity upon medical certification of surgical transition, that state evidently does not officially believe that sex is quite so “immutable.”

The new law goes on to protect people who act on these beliefs in various ways.  For example, religious organizations and clergy can refuse to have anything to do with same-sex marriages, including refusing to provide facilities or services in connection with same-sex marriage or to married same-sex couples.  Businesses can refuse to provide their goods or services or accommodations to same-sex couples, and can exclude transgender people from the use of single-sex-designated facilities consistent with their gender identity.  Nobody can be subjected to loss of their tax-exempt status or denial of government contracts or benefits because they have these “protected” beliefs.  People who spout anti-LGBT rhetoric will be protected from adverse consequences as well.  They can’t be fired from government jobs for articulating such beliefs, for example.

Government employees whose jobs involve authorizing or licensing marriages can seek “recusal from authorizing or licensing lawful marriages based upon or in a manner consistent with a sincerely held religious belief or moral conviction” as defined in the statute, provided they send a written notice of such recusal to the State Registrar of Vital Records. They may not suffer any adverse consequences for recusing themselves, but “the person who is recusing himself or herself shall take all necessary steps to ensure that the authorization and licensing of any legally valid marriage is not impeded or delayed as a result of any recusal.”  Apparently, then, the person recusing themselves is responsible for being sure that somebody else who is willing to perform their duty is available to do so when the service is needed.  This provision is undoubtedly intended to shield the state from liability for refusing to provide a service that same-sex couples have a constitutional right to receive.

The law also relieves people who officiate at weddings from any obligation to perform ceremonies in violation of their sincerely held religious or moral beliefs about the invalidity of same-sex marriages. This presumably would include refusing to officiate if one of the prospective spouses is transgender and that raises religious or moral objections for the officiant because of their lack of belief in the reality of the individual’s gender identity.  OF course, such protection is completely superfluous, since nobody would seriously contend that the government can compel clergy to perform services.

The “discriminatory action” that the government is not allowed to take against people holding and acting on these beliefs goes far beyond taxes to encompass any state benefit, license, certification, accreditation, custody award or agreement, and on and on and on. The list seems to anticipate the variety of cases that have arisen around the country over the past few years in which people have suffered adverse consequences because of their religious objections to homosexuality or same-sex marriage.  For example, some people have been expelled from graduate counseling programs for refusing to provide non-judgmental counseling to gay clients, and such expulsions would clearly be prohibited by this law.  The law would also forbid denying government employment to anybody because of these sincerely held religious beliefs by the prospective employee.

The practical effect is to say that married same-sex couples can be denied a host of benefits and entitlements under a variety of programs, in blatant violation of the Supreme Court’s decision in Obergefell. Ironically, this law was enacted just days after a federal district judge in Mississippi ruled that the state’s ban on adoption of children by same-sex married couples violates the 14th Amendment in light of Obergefell.   And the law erects a structure somewhat akin to apartheid around same-sex marriages.

The measure seems clearly unconstitutional under the Establishment Clause of the 1st Amendment, since it exalts and privileges particular religious beliefs and those who hold them for “special rights.”  On the other hand, some of the law is “merely” symbolic for several reasons.  First, since neither Mississippi nor any of its political subdivisions expressly outlaws discrimination in employment, housing or public accommodations because of sexual orientation or gender identity, people or businesses acting to deny goods, services or accommodations to LGBT people and same-sex couples could do so freely without any consequence under state law before this measure was enacted.  Second, due to the Supremacy Clause of the federal constitution, federal constitutional and statutory rights take priority over state law.

Thus, for example, under Title IX of the U.S. Education Amendments Act as interpreted by the U.S. Department of Education, educational institutions in Mississippi that receive federal money (which would be just about all of them) may not discriminate against transgender individuals because of their gender identity, and under Title VII of the Civil Rights Act of 1964 as interpreted by the Equal Employment Opportunity Commission and the U.S. Department of Justice, employers in Mississippi may not discrimination because of sexual orientation or gender identity.

And, of course, as a federal court ruled days earlier, state policies denying equal rights and benefits to married same-sex couples can be challenged under the 14th Amendment’s Equal Protection Clause.

The main question now is who will file for the first lawsuit to challenge this travesty. Robbie Kaplan, the fearless slayer of DOMA, victorious advocate in the Mississippi marriage equality lawsuit, and representative of the plaintiffs in the same-sex parents adoption case, would be our candidate.