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California Judge Issues Unprecedented Ruling in Favor of Baker Who Declined to Make Wedding Cake for Same-Sex Couple

Posted on: February 8th, 2018 by Art Leonard No Comments

Breaking a consensus among courts that has developed over the past several years that people with religious or moral objections to same-sex weddings are not entitled to exempt their business from selling goods or services for such events, Kern County (California) Superior Court Judge David Lampe ruled on February 5, 2018, in Department of Fair Employment and Housing v. Miller, BCV-17-102855, that Cathy Miller, owner of Cathy’s Creations, Inc., doing business as Tastries Bakery in Bakersfield, California, is entitled to a First Amendment exemption from complying with California’s law that bans sexual orientation discrimination by businesses.  Judge Lampe is the first to rule in favor of a business in such a case.

Miller refused to make a wedding cake for Eileen and Mireya Rodriguez-Del Rio, who came to her bakery in August 2017 to plan for a celebration to take place in October.  They had selected a design of a cake in the display case, but since their celebration would not be until October, the transaction would be for Miller to prepare a cake specifically for their event.  “The couple did not want or request any written words or messages on the cake,” wrote the judge in his opinion.  Nonetheless, Miller refused to make it because of her religious objections to same-sex marriage, and offered to refer them to another bakery in town that was happy to make wedding cakes for same-sex couples.

Eileen and Mireya filed an administrative complaint, charging Miller and her business with a violation of the Unruh Civil Rights Act, California’s law that prohibits discrimination by businesses.  The Department of Fair Employment and Housing, with is charged with enforcement of the law, filed suit against the bakery, asking the court to issue an injunction requiring that Miller’s business not refuse to make wedding cakes for same-sex couples.

Miller’s defense relied on two provisions of the First Amendment of the U.S. Constitution, one forbidding laws that abridge freedom of speech, and the other forbidding laws that prohibit the free exercise of religion.   Judge Lampe decided that this case could be resolved most easily by reference to the free speech provision, and did not render a ruling on whether the free exercise of religion clause would protect Miller in this case.

The judge accepted Miller “cake artist” argument, the same argument that Jack Phillips of Masterpiece Cakeshop in Colorado is making in his case pending before the U.S. Supreme Court.  Miller and Phillips argue that when they are contracting to produce a cake for a specific event, they are engaging in a creative effort that communicates a message of endorsement for that event.  Under this theory of symbolic speech, they argue, requiring them to make the cake when they do not approve of the event is compelling them to voice a particular message.

They rely on past decisions in which the Supreme Court has found that government officials had violated free speech rights by compelling people to voice particular messages with which they disagree, such as the famous “flag salute” cases first decided during World War II and most recently reiterated in  Wooley v. Maynard, 430 U.S. 705 (1977), in which the Court famously reversed direction on this issue, overruling its own prior precedent to find that the government cannot compel a student to recite the pledge of allegiance.  Although there are circumstances where the courts have held that government requirements did not impose a substantial burden on free speech, the compelled speech argument has taken on particular weight in several important LGBT-related rulings.

The Supreme Court unanimously ruled in Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995), for example, that Massachusetts civil rights authorities could not compel the organizers of the Boston St. Patrick’s Day Parade to include an LGBT rights contingent in the parade with a banner proclaiming their identity.  The court said this would unconstitutionally compel the parade organizers to include a message in their event that they did not want to include.  Similarly, although more controversially, the Court later ruled in Boy Scouts of America v. Dale, 530 US 640 (2000), that the BSA was not required to allow an openly gay man to service as an adult leader, because that would be compelling them to implicitly send a message of endorsement for homosexuality which they did not want to communicate to their members or the public.  Unlike the unanimous parade decision, however, the Court split 5-4 in the Boy Scouts case, with a minority rejecting the contention that the BSA’s free speech rights would be unconstitutionally burdened.

Despite these rulings, the Court concluded that Congress did not unconstitutionally burden the free speech rights of law schools when it required them to allow military recruiters equal access to their facilities, reasoning that the schools were free to communicate their disagreement with the anti-gay policies then followed by the Defense Department and that hosting the recruiters was not necessarily sending a message of agreement with their policies.  Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47 (2006).  And the Court concluded that a state university law school was not violating the free speech or free exercise rights of conservative Christian students when it required a Christian Legal Society chapter to allow gay students to be members if CLS wanted to be an officially recognized student organization.  Christian Legal Society v. Martinez, 130 S. Ct. 2971 (2010).

It is difficult to follow a consistent thread of reasoning through these cases, each of which presents a slightly different factual context, which is why there is some suspense about how the Supreme Court is going to decide the Masterpiece Cakeshop case.  So far, however, lower courts have been unanimous in ruling that bakers, florists, photographers, videographers, non-religious wedding venues are all required to comply with public accommodations laws (in states where they exist) and provide their services and goods to same-sex couples celebrating their unions.

Judge Lampe, the first to depart from this consensus, accepted Miller’s compelled speech argument.  “No public commentator in the marketplace of ideas may be forced by law to publish any opinion with which he disagrees in the name of equal access,” wrote the judge.  “No baker may place their wares in a public display case, open their shop, and then refuse to sell because of race, religion, gender, or gender identification.”

But, he wrote, this case is different. “The difference here is that the cake in question is not yet baked.  The State is not petitioning the court to order defendants to sell a cake.  The State asks this court to compel Miller to use her talents to design and create a cake she has not yet conceived with the knowledge that her work will be displayed in celebration of a marital union her religion forbids.  For this court to force such compliance would do violence to the essentials of Free Speech guaranteed under the First Amendment.”

Judge Lampe acknowledged that there was a clash of rights here, and no matter which way he ruled, somebody would feel insulted. “The court finds that any harm here is equal to either complainants or defendant Miller, one way or the other. If anything, the harm to Miller is the greater, because it carries significant economic consequences.  When one feels injured, insulted, or angered by the words or expressive conduct of others, the harm is many times self-inflicted.  The most effective Free Speech in the family of our nation is when we speak and listen with respect.  In any case, the court cannot guarantee that no one will be harmed when the law is enforced.  Quite the contrary, when the law is enforced, someone necessarily loses.  Nevertheless, the court’s duty is to the law.  Whenever anyone exercises the right of Free Speech, someone else may be angered or hurt.  This is the nature of a free society under our Constitution.”

The judge acknowledged that the case is more difficult if it is treated as a free exercise of religion case, because the Supreme Court has ruled that neutral state laws of general application do not include within them a constitutional exemption for religious dissenters. “Whether the application of the Unruh Act in these circumstances violates the Free Exercise clause is an open question,” he wrote, “and the court does not address it because the case is sufficiently resolved upon Free Speech grounds.”

Interestingly, the judge’s approach mirrors that of U.S. Solicitor General Noel Francisco in the Masterpiece Cakeshop case before the Supreme Court. In briefing and argument, the Solicitor General placed the government’s support for Jack Phillips’ right to refuse to make the wedding cake entirely on Free Speech grounds, and disclaimed taking any position on his right of free exercise of religion – despite the Trump Administration’s more general position, expressed in a “religious freedom” memorandum by Attorney General Jeff Sessions, that religious free exercise rights should be treated as superior to just about any other legal claim.

Perhaps Judge Lampe’s decision is truly an outlier in the ongoing controversies stemming from the Supreme Court’s ruling in 2015 that same-sex couples have a constitutional right to marry, but on the other hand it may be an accurate prediction of how the Supreme Court will deal with the issue, at least in cases where the goods or services at issue could be plausibly described in terms of expressive content.

New York Appellate Division Revives Gay Police Officer’s Discrimination & Retaliation Case Against NYPD

Posted on: February 4th, 2018 by Art Leonard No Comments

While hesitant to accuse the New York City Police Department, New York City Law Department, and a Supreme Court Justice of bizarre thinking, that is the only conclusion we can draw from Harrington v. City of New York, 2018 WL 503144, 2018 N.Y. App. Div. LEXIS 392 (N.Y. App. Div., 1st Dept., Jan. 23, 2018), where a unanimous five-judge panel of the Manhattan-based Appellate Division, 1st Department, reversed a decision by Justice James E. d’Auguste from October 13, 2016, in which he reiterated a prior decision entered on November 12, 2015, to dismiss sexual orientation discrimination and retaliation claims by Michael Harrington, a former NYPD auxiliary police officer.

Harrington worked as an auxiliary police officer from 2002 until 2009, then resigned to take a police officer position in California. Evidently unhappy away from NYC, he sought to be reinstated as a police officer with NYPD in June 2009, passing a psychological exam. After his request for reinstatement was denied, he filed a new application, passing the written exam in 2010.  While his application was pending, he accepted law enforcement positions with sheriff’s departments in Arizona and Missouri, passing a psychological evaluation for both of those positions.  In September 2013, he began working as a corrections officer for the NYC Department of Correction, passing yet another psych evaluation, and he continues to serve in that position while pursuing his goal of joining the NYPD.

While employed as an auxiliary, he filed a sexual orientation discrimination complaint with the Department in 2007, which was eventually settled at the end of 2013 with a payment to him of $185,000. Assuming the City does not throw large sums of money at discrimination grievances if it believes there is no merit to their claims, one can reasonably infer that he had a decent case.  After he had signed the settlement agreement and waiver of claims on December 12, 2013, he was instructed to proceed with his then-pending 2010 application to join the NYPD, submitted to another psychological evaluation, and waited.

He was told that his application was “being held on a psychological review” which lasted more than a year. Finally, he was told that the NYPD found him not psychologically fit to be a police officer, based on the police psychologist’s conclusion that he “relied chiefly on litigation to resolve issues,” citing his 2007 discrimination claim as evidence of his “poor stress tolerance.”  Evidently, in the opinion of this psychologist, implicitly adopted by the Department, police officers who complain about discrimination against them have “poor stress tolerance” and if they pursue their claims in a legal forum, that indicates psychological unfitness to be a cop.  Stated otherwise, the unwritten policy of the NYPD is that police officers who encounter discrimination in the Department should just suck it up, and those who don’t are unfit for the force.  Wow!

Harrington got an independent psychologist to do an evaluation, and this produced the same result as the numerous other evaluations he has gone through, finding him fit to be a police officer. He also found evidence that the Department’s psychologist had omitted from his report the data showing that Harrington “met or exceeded requirements in every area of the ‘Job Suitability Snapshot,’” and omitted the psychologist’s own notes showing that Harrington’s “thought processes were ‘coherent’” and within normal limits.  His internal appeal of this rejection of his application was turned down and he filed this lawsuit, seeking damages and an order that the NYPD hire him.

Justice d’Auguste granted a motion to dismiss Harrington’s sexual orientation discrimination and retaliation claims. Reversing the trial judge, the Appellate Division panel (Justices Gische, Webber, Oing, Singh, and Moulton) concluded that his factual allegations were, rather obviously, sufficient to state claims for discrimination and retaliation.  After reciting the factual allegations now on the record, the court said that “the foregoing, taken together, and affording plaintiff the benefit of every favorable inference, establishes prima facie that defendants discriminated against plaintiff on account of his sexual orientation in finding him psychologically unfit to serve.”

It was also clear that the basis for the NYPD’s action was sufficient to ground a retaliation claim. “Plaintiff alleges that in retaliation for his having commenced the 2007 action against defendants, they placed a psychological hold on his present application for employment in 2014, and ultimately found him psychologically unfit for the position.”  After finding that the settlement agreement he had signed in 2013 did not bar the present action, because the release he signed applied only to claims arising up to that time, the court stated the obvious: “In finding plaintiff psychologically unfit, defendants’ police psychologist relied on plaintiff’s 2007 action against defendants.  Specifically, the police psychologist’s report stated that plaintiff had ‘poor stress tolerance’ and relied ‘chiefly on litigation to resolve issues.’  The 2007 litigation serving as the psychological disqualifier is sufficient to plead the causal connection between the protected activity and the adverse action in this case.”

The court rejected the defendants’ disingenuous argument that the 2007 action was “not sufficiently temporally proximate to the alleged adverse action to support the causal connection” for a retaliation claim. “Plaintiffs’ allegations are sufficient to permit the inference that the reason plaintiff was found psychologically unfit to serve was because he brought the 2007 action against defendants.  This, along with the extensive history of having been found psychologically fit to serve as a police officer and in similar positions, supports an inference that the disqualification was retaliation for bringing the 2007 action.”  Time for a new settlement offer from the City Law Department?

Harrington is represented by Naved Amed of Amed Marzano & Sediva PLLC.

TWO MORE LGBTQ-RELATED CONTROVERSIES DROP OFF THE SUPREME COURT DOCKET

Posted on: January 10th, 2018 by Art Leonard No Comments

As the Supreme Court’s 2017-18 Term began in October, it looked like a banner term for LGBTQ-related cases at the nation’s highest court. Petitions were pending asking the Court to address a wide range of issues, including whether LGBTQ people are protected against discrimination under federal sex discrimination laws covering employment (from Georgia) and educational opportunity (from Wisconsin), whether LGBTQ people in Mississippi had standing to seek a federal order to prevent a viciously anti-gay religiously-motivated law from going into effect, and whether the Texas Supreme Court erred in holding that Obergefell v. Hodges, 135 S. Ct. 2584 (2015), did not necessarily require a municipal employer to treat same-sex married couples the same as different-sex married couples in their employee benefits plans.  The Court had already granted review in a “gay wedding cake” case from Colorado (Masterpiece Cakeshop, which was argued on December 5), and another petition involving a Washington State florist who refused to provide floral decorations for a same-sex wedding was waiting in the wings.

 

But the hopes for a blockbuster term have rapidly faded. In December, the Court declined to hear the employee benefits case and the Title VII employment discrimination case.  And now in January, the Court has declined to hear the Mississippi cases, Barber v. Bryant and Campaign for Southern Equality v. Bryant, and the Wisconsin case, Whitaker v. Kenosha Unified School District, has settled, with the school district agreeing to withdraw its Supreme Court petition.   It may be that the only LGBTQ-related issue that the Court decides this term is the one it heard argued in December: whether a business owner’s religious objections to same-sex marriage or his right to freedom of speech would privilege him to refuse to make a wedding cake for a same-sex couple.  An opinion expected sometime in the coming months.

On January 8, the Supreme Court refused to review a ruling by the 5th Circuit Court of Appeals, Barber v. Bryant, 860 F.3d 345 (5th Cir.), petition for rehearing en banc denied, 872 F.3d 671 (2017), which had dismissed a constitutional challenge to Mississippi’s infamous H.B. 1523, a law enacted in 2016 that protects people who discriminate against LGBTQ people because of their religious or moral convictions.  The 5th Circuit had ruled that none of the plaintiffs – either organizations or individuals – in two cases challenging the Mississippi law had “standing” to bring the lawsuits in federal court.

H.B. 1523, which was scheduled to go into effect on July 1, 2016, identifies three “religious beliefs or moral convictions” and protects against “discrimination” by the state anybody who acts in accord with those beliefs in a wide range of circumstances. The beliefs, as stated in the statute, 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) refers to an individual’s immutable biological sex as objectively determined by anatomy and genetics at time of birth.”  Among other things, the law would protect government officials who rely on these beliefs to deny services to individuals, and would preempt the handful of local municipal laws in the state that ban discrimination because of sexual orientation or gender identity, so that victims of discrimination would have no local law remedy.  Mississippi does not have a state law banning sexual orientation or gender identity discrimination, so H.B. 1523 in relation to private businesses and institutions was mainly symbolic when it came to activity taking place outside of the cities of Jackson, Hattiesburg and Oxford, or off the campus of the University of Southern Mississippi.

Two groups of plaintiffs brought constitutional challenges against the law in the U.S. District Court for the Southern District of Mississippi, where the case came before Judge Carlton W. Reeves, the same judge who ruled for plaintiffs in a case challenging Mississippi’s ban on same-sex marriage a few years earlier. He issued a preliminary injunction against implementation of H.B. 1523 on June 30, 2016, the day before it was to go into effect, finding that it would violate the 1st Amendment by establishing particular religious beliefs as part of the state’s law.  The plaintiffs also challenged it on Equal Protection grounds. Judge Reeves refused to stay his preliminary injunction, and so did the 5th Circuit.

The state appealed the grant of preliminary injunction to the 5th Circuit, where a unanimous three-judge panel ruled on June 22, 2017, that the district court did not have jurisdiction to issue the injunction because, according to the opinion by Circuit Judge Jerry Smith, none of the plaintiffs could show that they had suffered or were imminently likely to suffer a “concrete and particularized injury in fact,” which was necessary to confer the necessary “standing” to challenge the law in federal court.  In the absence of standing, he wrote, the preliminary injunction must be dissolved and the case dismissed.

The plaintiffs asked the full 5th Circuit to reconsider the ruling en banc, but the circuit judges voted 12-2 not to do so, announcing that result on September 29.  The dissenters, in an opinion by Judge James L. Dennis, bluntly stated that “the panel decision is wrong” and “misconstrues and misapplies the Establishment Clause precedent.”  Indeed, wrote Judge Dennis, “its analysis creates a conflict between our circuit and our sister circuits on the issue of Establishment Clause standing.”

Judge Dennis pressed home the point by citing numerous cases from other circuits which, he held, would support allowing the plaintiffs in this case to seek a preliminary injunction blocking the law from going into effect.  This gave hope to the plaintiffs that they might be able to get the Supreme Court to take the case and reverse the 5th Circuit, since one of the main criteria for the Supreme Court granting review is to resolve a split in authority between the circuit courts on important points of federal law.

However, on January 8 the Court denied the petitions the two plaintiff groups had filed, without any explanation or open dissent, leaving unresolved important questions about how and when people can mount a federal court challenge to a law of this sort. In the meantime, shortly after the 5th Circuit had denied reconsideration, H.B. 1523 went into effect on October 10.

A challenge to H.B. 1523 continues in the District Court before Judge Reeves, as new allegations by the plaintiffs require reconsideration of their standing and place in question, especially in light of the Supreme Court’s June 2017 ruling, Pavan v. Smith, 137 S. Ct. 2075, whether the law imposes unconstitutional burdens on LGBTQ people seeking to exercise their fundamental constitutional rights.

Two days after the Court announced it would not review the 5th Circuit ruling, the parties in Whitaker, 858 F. 3d 1034 (7th Cir. 2017), involving the legal rights of transgender students under Title IX of the Education Amendments of 1972 and the Equal Protection Clause of the 14th Amendment, announced a settlement.  Under their agreement the school district will withdraw its cert petition.

The Supreme Court had been scheduled to hear a similar transgender student case last March, Gloucester County School Bd. v. G. G. ex rel. Grimm, but that case was dropped from the docket after the Trump Administration withdrew a Guidance on Title IX compliance that had been issued by the Obama Administration.  Since the 4th Circuit’s decision in Gavin Grimm’s case had been based on that Guidance rather than on a direct judicial interpretation of the statute, the Supreme Court vacated the 4th Circuit’s ruling and sent the case back to the 4th Circuit for reconsideration. See 137 S. Ct. 1239 (Mar. 6, 2017). That court, in turn, sent it back to the district court, which dismissed the case as moot since Grimm had graduated in the interim.

Ashton Whitaker is a transgender boy who graduated from Tremper High School in the Kenosha School District last June. His case would have given the Supreme Court a second chance to address the Title IX issue.  Whitaker transitioned while in high school and asked to be allowed to use the boys’ restroom facilities, but district officials told him that there was an unwritten policy restricting bathroom use based on biological sex.  He sued the district under Title IX and the Equal Protection Clause.  U.S. District Judge Panela Pepper (E.D. Wisconsin) issued a preliminary injunction on Whitaker’s behalf in September 2016, and refused to stay it pending appeal.  See 2016 WL 5239829 (Sept. 22, 2016).

On May 30, 2017, the 7th Circuit upheld Judge Pepper’s ruling, finding that even though the Trump Administration had withdrawn the prior Title IX Guidance, both Title IX and the 14th Amendment require the school to recognize Whitaker as a boy and to allow him to use boys’ restroom facilities.  The school district petitioned the Supreme Court on August 25 to review the 7th Circuit’s decision, even though Whitaker had graduated in June.

In the meantime, Judge Pepper ordered the parties to mediation to attempt a settlement. Whitaker’s graduation in June undoubtedly contributed to the pressure to settle, and the parties asked the Supreme Court several times to extend the deadline for Whitaker to file a formal response to the petition as the negotiations continued.  According to press reports on January 10, the case settled for $800,000 and an agreement that the district would withdraw its petition.

The settlement and withdrawal of the petition leaves the 7th Circuit’s opinion standing as the first federal circuit court ruling to hold on the merits that Title IX and the 14th Amendment require public schools to respect the gender identity of their students and to allow students to use sex-designated facilities consistent with their gender identity.  However, lacking a Supreme Court ruling on the point this decision is only binding in the three states of the 7th Circuit: Wisconsin, Illinois, and Indiana, the same three states bound by another 7th Circuit last year holding that employment discrimination because of sexual orientation violates Title VII of the Civil Rights Act of 1964.

 

Oregon Court of Appeals Rules against Baker in “Gay Wedding Cake” Case

Posted on: December 31st, 2017 by Art Leonard No Comments

A unanimous three-judge panel of the Court of Appeals of Oregon affirmed a ruling by the Oregon Bureau of Labor and Industries (BOLI) that Melissa and Aaron Klein, doing business as Sweetcakes by Melissa, violated the state’s public accommodations law by refusing to provide a wedding cake for Rachel and Laurel Bowman-Cryer.  The ruling upheld an award of $135,000 in damages, rejecting the Kleins’ argument that this application of the state law to them violates their 1st Amendment rights.  However, the court overruled the BOLI’s determination that the Kleins’ public remarks in connection with this case had also violated a separate section of the law forbidding businesses to announce in advance that they will discriminate in the future.  Judge Chris Garrett wrote for the panel.

This case is, for all practical purposes, a virtual clone of the Colorado case, Masterpiece Cakeshop, which was argued at the U.S. Supreme Court on December 5, 2017.

Rachel and Laurel first met in 2004 and decided to marry in 2012. Rachel and her mother, Cheryl, went to a Portland bridal show as part of their wedding planning, and visited Melissa Klein’s booth at the show.  Sweetcakes by Melissa had designed, created and decorated a wedding cake for Cheryl’s wedding two years before, and Rachel and Cheryl told Melissa that they would like to order a cake from her.  A cake-testing appointment was set up for January 17, 2013.  Rachel and Cheryl visited the bakery shop, in Gresham, for their appointment.  Melissa was at home performing child care, so the appointment was with her husband and co-proprietor, Aaron.  During the tasting, Aaron asked for the names of the bride and groom, and was told there were two brides, Rachel and Laurel.  “At that point,” wrote Judge Garrett, “Aaron stated that he was sorry, but that Sweetcakes did not make wedding cakes for same-sex ceremonies because of his and Melissa’s religious convictions.  Rachel began crying, and Cheryl took her by the arm and walked her out of the shop.  On the way to their car, Rachel became ‘hysterical’ and kept apologizing to her mother, feeling that she had humiliated her.”

In their car, Cheryl assured Rachel that they would find somebody else to make the cake. After driving a short distance, Cheryl turned back and re-entered the bakery by herself to talk with Aaron.  “During their conversation,” wrote Judge Garrett, “Cheryl told Aaron that she had previously shared his thinking about homosexuality, but that her ‘truth had changed’ as a result of having ‘two gay children.’  In response, Aaron quoted a Bible passage from the Book of Leviticus, stating, ‘You shall not lie with a male as one lies with a female; it is an abomination.’  Cheryl left and returned to the car, where Rachel had remained, ‘holding [her] head in her hands, just bawling.”  Cheryl telling Rachel that Aaron had called her an “abomination” didn’t make things any better.  Rachel later stated that “it made me feel like they were saying God made a mistake when he made me, that I wasn’t supposed to be, that I wasn’t supposed to love or be loved or have a family or live a good life and one day go to heaven.”  When they got home and told Laurel what had happened, she recognized the “abomination” reference from Leviticus and “felt shame and anger.  Rachel was inconsolable, which made Laurel even angrier.”  It was Laurel who filed an online complaint with the Oregon Department of Justice, but later she filed a complaint with BOLI, as did Rachel.

News of the complaints generated a wave of media attention, which resulted in death threats and adverse attention to Rachel and Laurel as well as to the Kleins. Ultimately, BOLI’s investigation concluded that the Kleins violated two sections of the public accommodations law, one forbidding discrimination by businesses in providing goods and services because of the sexual orientation of customers, the other, based on statements that the Kleins had made about the case, as well as a sign they posted in their bakery, that they violated a provision making it unlawful for a business to announce its intent to discriminate against customers because of their sexual orientation.  An administrative law judge (ALJ) sustained the first but not the second, finding that the comments in question related to the Klein’s position on this case and was not a general announcement of intent to discriminate in the future.  At the agency level, however, BOLI, disagreeing with the ALJ on this point, ruled that both provisions had been violated, and the Kleins appealed to the Court of Appeals.  The ALJ and BOLI agreed on an award of $135,000 in damages to Rachel and Laurel, to compensate them for the mental, emotional or physical suffering sustained because of the discrimination.  The agency rejected a claim for additional damages for mental, emotional or physical suffering stemming from the media and public response to their filing of the discrimination charges against the Kleins.

The first issue for the court was to determine whether the Kleins were correct in arguing that they had not violated the statute because, as they contended, their business does not discriminate against people because of their status as gay, but rather, in this instance, was declining to “facilitate the celebration of a union that conveys a message about marriage to which they do not subscribe and that contravenes their religious beliefs.” The court rejected this attempt to skirt the issue, commenting that “there is no reason to believe that the legislature intended a ‘status/conduct’ distinction specifically with regard to the subject of ‘sexual orientation.’”
Judge Garrett pointed to the state’s passage of the Oregon Family Fairness Act, which specifically provides that same-sex couples should be entitled to the same rights and privileges of different-sex couples. “The Kleins have not provided us with any persuasive explanation for why the legislature would have intended to grant equal privileges and immunities to individuals in same-sex relationships while simultaneously excepting those committed relationships from the protections of” the public accommodations law. The court pointed out that “under the distinction proposed by the Kleins, owners and operators of businesses could continue to oppress and humiliate black people simply by recasting their bias in terms of conduct rather than race.  For instance, a restaurant could refuse to serve an interracial couple, not on account of the race of either customer, but on account of the conduct – interracial dating – to which the proprietor objected.  In the absence of any textual or contextual support, or legislative history on that point, we decline to construe [the law] in a way that would so fundamentally undermine its purpose.”

Indeed, wrote the court, “The Kleins refused to make a wedding cake for the complainants precisely and expressly because of the relationship between sexual orientation and the conduct at issue (a wedding).  And, where a close relationship between status and conduct exists, the Supreme Court has repeatedly rejected the type of distinction urged by the Kleins.”  Judge Garrett cited the Supreme Court’s 2010 ruling, upholding the University of California-Hasting’s refusal to extend official recognition to a Christian Legal Society chapter whose membership policies excluded gay people, in which Justice Ruth Bader Ginsburg, writing for the Court, made this point, as well as Lawrence v. Texas, the Texas sodomy law case, where Justice Kennedy wrote for the Court that making gay conduct a crime was “an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.”

Turning to the constitutional challenges, the court rejected both the free speech and free exercise of religion arguments. For one thing, the court found, while conceding there would be an element of artistic expression and creativity in the process of making a wedding cake, this did not present the type of free speech issues that would merit strict scrutiny from the court.  Rather, the court found, the Supreme Court’s public accommodations jurisprudence treated such laws as neutral laws intended to achieve a legitimate purpose of extending equal rights to participate in the community, and not specifically targeted on particular political or religious views held by a particular business person.  The Kleins premised their arguments largely on the Supreme Court’s Hurley (St. Patrick’s Day Parade) and Dale (Boy Scouts) cases, in which the Supreme Court held that application of a public accommodations law to require an organization or association to include gay people would have to yield to the free expression rights of an organization that has a particularly expressive purpose.  They also focused on the famous flag salute cases from World War II and other cases in which the Supreme Court ruled that the government cannot compel private individuals to express a message dictated by the government.

Wrote Judge Garrett, “We must decide whether the Kleins’ cake-making activity is sufficiently expressive, communicative, or artistic so as to implicate the First Amendment, and, if it is, whether BOLI’s final order compelling the creation of such expression in a particular circumstance survives First Amendment scrutiny.” Reviewing the way the Kleins produced customized wedding cakes for their customers, the court found, “the Kleins’ argument that their products entail artistic expression is entitled to be taken seriously.  That being said, we are not persuaded that the Kleins’ wedding cakes are entitled to the same level of constitutional protection as pure speech or traditional forms of artistic expression.  In order to establish that their wedding cakes are fundamentally pieces of art, it is not enough that the Kleins %believe% them to be pieces of art.  For First Amendment purposes, the expressive character of a thing must turn not only on how it is subjectively perceived by its maker, but also on how it will be perceived and experienced by others.  Here, although we accept that the Kleins imbue each wedding cake with their own aesthetic choices, they have made no showing that other people will necessarily experience %any% wedding cake that the Kleins create predominantly as ‘expression’ rather than as food.”

Further, the court found that it would be a different case “if BOLI’s order had awarded damages against the Kleins for refusing to decorate a cake with a specific message requested by a customer (‘God Bless This Marriage,’ for example) that they found offensive or contrary to their beliefs.” Then an articulated message would be conveyed, and the First Amendment issue would be much stronger.  Responding to the Kleins’ concern that the wedding cake communicates a “celebratory message” about the wedding, which they did not wish to communicate, the court pointed out that “the Kleins have not raised a nonspeculative possibility that anyone attending the wedding will impute that message to the Kleins.”  In short, wedding guests will not respond to seeing the cake at the reception by thinking that the baker is “celebrating” or “approving” this wedding.  There is nothing in the law that requires the Kleins to formally endorse same-sex marriages.

However, having found that there is at least some First Amendment free speech interest involved, the court applied “intermediate scrutiny” and found that the state had a compelling interest “both in ensuring equal access to publicly available goods and services and in preventing the dignitary harm that results from discriminatory denials of service. That interest is no less compelling with respect to the provision of services for same-sex weddings,” wrote Garrett.  “Indeed, that interest is particularly acute when the state seeks to prevent the dignitary harms that result from the unequal treatment of same-sex couples who choose to exercise their fundamental right to marry,” as established in Obergefell, the Supreme Court’s marriage equality decision.

The court concluded that “any burden imposed on the Kleins’ expression is no greater than essential to further the state’s interest,” pointing out that “BOLI’s order does not compel the Kleins to express an articulable message with which they disagree. … Given that the state’s interest is to avoid the ‘evil of unequal treatment, which is the injury to an individual’s sense of self-worth and personal integrity,’” wrote Garrett, quoting from a prior Oregon Supreme Court case, “there is no doubt that interest would be undermined if businesses that market their goods and services to the ‘public’ are given a special privilege to exclude certain groups from the meaning of that word.”

Turning to the free exercise of religion point, the court noted that the Supreme Court held in Employment Division v. Smith that “the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribed (or prescribes) conduct that his religion prescribes (or proscribes).”  The “incidental effect” on religion of such laws does not violate the 1st Amendment.

The court devoted most of its analysis on this point to distinguishing cases offered by the Kleins as exceptions to this rule. All of those cases involved special circumstances where it could be shown that although the laws in question were neutral on their face, they had been intended by the legislature to apply to particular religious practices and were thus not really “neutral to religion.”  The Kleins also pushed a “hybrid rights” theory, mentioned in passing in the Smith case, under which when a party’s claim arises under two different constitutional rights guarantees (in this case speech and religious exercise) the burden of justification on the state should be raised to strict scrutiny.  The court observed that apart from the passing mention in Smith, that concept had not been developed by the Supreme Court, had been rejected by many other courts, and specifically had never been adopted by the Oregon Supreme Court in construing the state’s constitution.

The court rejected the Kleins’ arguments that recognizing a limited or narrow exception for businesses whose owners had religious objections to same-sex marriage would have only a “minimal” effect on “the state’s antidiscrimination objectives,” pointing out that “those with sincere religious objections to marriage between people of different races, ethnicities, or faiths could just as readily demand the same exemption. The Kleins do not offer a principled basis for limiting their requested exemption in the manner that they propose, except to argue that there are ‘decent and honorable’ reasons, grounded in religious faith, for opposing same-sex marriage, as recognized by the United States Supreme Court in Obergefell.  That is not in dispute.  But neither the sincerity, nor the religious basis, nor the historical pedigree of a particular belief has been held to give a special license for discrimination,” wrote Garrett.

The court rejected the Kleins’ claim for free speech and religious exemptions under the Oregon Constitution, pointing out that they had not advanced any additional arguments peculiar to Oregon constitutional jurisprudence that would justify going beyond the federal constitutional analysis in this case. The court also rejected the argument that BOLI’s ruling should be set aside because BOLI’s Commissioner had made public comments about the case before voting to affirm the ALJ’s ruling and award the damages.  The court found that the commissioner’s comments “fall short of the kinds of statements that reflect prejudgment of the facts or an impermissibly closed-minded view of law or policy so as to indicate that he, as a decision maker, cannot be impartial.”  The court rejected the Kleins’ objection to the damage award, finding that the ALJ and BOLI had scrupulously limited the award to damages flowing from the Kleins’ discrimination and had an adequate basis in the trial record to award the amounts in question, which were not out of line with awards in other cases.

However, the court concluded that BOLI erred by failing to affirm the ALJ’s conclusion that the Kleins had not violated a section of the law that forbids any business “to publish, circulate, issue or display… any communication, notice, advertisement or sign of any kind to the effect that any of the accommodations, advantages, facilities, services or privileges of the place of public accommodation will be refused, withheld from or denied to, or that any discrimination will be made against, any person on account of. . . sexual orientation.” The court, agreeing with the ALJ but not with BOLI, found that the Kleins’ public comments about their determination to defend this case and to adhere to their religious beliefs did not specifically violate this provision.

The Kleins were careful in wording the sign they put up at their bakery and in their comments on Facebook and in the press to avoid stating that they would discriminate because of a customer’s sexual orientation. Their position throughout this case is that they were not engaging in such discrimination.  The court was not willing to interpret this section of the statute as exposing businesses to additional liability for stating publicly their belief that their past action had not violated the law.  Since BOLI’s calculation of damages awarded to Rachel and Laurel did not include any amount for violation of this section, however, the reversal of this part of the decision did not require any reduction in damages.

The Kleins were represented in this appeal by attorneys from several law firms, some specializing in championing socially conservative causes, so it would not be surprising to see them file an appeal with the Oregon Supreme Court. The Oregon attorney general’s office represented BOLI.  Lambda Legal filed an amicus brief on behalf of Rachel and Laurel.  A long list of liberal religious associations and organizations joined in an amicus brief filed by pro bono attorneys in support of BOLI’s ruling, and amicus briefs were also filed by the ACLU and Americans United for Separation of Church and State.

Supreme Court Denies Review in Title VII Sexual Orientation Discrimination Case

Posted on: December 11th, 2017 by Art Leonard No Comments

The U.S. Supreme Court announced on December 11 that it will not review a decision by a three-judge panel of the Atlanta-based 11th Circuit Court of Appeals, which ruled on March 10 that a lesbian formerly employed as a security guard at a Georgia hospital could not sue for sexual orientation discrimination under Title VII of the Civil Rights Act of 1964.  The full 11th Circuit denied a motion to reconsider the case on July 10, and Lambda Legal, representing plaintiff Jameka Evans, filed a petition with the Supreme Court seeking review on September 7.  Evans v. Georgia Regional Hospital, 850 F.3d 1248 (11th Cir. 2017), rehearing en banc denied, 7/6/2017, cert. denied, 2017 WL 4012214 (12/11/2017).

At the heart of Lambda’s petition was an urgent request to the Court to resolve a split among the lower federal courts and within the federal government itself on the question whether Title VII, which bans employment discrimination because of sex by employers that have at least 15 employees, can be interpreted to ban discrimination because of sexual orientation.

Nobody can deny that members of Congress voting on the Civil Rights Act in 1964 were not thinking about banning sexual orientation discrimination at that time, but their adoption of a general ban on sex discrimination in employment has been developed by the courts over more than half a century to encompass a wide range of discriminatory conduct reaching far beyond the simple proposition that employers cannot discriminate against an individual because she is a woman or he is a man.

Early in the history of Title VII, the Supreme Court ruled that employers could not treat people differently because of generalizations about men and women, and by the late 1970s had accepted the proposition that workplace harassment of women was a form of sex discrimination. In a key ruling in 1989, the Court held that discrimination against a woman because the employer considered her inadequately feminine in her appearance or behavior was a form of sex discrimination, under what was called the sex stereotype theory, and during the 1990s the Court ruled that a victim of workplace same-sex harassment could sue under Title VII, overruling a lower court decision that a man could sue for harassment only if he was being harassed by a woman, not by other men.  In that decision for a unanimous court, Justice Antonin Scalia opined that Title VII was not restricted to the “evils” identified by Congress in 1964, but could extend to “reasonably comparable evils” to effectuate the legislative purpose of achieving a non-discriminatory workplace.

By the early years of this century, lower federal courts had begun to accept the argument that the sex stereotype theory provided a basis to overrule earlier decisions that transgender people were not protected from discrimination under Title VII.  There is an emerging consensus among the lower federal courts, bolstered by rulings of the Equal Employment Opportunity Commission (EEOC), that gender identity discrimination is clearly discrimination because of sex, and so the 11th Circuit Court of Appeals ruled several years ago in a case involving a transgender woman fired from a research position at the Georgia legislature.

However, the idea that some variant of the sex stereotype theory could also expand Title VII to protect lesbian, gay or bisexual employees took longer to emerge.  It was not until 2015 that the EEOC issued a decision in the Baldwin case concluding that sexual orientation discrimination is a form of sex discrimination, in part responding to the sex stereotype decisions in the lower federal courts.  And it was not until April 4 of this year that a federal appeals court, the Chicago-based 7th Circuit Court of Appeals, approved that theory in a strongly worded opinion by a decisive majority of the entire 11-judge circuit bench, just a few weeks after the 11th Circuit panel ruling in the Jameka Evans case.  Writing for the 7th Circuit in the Hively  case, Judge Diane Wood said, “It would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation.’”

The 11th Circuit panel’s 2-1 decision to reject Jameka Evans’ sexual orientation discrimination claim seemed a distinct setback in light of these developments.  However, consistent with the 11th Circuit’s prior gender identity discrimination ruling, one of the judges in the majority and the dissenting judge agreed that Evans’ Title VII claim could be revived using the sex stereotype theory based on how she dressed and behaved, and sent the case back to the lower court on that basis.  The dissenting judge would have gone further and allowed Evans’ sexual orientation discrimination claim to proceed under Title VII.  The other judge in the majority strained to distinguish this case from the circuit’s prior sex stereotype ruling, and would have dismissed the case outright.

The 7th Circuit’s decision in April opened up a split among the circuit courts in light of a string of rulings by several different circuit courts over the past several decades rejecting sexual orientation discrimination claims by gay litigants, although several of those circuits have since embraced the sex stereotype theory to allow gay litigants to bring sex discrimination claims under Title VII if they could plausibly allege that they suffered discrimination because of gender nonconforming dress or conduct.  Other courts took the position that as long as the plaintiff’s sexual orientation appeared to be the main reason why they suffered discrimination, they could not bring a Title VII claim.

In recent years, several federal trial judges have approved an alternative argument: that same-sex attraction is itself a departure from widely-held stereotypes of what it means to be a man or a woman, and thus that discrimination motivated by the victim’s same-sex attraction is a form of sex discrimination under Title VII.  Within the New York-based 2nd Circuit, several trial judges have recently embraced this view, but three-judge panels of the Court of Appeals consistently rejected it.  Some progress was made last spring, however, when a three-judge panel in Christiansen v. Omnicom Group overruled a trial judge to find that a plaintiff whose sexual orientation was clearly a motivation for his discharge could bring a sex stereotype Title VII claim when he could plausibly allege behavioral nonconformity apart from his same-sex attraction.

More recently, however, the 2nd Circuit agreed to grant en banc reconsideration to the underlying question and heard oral argument in September in Zarda v. Altitude Express on whether sexual orientation discrimination, as such, is outlawed by Title VII.  That case involved a gay male plaintiff whose attempt to rely alternatively on a sex stereotype claim had been rejected by the trial judge in line with 2nd Circuit precedent.  Plaintiff Donald Zarda died while the case was pending, but it is being carried on by his Estate.  Observers at the oral argument thought that a majority of the judges of the full circuit bench were likely to follow the lead of the 7th Circuit and expand the coverage of Title VII in the 2nd Circuit (which covers Connecticut, Vermont and New York).  With argument having been held more than two months ago, a decision could be imminent.

Much of the media comment about the Zarda case, as well as the questioning by the judges, focused on the spectacle of the federal government opposing itself in court.  The EEOC filed an amicus brief in support of the Zarda Estate, and sent an attorney to argue in favor of Title VII coverage.  The Justice Department filed a brief in support of the employer, and sent an attorney to argue that the three-judge panel had correctly rejected the plaintiff’s Title VII claim.  The politics of the situation was obvious: The Trump appointees now running the Justice Department had changed the Department’s position (over the reported protest of career professionals in the Department), while the holdover majority at the EEOC was standing firm by the decision that agency made in 2015.  As Trump’s appointment of new commissioners changes the agency’s political complexion, this internal split is likely to be resolved against Title VII protection for LGBT people.

This is clearly a hot controversy on a question with national import, so why did the Supreme Court refuse to hear the case?  The Court does not customarily announce its reasons for denying review, and did not do so this time.  None of the justices dissented from the denial of review, either.

A refusal to review a case is not a decision on the merits by the Court, and does not mean that the Court approves the 11th Circuit Court of Appeals’ decision.  It is merely a determination by the Court, which exercises tight control over its docket, not to review the case.  Hypothesizing a rationale, one might note that the plaintiff here has not suffered a final dismissal of her case, having been allowed by the 11th Circuit to file an amended complaint focusing on sex stereotype instead of sexual orientation, so she can still have her day in court and there is no pressing need for the Court to resolve the circuit split in her case.  One might also note that Georgia Regional Hospital did not even appear before the 11th Circuit to argue its side of the case, and did not file papers opposing Lambda Legal’s petition until requested to do so by the Court.

On October 11, the Supreme Court Clerk’s office distributed the Lambda petition and some amicus briefs supporting it to the justices in anticipation of their conference to be held October 27. The lack of a response by Georgia Regional Hospital evidently sparked concern from some of the justices, who directed the Clerk to ask the Hospital to file a response, which was filed by Georgia’s Attorney General on November 9, and the case was then put on the agenda for the Court’s December 8 conference, at which the decision was made to deny review.  The responsive papers argued, among other things, that the Hospital had not been properly served with the Complaint that initiated the lawsuit. Those kinds of procedural issues sometimes deter the Court from taking up a case.

For whatever reason, the Court has put off deciding this issue, most likely for the remainder of the current Term. The last argument day on the Court’s calendar is April 25, and the last day for announcing decisions is June 25.  Even if the 2nd Circuit promptly issues a decision in the Zarda case, the losing party would have a few months to file a petition for Supreme Court review, followed by a month for the winner filing papers responding to the Petition.  Even if the Court then grants a petition for review, thus starting the clock running for filing merits briefs and amicus briefs, it is highly likely that once all these papers are submitted, it will be too late in the Term for the case to be argued, so it would end up on the argument calendar for Fall 2018.

Which raises the further question of who would be on the Court when this issue is finally before it? Rumors of retirements are rife, and they center on the oldest justices, pro-LGBT Ruth Bader Ginsburg and conservative but generally pro-gay Anthony Kennedy.  If President Trump gets to nominate successors to either of them, the Court’s receptivity to gay rights arguments is likely to be adversely affected.

11th Circuit Rejects Tax Deductibility of Surrogacy Expenses

Posted on: October 3rd, 2017 by Art Leonard No Comments

A gay male couple that wants to have a child who is genetically related to one of the men needs to retain the services of at least one and possibly two women, depending whether they are going to use ordinary surrogacy or gestational surrogacy to have the child. Should those expenses be deductible if they exceed the threshold set by the Internal Revenue Code for deductible medical expenses?  On September 25, the 11th Circuit Court of Appeals, affirming a ruling by the Internal Revenue Service, answered in the negative. Morrissey v. United States, 2017 U.S. App. LEXIS 18479, 2017 WL 4229063.

Joseph F. Morrissey, the plaintiff, is a gay man who has been in a monogamous relationship with his same-sex partner since 2000. (They married after the events described in this case took place, when same-sex marriage became legal in Florida.)  Morrissey characterizes himself as “effectively infertile” (since he is gay) because “it is physiologically impossible for two men to conceive a child through sexual relations.”  The way out of this “effective infertility” is to use a surrogate, a woman who is willing to bear a child and give up her parental rights after the child is born.

In 2010, Morrissey and his partner decided to try to have children through in vitro fertilization (IVF) using a gestational surrogate, with Morrissey as the sperm donor. Morrissey’s sperm would be collected and then used to fertilize a donated egg in a petri dish; the resulting embryo would be implanted in a different woman than the egg donor.  The gestational surrogate would then bear the child, both women having agreed to the termination of their parental rights as genetic mother and birth mother.  Between 2010 and 2014 Morrissey went through several IVF procedures involving three egg donors, three surrogates, and two fertility specialists.  He spent more than $100,000 altogether.  (The opinion does not mention whether he actually ended up having kids.)  During tax year 2011, he spent nearly $57,000 that was not covered by insurance on these IVF-surrogacy procedures.  $1,500 of his expenditures that year went toward procedures performed directly on Morrissey – blood tests and sperm collection.  The remainder of his expenditures that year went to identifying and retaining the women who would be egg donors and surrogates, for compensation of their services, reimbursement of their travel and other expenses, and providing medical care to the women.

Morrissey did not claim a deduction for these medical expenses when he filed his 2011 tax return, paying the full $22,449 that he owed in taxes without medical deductions. After paying his taxes, he filed an amended 2011 tax return, claiming a medical expense deduction of $36,538, the amount by which his claimed expenses exceeded the threshold specified in the Code, and seeking a $9,539 refund.  At the time, the threshold was 7.5 of adjusted gross income.  (Today it is 10, having been increased effective with the 2013 tax year.)  The $1500 he spent for medical services to himself could not be deducted on its own, because it would not exceed the threshold.  Only by being able to claim the other expenses associated with the IVF-surrogacy procedures would he be able to have any medical deduction.

The IRS disallowed his deduction and denied the refund, taking the position that Sec. 213, which governs the “medical care” deductions, “states that Medical Care must be for Medical Services provided to the taxpayer, his spouse, or dependent.” As far as IRS was concerned, the expenses Morrissey incurred were not, with the exception of the $1500, for medical services provided to him.

Morrissey then sued in the federal district court, claiming first that Section 213 authorizes his claimed deduction, and second that the IRS’s disallowance of his claim violated his equal protection rights under the 5th Amendment. The district court granted summary judgment for the IRS.

Writing for the panel, in one of his first opinions since being appointed to the court by Donald Trump, Circuit Judge Kevin Newsom rejected Morrissey’s attempt to bring his claim within the language of Section 213. Morrissey argued that the IVF-related expenses were “medical care” because they constituted amounts that were paid “for the purpose of affecting any . . . function of the body.”  The problem, as Newsom pointed out, was that the “body” referred to by the statute is the taxpayer’s body, and the medical care was affecting the functions of the egg donor’s and the surrogate’s bodies.  Wrote Newsom, “Mr. Morrissey contends that all of the IVF-related expenses that he incurred – including the costs attributable to the identification, retention, compensation, and care of the women who served as the egg donor and the surrogate – were made for the purpose of affecting his body’s reproductive function.  In particular, Mr. Morrissey asserts that because he and his male partner are physiologically incapable of reproducing together, IVF was his only means of fathering his own biological children.  Accordingly, Mr. Morrissey claims, it was medically necessary to involve third parties – a female egg donor and a female surrogate – in order to enable his own body to fulfill its reproductive function.”

But Judge Newsom found that the section’s “plain language” foreclosed this argument, getting into a word by word analysis with the dictionary as his authority. As he interpreted the section, it would apply only if “the expenses at issue were paid for the purpose of materially affecting or altering some function of Mr. Morrissey’s body,” and clearly they were not.  Although they were intended to solve the reproductive problem, it was not by rendering care that would affect Morrissey’s body or how his body would function.  Newsom (or more likely his clerk) had fun writing a primer on the physiology of human reproduction, in order to reach the obvious conclusion that a man’s role in the reproductive function is to ejaculate sperm, and none of the “medical care” he was trying to claim had to do with any problem concerning that.

Turning to the equal protection claim, Newsom described Morrissey’s two equal protection arguments. “First, he asserts that we should employ strict scrutiny because the IRS’s disallowance of his claimed deduction under IRC Sec. 213 infringes his fundamental right to reproduce.  Second, he argues that some form of heightened scrutiny should apply because in disallowing the deduction the IRS discriminated against him on the basis of his sexual orientation.”

While conceding that the Supreme Court has described reproduction as a fundamental right in a broad sense, the court concluded that the issue here is “whether a man has a fundamental right to procreate via an IVF process that necessarily entails the participation of an unrelated third-party egg donor and a gestational surrogate.” As to that, the court concluded, “History and tradition provide no firm footing – let alone ‘deep rooting’ – for the right that underlies Mr. Morrissey’s claim. To the contrary, IVF, egg donation, and gestational surrogacy are decidedly modern phenomena.  Indeed, not all that long ago, IVF was still (literally) the stuff of science fiction.”  There follows a citation to and quotation from Aldous Huxley’s novel, Brave New World (1932).

Newsom then described the controversial history of alternative reproductive medicine, whose morality has been questioned by some major religions and whose legality has been put into play by a variety of state laws, ranging from regulation to criminalization of surrogacy agreements and laws against their enforcement. “Were we to confer ‘fundamental’ status on Mr. Morrissey’s asserted right to IVF-and-surrogacy-assisted reproduction,” wrote Newsom, “we would ‘to a great extent, place the matter outside the arena of public debate and legislative action.’ Particularly in view of the ethical issues implicated by IVF, egg donation, and gestational surrogacy,” he continued, “as well as the ongoing political dialogue about those issues – and mindful that ‘guideposts for responsible decision-making’ in the fundamental-rights area ‘are scarce and open-ended’ – we decline to take that step.”

The court rejected Morrissey’s invitation to opine as to whether sexual orientation is a “suspect classification” for equal protection purposes, because it found that the challenged statute – and its interpretation here – was neutral regarding sexual orientation. Newsom asserted that the statute “deals with heterosexual and homosexual taxpayers on equal terms.”  The court found that Morrissey could not show that the IRS treated him differently from a heterosexual taxpayer who sought to claim a medical deduction for the expenses of IVF-surrogacy procedures.  “The agency’s disallowance of Mr. Morrissey’s claimed deduction is consistent with longstanding IRS guidance and analogous Tax Court precedent,” he wrote, as “IRS has consistently refused deductions sought by heterosexual taxpayers for IVF-related expenses similar to Mr. Morrissey’s.  An IRS guidance published in 2002 advised that ‘medical expenses paid for a surrogate mother and her unborn child would not qualify for deduction under Sec. 213(a),’” and this was upheld in several Tax Court cases.  He pointed out that such deductions had even been disallowed where the surrogate was impregnated through sexual intercourse with the taxpayer!

The court refused to accept Morrissey’s analogy to the IRS’s allowance of deductions for fertility treatments, saying, “Even if Mr. Morrissey could show that he had been treated differently from similarly situated heterosexual taxpayers, he hasn’t shown that any difference was motivated by an intent to discriminate against him on the basis of his sexual orientation.” In essence, Morrissey’s equal protection claim was more of a disparate impact claim, not a disparate treatment claim, and the constitutional requirement of equal protection has been interpreted by the Supreme Court to apply only to intentional discrimination, not to the discriminatory effects of a tax regime that makes it more expensive for gay couples to have biological offspring than for those straight couples who do it the old-fashioned way.  Although Morrissey was able to come up with an internal IRS document in which an agent made a remark that might be construed as showing discriminatory intent, the court insisted that the official explanation provided by IRS for denying his claim carried no implication of any discriminatory purpose.  “Because there is no evidence that the IRS’s actual decision-makers engaged in any intentional discrimination,” wrote Newsom, “Mr. Morrissey’s equal protection claim fails.”

Morrissey is represented by Richard Donald Euliss of Carlton Fields Jorden Burt PA (Washington, DC) and David Paul Burke, Scott D. Feather, and Gary L. Sasso, of the same firm’s Tampa office.

 

Justice Department Tells 2nd Circuit That Gays Are Not Protected from Discrimination Under Federal Civil Rights Law

Posted on: July 27th, 2017 by Art Leonard No Comments

The U.S. Department of Justice filed a brief on July 26 with the New York-based U.S. Court of Appeals for the 2nd Circuit, weighing in on the question whether Title VII of the Civil Rights Act of 1964 bans discrimination because of sexual orientation.  Not surprisingly, the Trump Administration’s answer is “No.”

 

Title VII lists forbidden grounds for employment discrimination: race or color, religion, sex and national origin. After it went into effect in July 1965, both the Equal Employment Opportunity Commission (EEOC), the agency charged with enforcement of the statute, and the federal courts quickly took the position that people who encountered discrimination because they were gay or transgender could not pursue a claim under this law.  Both the administrative agency and the federal courts held fast to that position until relatively recently.

 

That consensus began to break down early in this century, first in response to discrimination claims by transgender people, as courts and then the EEOC (in 2012) accepted the argument that discriminating against somebody because they were transitioning or had transitioned was actually discrimination because of sex. The rationale they adopted derived from a 1989 decision by the Supreme Court, which recognized that discrimination against people for failing to comply with the employer’s stereotyped view about how people of a particular sex should behave, dress, or otherwise act, was actually discrimination because of their sex.  The 1989 case involved a woman who was denied a partnership in an accounting firm because some of the partners thought she was not sufficiently feminine to meet their image of a “lady partner,” and her immediate boss told her she should get her hair styled and start wearing makeup and jewelry if she wanted to be a partner.

 

By 2015, the EEOC had taken the analysis one step further to cover sexual orientation claims. It recognized that having a same-sex attraction violates gender stereotypes, similarly to the transgender cases, but also drew analogies to cases where courts found that discriminating against an employee for being in an interracial relationship was a form of race discrimination, called associational discrimination.  Further, the EEOC decided that it was really not plausible to distinguish between sexual orientation discrimination and sex discrimination, since both were concerned with treating people differently because of their sex.

 

Until this year, no federal appellate court had accepted these theories, but on April 4, the full bench of the Chicago-based U.S. Court of Appeals for the 7th Circuit became the first federal appeals court to rule that Title VII bans sexual orientation discrimination.  Reversing its prior precedents, the court accepted the EEOC’s analysis in a lawsuit by Kimberly Hively, a lesbian who had been denied a tenure-track position by an Indiana community college.  The college decided not to appeal, taking the position that it had not discriminated at all, so the case was sent back for trial to the district court.

 

Meanwhile, however, the same issue was being litigated in other parts of the country. In the Atlanta-based 11th Circuit, a sexual orientation discrimination claim by Jameka Evans against a Georgia hospital that had been dismissed by the district court was revived by the court of appeals, but on a narrower theory.  In common with several other circuits, the 11th Circuit will accept Title VII claims from gay plaintiffs who allege that they suffered discrimination because of their failure to conform to gender stereotypes.  In this case, while a three-judge panel ruled 2-1 to affirm the trial court’s rejection of the plaintiff’s sexual orientation discrimination claim, the panel sent the case back to the trial court to allow the plaintiff to pursue a sex stereotyping claim.  One member partially dissented, Judge William Pryor (who had been on Trump’s potential Supreme Court list), finding no basis for any Title VII claim by the plaintiff.  Another member of the court agreed to send the case back, but argued that Title VII should be interpreted to cover sexual orientation claims.  A third member found that the panel was bound by circuit precedent to reject the sexual orientation claim, but agreed that the plaintiff should have a chance to pursue a sex stereotype claim.  The 11th Circuit denied a petition to reconsider the Evans case “en banc” (by the full bench) a few weeks ago, and Lambda Legal announced that it will petition the Supreme Court to review the panel decision.  Lambda has until the first week of October to file its petition.

 

Meanwhile, however, within the 2nd Circuit, at least two federal district court judges have recently refused to dismiss sexual orientation claims under Title VII, finding that the circuit’s acceptance of the “associational theory” in a race discrimination case means that the court should accept sexual orientation discrimination claims.  Several other district judges have dismissed such claims, concluding that until the court of appeals explicitly overrules its earlier precedents, the trial judges are bound to follow them.  A few months ago, confronted by petitions for en banc review in three different cases, the Circuit announced that it would reconsider the panel decision in Estate of Donald Zarda v. Altitude Express.

 

In Zarda, the district court had dismissed a Title VII claim but allowed the case to go to trial under New York State’s Human Rights Law, which expressly outlaws sexual orientation discrimination. The jury ruled in favor of the employer, although it is questionable whether the jury was properly instructed about how to weigh the evidence.  The plaintiffs appealed the dismissal of the Title VII claim. A three-judge panel affirmed the district court’s dismissal, while noting that recent developments in the law could justify reconsideration by the full 2nd Circuit bench.  In a case decided by a different three-judge panel at around the same time, Christiansen v. Omnicom, the panel also upheld dismissal of a sexual orientation claim, but sent the case back to the district court for reconsideration as a sex stereotyping claim, and two of the judges joined a concurring opinion suggesting that it was time for the 2nd Circuit to reconsider the sexual orientation issue en banc in an “appropriate case.”  However, after granting en banc review in Zarda, the circuit court denied a petition for en banc review in Christiansen!

 

Briefs were due from the plaintiff’s side in the Zarda appeal during the last week in June. The EEOC, consistent with its interpretation of the statute, filed an amicus (friend of the court) brief in support of the Zarda. (Zarda, a sky-diving instructor, died in a diving accident after starting his discrimination case, so the lawsuit is now being pursued by his executors, seeking money damages for the estate.)    Briefs were due by July 26 from the employer and any amicus parties supporting its position.  After some suspense about what the Trump Administration might do, the Justice Department filed its brief right at the deadline.

 

It is somewhat unusual for the government to file an amicus brief in opposition to a position taken by a federal agency, and it is also unusual for the government to file a brief in a case between private parties – a former employee versus a business – but the federal government has a significant interest in this case, and the politics of EEOC v. DOJ are unusual because of the timing. Until this month, the majority of the EEOC Commissioners have been appointees of President Obama.  They decided the key sexual orientation case two years ago by a vote of 3-2, with the Republican commissioners dissenting.  Upon confirmation of Trump’s appointees to fill some vacancies, control of the EEOC will switch over to Republican hands.  But for now, the EEOC continues to pursue sexual orientation discrimination cases under Title VII, and has even filed some new lawsuits this year despite the change of administrations in January.  On the other hand, the Justice Department reflects the views of the new administration, which are consistent with those expressed by 7th Circuit Judge Diane Sykes (also on Trump’s potential Supreme Court list), who wrote a dissenting opinion in the Hively case.

 

Why does the Trump Administration have a strong interest in a case between private parties? Because Title VII has provisions banning sex discrimination in the federal workforce, and because the president’s political base and the Republicans in Congress stand in opposition to outlawing sexual orientation discrimination.  This is clear from the failure of Republican legislators to co-sponsor the Equality Act, a bill that would amend Title VII to add sexual orientation and gender identity or expression to the statutory list of forbidden grounds of employment discrimination.  A few Republicans were co-sponsors of the Employment Non-Discrimination Act, a narrower bill that was pending in Congress from the mid-1990s through Obama’s first term until it was supplanted by the Equality Act, but not enough to call that bipartisan legislation.  The Employment Non-Discrimination Act came up for floor votes once in each house of Congress but in different sessions of Congress.  On both of those occasions it received few votes from Republican legislators, and their party’s platform never endorsed it.

 

The Justice Department’s brief, noting the EEOC’s position in the case, states that “the EEOC is not speaking for the United States and its position about the scope of Title VII is entitled to no deference beyond its power to persuade.” And, almost needless to say, the Justice Department under the outspokenly anti-gay Jeff Sessions is not persuaded by any of the EEOC’s arguments.  The brief argues that Congress did not intend to ban sexual orientation discrimination in 1964 when it enacted Title VII and that should be the end of the matter.  The failure of Congress to approve any amendment to add sexual orientation to the law is cited as evidence of continuing legislative intent, and the brief argues that only Congress can change the law.  It argues at length that the theories embraced by the EEOC and the 7th Circuit are mistaken interpretations of the Supreme Court’s rulings on sex stereotyping and associational discrimination, and that there is a distinct difference between sex discrimination and sexual orientation discrimination, despite statements by many federal judges that they have difficulty drawing the line between the two.

 

The 2nd Circuit will not be oblivious to the political nature of the government’s opposition.  The concurring opinion in the Christiansen case, written by 2nd Circuit Chief Judge Robert Katzmann, virtually endorsed the EEOC’s interpretation of the statute while calling for the circuit to reconsider its earlier precedents.  And a majority of the judges who will sit on the en banc panel were appointed by Bill Clinton or Barack Obama and have generally taken a more liberal approach to interpreting Title VII.  The circuit’s earlier precedents that are being reconsidered were issued by three-judge panels at a time when the arguments for allowing sexual orientation discrimination claims were not nearly as well developed as they have been in recent years, and the circuit has accepted the associational discrimination theory in a race discrimination case after those earlier cases were decided.  It is likely to see that theory’s applicability here, as the district judges have commented.  However, if the Supreme Court decides to grant Lambda Legal’s petition to review the 11th Circuit case, it is possible that the 2nd Circuit will hold up on deciding the Zarda appeal until the Supreme Court has spoken.  Interesting timing issues will arise this fall.  The 2nd Circuit argument is scheduled for late in September, before the Supreme Court will begin its fall term and start announcing whether it will grant petitions for review filed over the summer.

 

The brief filed by Altitude Express in opposition to the appeal has raised significant jurisdictional arguments that would give the 2nd Circuit a way out of deciding this appeal on the merits, if the judges are so inclined.  That brief argues that when he filed his initial discrimination charge with the EEOC, Donald Zarda expressly disclaimed making a sexual orientation discrimination claim under Title VII, relying instead on the allegation that he suffered discrimination for failing to comply with sex stereotypes.  That was the theory he initially presented in his federal court complaint under Title VII as well, and it was dismissed by the trial judge, who opined that Zarda’s factual allegations were not sufficient for a sex stereotyping claim.  Zarda only pressed a sexual orientation claim under the New York State Human Rights Law.  Thus, Altitude Express argues, he cannot now argue for a sexual orientation discrimination claim under Title VII, because the statute requires that any claim first be presented to the administrative agency, and further that any ruling by the court of appeals on that question would be, in effect, an advisory opinion, as the jury has already ruled against his sexual orientation discrimination claim.  There’s no telling how the 2nd Circuit will respond to these arguments, but one suspects that if they had serious doubts about jurisdiction, they would not have granted the en banc petition.

 

In the meantime, however, it is clear that if the Supreme Court grants review in the 11th Circuit Evans case, the federal government, represented by the Solicitor General, will come into the case against the plaintiff, and by then the EEOC will be in Republican control and will probably not be filing a separate brief.  Once again, the Trump Administration is actively disavowing the LGBT-supportive stance that the candidate claimed during the election last year.  The brief was filed just as Trump was tweeting his decision to bar transgender people from military service, which seemed no coincidence.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Supreme Court Will Consider Religious and Free Speech Exemptions to Anti-Discrimination Law in Colorado Wedding Cake Case

Posted on: June 26th, 2017 by Art Leonard No Comments

On June 26 the United States Supreme Court granted a petition filed by Alliance Defending Freedom (ADF), the anti-gay “religious” law firm, on behalf of Jack Phillips and his business, Masterpiece Cakeshop, to determine whether the Colorado Court of Appeals correctly denied Phillips’ claim that he is privileged under the 1st Amendment to refuse an order to bake a wedding cake for a same-sex couple.  Masterpiece Cakeshop, LTD. v. Colorado Civil Rights Commission, No. 16-111 (cert. granted June 26, 2017).

The petition was filed last July 22, and had been listed for discussion during the Court’s conferences more than a dozen times. The addition of Donald Trump’s nominee, Neil Gorsuch, to fill a vacancy on the Court was likely the catalyst for a decision to grant review, although it the ultimate disposition of the case could heavily depend on the views of Justice Anthony Kennedy, the “swing justice” on the Court in cases involving LGBT issues.  However, in an interesting twist, one of the main precedents that stands in the way of a victory for Phillips and Masterpiece Cakeshop is an opinion written in 1990 by Justice Antonin Scalia, whose death led to Gorsuch’s appointment.

The petition asks the Court, in effect, to reverse or narrow its long-standing precedent, Employment Division v. Smith, in which Justice Antonin Scalia wrote that individuals do not have a constitutional right based on their religious beliefs to refuse to comply with “neutral” state laws of general application. Neutral state laws are those that do not directly concern religious beliefs or practices, but whose application may incidentally affect them.  In response to this decision, both Congress and many state governments have passed statutes allowing persons to claim religious exemptions from complying with statutes under certain circumstances.

The question which the Court will consider, as phrased by ADF in its petition, is: “Whether applying Colorado’s public accommodations law to compel Phillips to create expression that violates his sincerely held religious beliefs about marriage violates the Free Speech or Free Exercise Clauses of the First Amendment?”

The Court has addressed the free speech aspects of this issue in the past.  In Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston (1995), the Court ruled that a state’s public accommodation law would have to give way to the 1st Amendment expressive association rights of the organizers of Boston’s St. Patrick’s Day Parade, who refused to allow an LGBT group to march under its own banner in the parade.  The Court ruled unanimously, in an opinion by Justice David Souter, that a parade is a quintessential expressive activity, and the organizers of the parade have a right to exclude groups whose presence would convey a message that the parade organizers do not wish to convey.

By a bare 5-4 majority, the Court extended that ruling in Boy Scouts of America v. Dale (2000), in which Chief Justice William Rehnquist wrote for the Court, holding that the Boy Scouts of America, like the Boston parade organizers, is an expressive association and could refuse to allow an openly gay man to serve as an assistant scoutmaster because this would communicate to its members and the public a view as to homosexuality that the BSA did not want to communicate.  The ruling sparked two dissenting opinions, sharply contesting the majority’s weighing of rights in allowing the Boy Scouts to discriminate and challenging the view that BSA could be characterized as an “expressive association.”

Interestingly, the winning parties in both of these cases have over time come to see the wisdom of allowing at least some LGBT people to participate in their activities.  The Boston parade organizers have allowed some LGBT groups to participate in their parade in recent years, and BSA voted to allow its local troops to permit participation by LGBT people as members and adult leaders, although troops sponsored by religious organizations have continued to exclude LGBT people in some places.

The Court has yet to return to the religious objection aspect of this case.  A few years ago it refused to review a decision by the New Mexico Supreme Court holding that a wedding photographer did not have a 1st Amendment right to refuse to provide her services to a lesbian couple seeking photographic documentation of their commitment ceremony.  Since then, courts in several other states have rejected religious exemption claims by various businesses that provide wedding-related services, including a recent New York ruling refusing a religious exemption to a farm that had hosted and catered weddings.  The more recent Hobby Lobby case, in which the Supreme Court held that a closely-held corporation could refuse on religious grounds to cover certain contraceptive methods under its health care plan, was litigated in terms of a statutory exemption provided by the federal Religious Freedom Restoration Act, and thus was not grounded on a constitutional claim.

A recent appellate ruling by a Kentucky court, however, upheld the right of a company that makes custom t-shirts to refuse an order from a gay organization for shirts to publicize the organization’s Gay Pride festival.  The 2-1 ruling was premised on the court’s conclusion that the denial of services was not based on the sexual orientation of anybody, but the concurring judge also cited the state’s Religious Freedom Restoration Act, while the dissenter found a clear violation of the a municipal anti-discrimination law and no right to a religious exemption.

In the case granted review by the Supreme Court, Charlie Craig and David Mullins were planning to go out-of-state to marry, because in 2012 Colorado did not yet allow same-sex marriages.  However, they planned to follow up with a celebration near their home in order to more easily involve their family and friends, and went to Masterpiece Cakeshop to order a cake for the occasion.  The owner, Jack Phillips, declined their order, citing his religious objection to same-sex marriage.  When Craig and Mullins publicized this refusal, they were offered a free wedding cake by another bakery which they accepted, but they also decided to file a charge of sexual orientation discrimination with the Colorado Civil Rights Division.  The Division ruled in their favor, approving an administrative law judge’s decision that rejected Phillips’s 1st Amendment defenses of free exercise of religion and freedom of speech and found that Phillips had violated the state’s statutory ban on sexual orientation discrimination by businesses.

ADF appealed the administrative ruling to the Colorado Court of Appeals, which rejected both of Phillips’ constitutional arguments.  The court held that baking and decorating a wedding cake is not speech or artistic expression, as Phillips had argued, and that the Commission’s order “merely requires that [Phillips] not discriminate against potential customers in violation of [the Colorado Anti-Discrimination Act] and that such conduct, even if compelled by the government, is not sufficiently expressive to warrant First Amendment protections.”  The court deemed the Act to be a “neutral law of generally applicability,” and thus within the scope of the Supreme Court’s Employment Division v. Smith precedent.  Colorado does not have a Religious Freedom Restoration Act that could arguably create a statutory exemption to the anti-discrimination statute.

Because the Supreme Court granted review on both the free speech and religious exercise claims, there might result a split decision by the Court.  If it wants to adhere to a broad view of Employment Division v. Smith, it can easily follow the route taken by various state courts that have refused to allow businesses to claim a constitutional religious exemption from complying with anti-discrimination laws.  Or, it could use this case to back away from the Employment Division holding or narrow it in some way.

The Court is unlikely to rule for Phillips on the free speech argument if it sticks with its precedents, since the recognized constitutional exception is for organizations or activities that have a primary or significant expressive purpose. Both Hurley and Dale involved non-profit organizations, not businesses, that were engaged in activities that the Court found (by only a narrow margin in the case of the Boy Scouts) to have strong expressive association claims.  It is unlikely that a business whose primary activity is selling cakes could make a similar claim.  But the Supreme Court can be full of surprises, and there have been significant changes in its membership since these cases were decided.  The Court might bow to the argument by ADF that people of strong religious convictions who wish to incorporate those convictions into their businesses have a right not to be compelled by the government to undertake activities that would express a view contrary to their religious beliefs.  This would potentially tear a big hole in the protection against discrimination provided by the public accommodations laws most of the states, and not just those that ban discrimination because of sexual orientation or gender identity.

The Colorado Court of Appeals’ decision will be defended before the Supreme Court by the state’s attorneys. Lambda Legal and One Colorado, with cooperating attorneys John McHugh and Anthony Giacomini of Denver-based Reilly Pozner LLP, filed an amicus brief in response to the petition.  Given the wide-ranging interest in the issues underlying this case, it is likely that the Court will receive a mountain of amicus briefs.  Oral argument will be held sometime next winter.

 

West Virginia Supreme Court Sharply Split on State Hate Crimes Law Interpretation

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

A sharply-divided West Virginia Supreme Court of Appeals voted 3-2 on May 9 to reject the application of the state’s Hate Crimes Law to the criminal prosecution of Steward Butler, who reacted to two gay men kissing each other on a sidewalk in Huntington, West Virginia, in the early hours of April 5, 2015, by exiting his car and slugging both men in the face. State v. Butler, 2017 WL 1905948, 2017 W. Va. LEXIS 333 (May 9, 2017).

W.Va. Code Section 61-2-9(c), which was enacted in 1987, makes it a felony to willfully injure somebody because of their “race, color, religion, ancestry, national origin, political affiliation or sex.” According to the opinion for the majority of the court by Chief Justice Allen H. Loughry, II, since 1987 members of the legislature have introduced 26 bills to amend the law to add “sexual orientation” to the list, but none has succeeded.

Butler was positively identified as the perpetrator because one of the victims managed to record part of the assault on his cellphone. “That video recording,” wrote the court, “as well as the statements taken from the defendant’s companions, were used to identify the defendant as the alleged perpetrator.”  The Cabell County prosecutor presented the case to a grand jury, which charged Butler with two counts of battery and two violations of the Hate Crimes Law.  Butler moved to dismiss the Hate Crimes counts, arguing that the statute did not apply to assaults motivated by the sexual orientation of the victim.

Circuit Judge Paul T. Farrell granted Butler’s motion, dismissing the hate crime counts. He found that “sex” and “sexual orientation” are “two distinct categories of potential discrimination” and that the legislature’s decision not to add “sexual orientation” to the statute, when many other states had done so, clearly signified its intention, so the court “cannot expand the word ‘sex’ to include ‘sexual orientation.’”

The local prosecutor appealed this ruling. Perhaps not surprisingly, West Virginia Attorney General Patrick Morrisey’s office filed a brief supporting the dismissal, while Lambda Legal, which has been actively litigating the issue whether “sex” includes “sexual orientation” in discrimination statutes, filed a brief supporting the local prosecutor.

A bare majority of the Supreme Court agreed with Judge Farrell that the hate crime counts must be dismissed. Chief Justice Loughry rejected any contention that the word “sex” as used in the statute was “ambiguous.”  As such, he wrote, it was not subject to “interpretation” but must be applied according to its “plain meaning.”

“Affording the undefined term ‘sex’ its common and ordinary meaning,” he wrote, “we find the word to be clear and unambiguous and to have a very different meaning and import than the term ‘sexual orientation.’” To support this proposition, he cited definitions from four dictionaries, noted that all but a five states have passed hate crimes laws but that no court has ever before interpreted those that do not specifically mention “sexual orientation” to apply to crimes committed because a victim was lesbian or gay.  He also repeated several times that the failure of the legislature to pass any of the 26 bills proposed to add “sexual orientation” to the statute evidenced legislative intent not to include it.  Furthermore, he wrote, in a criminal case the court should use the “rule of lenity” to ensure that people have clear notice of what conduct is condemned by the statute.  He also insisted that the court’s ruling did not imply approval of Butler’s conduct, and pointed out that Butler is still charged with two counts of battery.

“It is imperative to remember that it is not for this Court arbitrarily to read into a statute that which it does not say,” wrote Loughry. “Just as courts are not to eliminate through judicial interpretation words that were purposely included, we are obligated not to add to statutes something the legislature purposely omitted.”

Justice Margaret L. Davis, joined by Justice Robin Jean Workman, dissented in an opinion that brought together the recent opinions accepting the proposition that discriminating because of a person’s sexual orientation necessarily involves sex discrimination. As far as the dissenters are concerned, the term “sex” in the statute is not ambiguous but the prohibition of willfully injuring somebody because of their sex clearly includes the facts of this case.

Justice Davis built her argument by running through the developing case law, starting with the U.S. Supreme Court’s 1989 Price Waterhouse decision and ending with 2nd Circuit Chief Justice Katzmann’s recent concurring opinion in Christiansen v. Omnicom Corporation.  This summary culminated with the following bold assertion:  “If a man stands on a corner kissing a man and is beaten because he is kissing a man, has he been assaulted because of his sex?  Yes, but not simply because he possesses male anatomical parts; rather, the crime occurred because he was perceived to be acting outside the social expectations of how a man should behave with a man.  But for his sex, he would not have been attacked.”

“The indictment in this case properly alleged the attack occurred because of the victims’ sex,” she continued. “Certain individuals are targeted for violence because they are perceived to violate socially-established protocols for gender and sex roles.  The perpetrators in such instances have drawn conclusions that the victim has contravened certain unspoken rules, and the bias-motivated crime thus ensues.”

Quoting from the 7th Circuit’s recent decision in Hively v. Ivy Tech Community College, she wrote, “While the majority might find the crime was actually committed ‘because of sexual orientation,’ it is a ‘common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex.’”

She accused the majority of concluding its analysis “prematurely. Simply finding the absence of those two magic words fatal to the State’s contention is the most effortless answer this Court could conjure. But while an answer without more in-depth analysis may be the path of least resistance, it also gives the shortest shrift to critical thinking. . .  The pertinent question is not whether the statute contains the words ‘sexual orientation.’  Rather, it is whether the crime was committed because of the victims’ sex.  The phrase ‘because of sex’ encompasses the actions taken against the victims in this case.”

Justice Davis rejected any argument that the developments in discrimination law could not be carried over to the criminal law context. She pointed out that developments in discrimination law and criminal law have been intertwined over the years.  “Anti-hate legislation has typically taken the form of either penalty enhancement or independent legislation,” she wrote.  “Both types generally define the unlawful acts as acts motivated ‘because of’ (‘based on,’ ‘on the basis of,’ ‘by reason of,’ etc.) . . . [certain protected statuses]. This form is similar to Title VII, the federal employment discrimination statute, a point Chief Justice Rehnquist invoked in upholding the Wisconsin [criminal] statute” in Wisconsin v. Mitchell in 1993.

She also pointed out that allowing the hate crime counts to proceed did not put the Supreme Court in the position of “both judge and jury,” as it would still be up to the prosecutor to prove the assertions of discriminatory intent required by the statute. “Allowing Counts I and III to stand would provide the prosecution ample time to prove the assertions, the jury would be properly instructed on evidentiary requirements and burdens of proof, and the State would be required to prove its allegations of statutory violation beyond a reasonable doubt.  At this juncture, however, the evaluation must concentrate upon the sufficiency of the indictment for a hate crime, and it is my firm belief that the majority of this Court adopted an overly narrow focus, metaphorically missing the forest for the trees.”

Because this decision did not address any federal constitutional issues, it cannot be appealed by the prosecutor to the U.S. Supreme Court. Theoretically, one might argue that the majority’s decision violates the equal protection rights of gay victims, as the court has interpreted the statute to protect straight people from being attacked because of their sex but to deny the same protection to gay people, for no reason other than the legislature’s repeated rejection of amendments to extend such protection to gay people.  But as far as one can tell from reading the majority and dissenting opinions, nobody made that argument in the West Virginia courts, so it was not preserved for review.