New York Law School

Art Leonard Observations

Posts Tagged ‘sexual orientation’

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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Obama Government Contractor Executive Order

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

The White House has announced that President Barack Obama will sign an executive order on July 21, 2014, amending Executive Order 11246 to add “sexual orientation” and “gender identity” as prohibited grounds of discrimination by government contractors.  Announcements emanating from the White House suggest that the addition of these terms to the existing executive order are the only substantive changes that will be made.  The non-discrimination requirements will be included in new federal contracts made after the Labor Department has published final regulations implementing the amendments, probably beginning early in 2015.  Only new contracts entered after that date will be affected by the amendments.  [Update: The Order was signed this morning, July 21, and in addition to amending EO 11246, also amends EO 11478, which establishes non-discrimination policy within the Executive Branch, by addition “gender identity” to the categories already listed in the EO, which was originally adopted in 1969 by President Richard M. Nixon and was amended by Bill Clinton to add “sexual orientation” during the 1990s.]

EO 11246 was signed by President Lyndon B. Johnson on September 24, 1965, just a few months after Title VII of the Civil Rights Act of 1964 went into effect at the beginning of July 1965.  EO 11246 charged the Labor Department, through its Office of Federal Contract Compliance Programs (OFCCP), to oversee a program under which “government contracting agencies” would include in every contract (with some exceptions) a provision under which the contractor agreed not to discriminate in employment because of race, color, religion, sex or national origin, the categories of forbidden discrimination under Title VII, and agreed to abide by rules, regulations and relevant orders promulgated by the Labor Department to enforce this requirement.  Contractors are required generally to include similar provisions in any subcontracts they make as part of their performance of their federal contracts.  The penalty for “noncompliance” with these requirements could be cancellation, termination or suspension of the contract, and ineligibility for future contracts.  Complaints about noncompliance are handled administratively; the president does not have the power to enact laws that can be enforced by individual plaintiffs in the federal courts.  Generally EO 11246 charges the Labor Department to investigate complaints, to try to facilitate settlements, and to refer cases that involve violations of federal statutes to the appropriate enforcement agencies, such as the Equal Employment Opportunity Commission (EEOC).  Of course, the EEOC would only have jurisdiction to initiate enforcement action over complaints involving forms of discrimination prohibited by the statutes that agency is charged with enforcing, such as Title VII.

In 2002, President George W. Bush amended the executive order to provide that “this Order shall not apply to a Government contractor or subcontractor that is a religious corporation, association, educational institution, or society, with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.”  However, the Order states, “Such contractors or subcontractors are not exempted or excused from complying with the other requirements contained in this Order.”

According to advance word from the White House, President Obama’s amendments will not change this 2002 religious exemption and will not expand it in any way.  That is to say, religious corporations, associations, educational institutions or societies that contract with the federal government to provide services or goods will have to agree not to discriminate in their employment practices on the ground of sexual orientation or gender identity, which may present some of those organizations with particular challenges in light of the religious doctrines to which they adhere.  This raises immediate questions about whether religious organizations might plausibly argue that they cannot recognize a gay person as a member in good standing of their faith, regardless of that person’s professed beliefs?  Who gets to decide, for example, whether an individual professing to be Catholic but also being openly gay can be denied employment by a Catholic agency under contract to the federal government to provide social welfare services to the public, because the agency does not believe that an openly gay person can be deemed to be a practicing Catholic?

The First Amendment’s Free Exercise Clause generally protects religious organizations from interference by the government in their religious activities.  The Supreme Court has held that organizations of any type do not have a constitutional right to refuse to comply with laws of general application that do not single out religious practices for prohibition.  At the same time, the Court has held that free exercise of religion includes giving religious organizations free reign in their employment policies regarding “ministers,” persons to be employed to carry out the religious mission of the organization.  There is some controversy about who can be deemed a ministerial employee, litigation tending to focus on teachers and administrators in religious schools who teach secular subjects but are deemed by the schools to be “ministers” nonetheless and required to sign employment contracts that commit them to avoiding conduct that violates the tenets of the religion.

After the Supreme Court issued its key ruling about the requirement to comply with laws of general application, Congress passed the Religious Freedom Restoration Act (RFRA), providing that persons with religious objections to complying with laws of general application could claim a religious exemption unless the government could show that the government had a compelling interest supporting the general law and that the law provided the least restrictive alternative to achieving that interest.  In effect, Congress wanted to restore prior Supreme Court case law to the extent possible through a statute by imposing upon itself and the federal regulatory apparatus a limitation on its ability to compel people to comply with legal requirements that would violate their religious beliefs.  Many states passed similar laws placing the same restrictions on their own legislative and regulatory functions.

Last month, the Supreme Court ruled in Burwell v. Hobby Lobby Stores that the federal Dictionary Act’s definition of “person” to include corporations applies to RFRA, in a case where two closely-held family-owned business corporations claimed an exemption from complying with regulations under the Affordable Care Act requiring them to cover certain contraceptive methods in health insurance for their employees.  The Court went on to hold that, assuming the government had a compelling reason for including these contraceptive methods in its coverage requirements, requiring these employers to arrange for and pay for the coverage was not the least restrictive method of achieving the coverage goal, as the government could provide the coverage directly itself, or could provide some other mechanism that would make the coverage available without imposing on the objecting corporation.  Another example of a less restrictive alternative cited by the Court was a regulation that the administration had adopted for religiously-identified non-profit corporations, who could signify their objections to the specific items of coverage on a form provided by the government that they would submit to their health insurer, which would then be required to provide the coverage and seek reimbursement from the government.  (That regulation is under attack by some religious non-profit corporations, that claim that executing the form and sending it t0 their insurer substantially burdens their free exercise rights as well.)

The Court’s Hobby Lobby ruling raised immediate fears about whether corporations owned or operated by individuals with religious objections to homosexuality and/or same sex marriage might claim exemptions from employing or serving gay people or same-sex couples.  In her dissenting opinion, Justice Ruth Bader Ginsburg cited two cases on this point, in which state courts had rejected religious exemption claims from state public accommodations laws by a Minnesota health club, which did not want to have gay members, and a New Mexico wedding photographer, who had rejected a job preparing a wedding album for a lesbian couple.  The New Mexico case also involved that state’s version of RFRA, which the New Mexico Supreme Court held was not violated by application of the public accommodations law to a small business.  Similarly, there is litigation pending in Colorado involving a baker who rejected an order to provide a cake for the wedding celebration of a gay male couple.  These are not the kinds of businesses that would likely contract with the federal government, but the nature of the problem is clear.

Under the Executive Order, for example, could a closely-held family-owned company that produces certain technology that the federal government wants to buy, or that provides consulting services that the federal government wants to obtain, insist that for religious reasons it cannot employ gay people, or more particularly cannot continue to employee gay people who marry same-sex partners?  (There are many reports now of Catholic schools that have employed gay people as teachers and administrators for many years suddenly terminating their employment after learning that these people are marrying or have married a same-sex partner.)  Could a federal contractor refuse to include the same-sex spouse of an employee in its employee benefits plan on the same-basis that it includes different-sex spouses, because of religious objections to same-sex marriage?  EO 11246, as amended on July 21 by President Obama, would probably say no.  But if the protesting contractor sought protection from the non-discrimination requirement under RFRA, how would it fare?

These questions are difficult to answer prospectively.  In his opinion for the Court in Hobby Lobby, Justice Alito said that the court was ruling on the case before it, focusing on whether a closely-held family-owned business with religious objections to some forms of contraception was entitled to an exemption from ACA coverage requirements, at least to the extent that non-profit religiously-affiliated organizations had already been accorded by the Obama Administration in its regulations.  The Court, according to Alito, was not purporting to establish a wide-ranging exception to all legal obligations for all business corporations.  Alito commented that an employer could not rely on its religious beliefs to  seek exemption from the race discrimination requirements of Title VII.  But we don’t know whether that comment implicitly relied on the status of race as a suspect classification under the Equal Protection Clause, or the fact that Title VII recognizes a bona fide occupational qualification defense in cases involving religion, national origin or sex discrimination but not in cases involving race or color.  Did Alito mean to suggest more broadly that the RFRA exemption would not extend to any discrimination claims?  Justice Ginsburg was concerned about this in her dissent when she cited the two gay-specific examples from prior case law.  She might well have also noted the Supreme Court’s decision in Boy Scouts of America v. Dale, where the majority found that the Boy Scouts’ 1st Amendment freedom of expression and association rights took priority over whatever interest the state of New Jersey had in forbidding public accommodations such as the Boy Scouts from discriminating based on sexual orientation.  What would the Supreme Court majority think about the relative weight of an executive order banning sexual orientation or gender identity discrimination as opposed to statutory protection for free exercise of religion in RFRA?  Statutes would logically outweigh executive orders when there is a conflict between the two.  Can a presidential executive order that is not effectuating a policy adopted by Congress (as the original 11246 was effectuating the policy of Title VII, albeit going beyond it by applying the non-discrimination requirement to businesses exempt from coverage under Title VII due to their size or the nature of their business) signify a compelling government interest, or does Congress have the sole authority to establish compelling government interests, since the President’s Executive Orders as a matter of law and custom are aimed at the internal policies of the Executive Branch?

When religious opponents of the LGBT executive order suggest that it is going to lead to litigation, they are not making empty threats.  It is likely that some contractor who loses or fails to obtain a contract because they will not comply on religious grounds with the non-discrimination requirement will go to court seeking injunctive relief, and the question will be squarely presented whether RFRA applies to the situation and whether a compelling state interest can be based on an executive order that is not effectuating a policy decision by Congress?

Other questions arise about the pending version of the Employment Non-Discrimination Act, approved last year by the Senate, which provides a rather broad religious exemption beyond the narrow exemption now found in Title VII, the ministerial exemption, or the Bush amendments to EO 11246.  In the wake of Hobby Lobby, one has to ask whether a narrower exemption, similar to that in Title VII, would survive challenge under RFRA?  Questions for which there are at present no firm answers…

Federal District Judge Exhibits Ignorance in Evaluating Sexual Orientation Discrimination Claim

Posted on: November 23rd, 2013 by Art Leonard No Comments

I glance at many court opinions almost every day in my ongoing quest of materials for my newsletter, Lesbian/Gay Law Notes, so I have a fairly good idea of what passes for constitutional analysis in federal district court opinions, but every now and then something just jumps out at me as reflecting sheer ignorance.  One example of this is Fletcher v. Little, a November 20 decision by U.S. District Judge Sue L. Robinson (D. Delaware), who was appointed by George H.W. Bush in 1991. (2013 U.S. Dist. LEXIS 164831)  The context is pro se prisoner litigation.  Timothy Fletcher is a gay inmate in a Delaware prison who claims to have suffered harassment from fellow prisoners and unequal treatment from prison personnel, including failing to change his housing situation and punishing him for fighting with his cellmate when he claims he was fighting to defend himself against being raped.  Judge Fletcher’s ruling granting the sole remaining defendant summary judgment on Fletcher’s Section 1983 equal protection claim may be correct, given her summary of the factual record.  But her discussion of the equal protection analysis strikes me as woeful.

Here it is:  “To state a claim under the Equal Protection Clause, plaintiff must allege that he is a member of a protected class and he was treated differently from similarly situated inmates.  See City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (noting that the Equal Protection Clause ‘is essentially a direction that all persons similarly situated should be treated alike.’)  If the litigant does not claim membership in a protected class, he must allege arbitrary and intentional discrimination in order to state an equal protection claim.  See Village of Willowbrook v. Olech, 528 U.S. 562 (2000).  Plaintiff must state facts showing that: ‘(1) the defendant treated him differently from others similarly situated, (2) the defendant did so intentionally, and (3) there was no rational basis for the difference in treatment.’  Hill v. Borough of Kutztown, 455 F.3d 225, 239 (3rd Cir. 2006).  The Supreme Court has not recognized sexual orientation as a suspect class, and federal courts across the country have declined to identify homosexuals as a protected class.  See Price-Cornelison v. Brooks, 524 F.3d 1103, 1113 n.9 (10th Cir. 2008) (collecting cases).  Notably, plaintiff did not plead, and there is no evidence of record, that plaintiff was treated differently from similarly situated individuals and, even if he had, that there was no rational basis for any difference in treatment.  Finally, no matter how offensive and derogatory the language that defendant allegedly used with respect to plaintiff’s sexual orientation, that alone does not give rise to a constitutional claim.  See Aleem-X v. Westcott, 347 F. App’x 731 (3rd Cir. 2009) (unpublished) (verbal abuse of a prisoner, even of the lewd variety, is not actionable under 42 U.S.C. sec. 1983).  Plaintiff fails to plead a facially plausible equal protection claim.  Therefore, the court will dismiss the claim as frivolous pursuant to 28 U.S.C. sec. 1915(e)(2)(b)(ii) and Sec. 1915A(b)(1).”

In other words, Judge Robinson joins in the sloppy terminology and analysis in the equal protection context that speaks of “protected class,” a concept that is in fact alien to the equal protection theory, and says that “the Supreme Court has not recognized sexual orientation as a suspect class.”   This is weird.  How can a characteristic — sexual orientation — be a “class”?   What the equal protection theory requires is that the government have some rational justification if it is treating groups of people defined by a particular characteristic unequally with people who do not share that characteristic.  For example, “women” are not a “protected class,” and neither are “men.”  But the equal protection clause has been construed by the Supreme Court to require a substantial legitimate justification when the government systematically treats women differently from men, because the Court regards discrimination on the basis of sex — i.e., the characteristic of a person’s sex — as grounds for suspecting that the treatment is attributable to stereotype or bias.  We don’t have “suspect classes.”  We have “suspect classifications.”  The question is not whether “homosexuals” are a suspect class.  It is whether sexual orientation is a suspect classification.  That is, must the government have a legitimate justification for treating gay people differently from non-gay people in a particular situation?  When a gay prison inmate expresses fear of being subjected to sexual assault by a cellmate, and a prison official treats that fear differently than they would treat the fear of a non-gay prison inmate of being sexually assaulted by their cellmate, then there is discrimination because of sexual orientation, and the government needs to explain why it takes the one complaint seriously and the other not.

Judge Robinson cites a 2008 decision by the 10th Circuit as her authority for the proposition that “federal courts across the country have declined to identify homosexuals as a protected class.”  This reference is out-of-date and once again uses an improper term.  It can be read to suggest that as of 2008, federal courts around the country generally agree that the equal protection clause provides no protection for gay people against discriminatory adverse treatment by government officials.  This statement was certainly wrong as of 2008, and is most definitely wrong today.  In 1996, the Supreme Court ruled in Romer v. Evans that a state policy adversely affecting gay people violates the 14th amendment if there is not some legitimate, non-discriminatory justification for it.  This year, in U.S. v. Windsor, the court adopted the same approach in striking down Section 3 of the Defense of Marriage Act, finding that Congress’s decision to deny all federal recognition to same-sex marriages lawfully formed under state law was a deprivation of the “equal liberty” guaranteed by the 5th Amendment’s due process clause (which incorporates an equal protection requirement).  So, whether it is a state or the federal government that is acting, the constitution protects gay people from unjustifiable government discrimination.  For a more detailed analysis, one should consult the decisions by the 1st and 2nd Circuits in the DOMA cases that led up to the Supreme Court’s Windsor ruling.  The 1st Circuit took an approach of using a more searching form of equal protection review for sexual orientation discrimination claims, following the approach suggested by Supreme Court Justice Sandra Day O’Connor in her concurring opinion in Lawrence v. Texas (2003).  The 2nd Circuit, by contrast, in agreement with the Justice Department, found that “sexual orientation” discrimination calls for “heightened scrutiny,” the standard used to evaluate sex discrimination claims.  In both circuits, the courts recognized that there is a sound historical basis for suspecting that when the government treats gay people adversely, it is acting out of bias or moral disapproval of homosexuality rather than from some legitimate, non-discriminatory policy justification.  Judge Robinson’s application of the traditionally highly-deferential rational basis test is not consistent with these recent court of appeals decisions, much less the Supreme Court’s decision in U.S. v. Windsor.

It is clear that the 10th Circuit’s Price-Cornelison opinion from 2008 is not an accurate statement of the law any longer, if it ever was.  I would argue that it failed to reflect accurately what the Supreme Court had done in Romer v. Evans, and so was already more than a decade out of date when it was written.  Federal decisions subsequent to Romer in several circuits drive home the point, including the 9th Circuit’s rulings in the military context, and several decisions involving gay student harassment cases, including the 7th Circuit’s Nabozny decision issued shortly after Romer.

And federal district judges who have a “gay equal protection macro” in their office computers that inserts the standard paragraph based on outdated or incompetently stated case law should delete it.  I suspect this may be what is going on.  I doubt anybody doing competent research in current federal cases would produce the paragraph that appeared in Judge Robinson’s opinion, so I suspect it may be a recycling of outdated text, perhaps harvested from older circuit cases such as Price-Cornelison, thus perpetuating outdated statements about the law.  If Judge Robinson’s paragraphs quoted above were newly composed by a law clerk assigned to this case, I would suggest that the judge assign her clerk to read the recent equal protection rulings that I’ve mentioned to avoid producing an inaccurate work product in the future.

Supreme Court Refuses to Review Some Pending LGBT-Related Cases: Virginia Sodomy Law; University Discharge of Homophobic Administrator

Posted on: October 9th, 2013 by Art Leonard No Comments

 

On October 7, the first day of its October 2013 Term, the Supreme Court announced that it had denied petitions for certiorari in two pending LGBT-related cases, MacDonald v. Moose from the 4th Circuit and Dixon v. University of Toledo from the 6th Circuit.

In MacDonald v. Moose, 710 F.3d 154 (4th Cir. 2013), cert. denied sub nom Moose v. MacDonald, No. 12-1490, 2013 WL 3211338, the 4th Circuit held that Virginia’s sodomy law was facially unconstitutional in light of the Supreme Court’s 2003 decision in Lawrence v. Texas, which had invalidated the Texas Homosexual Conduct Act.  Unlike the Texas statute, which only applied to same-sex conduct, the Virginia sodomy law broadly applies to all acts of anal or oral sex, regardless of the genders or ages of the participants or the location of the activity.  In this case, the state prosecuted and convicted William MacDonald for soliciting a young woman to engage in oral sex with him in a parked car.

The solicitation statute applies only to criminal conduct, and thus incorporated by reference the sodomy law.  MacDonald argued in defense that his conduct was protected under Lawrence, but the Virginia courts took the position that because the woman was only 17, and thus a minor, his conduct was not protected because Lawrence did not protect sexual conduct involving minors.  After his conviction was upheld by the Virginia Supreme Court, he filed a federal habeas corpus action challenging the constitutionality of his conviction.  The district court denied his petition, but a 4th Circuit panel voted 2-1 to reverse, finding that the broad Virginia sodomy law was facially unconstitutional under Lawrence.  Attorney General (and now Republican candidate for governor) Ken Cuccinelli petitioned for certiorari, arguing that Lawrence was an “as applied” decision, and that the Virginia sodomy law should be construed to apply only to conduct not protected under Lawrence, including the conduct of Mr. MacDonald.  His petition was denied without comment or recorded dissent.  It will be interesting to see whether the Virginia legislature, which has stubbornly refused to amend or repeal the sodomy law to bring it into compliance with Lawrence, will take any action now that this case is over.

In Dixon v. University of Toledo, 702 F.3d 269 (6th Cir. 2012), petition for rehearing en banc denied (2013), cert. denied, No. 12-1402, 2013 WL 2357630, the 6th Circuit held that the University did not violate the 1st Amendment free speech rights of Crystal Dixon, an administrator who was discharged after she published a letter to the editor in a community newspaper articulating views about homosexuality that the University administration considered to be unacceptable for a person in her position.  The district court and court of appeals rejected her 1st Amendment claim, having found that she was speaking as an employee of the public university, and thus her speech was not protected by the 1st Amendment and the University could discharge her if it found her statements to be inconsistent with its policies concerning sexual orientation.  Her petition was denied without comment or recorded dissent.  The decisions below seem consistent with the Court’s precedents on public employee speech under the 1st Amendment.   When an employee is speaking in her capacity as an employee, the public employer has a right to determine the content of her speech as representing the public employer, and to discharge the employee for disseminating a message contrary to the employer’s policies.

ENDA, Title VII, and Transgender Rights

Posted on: September 19th, 2013 by Art Leonard No Comments

With a new push to get a floor vote in the Senate on the Employment Non-Discrimination Act (ENDA)  which was approved in committee over the summer, it is timely to consider the potential interaction of ENDA with Title VII of the Civil Rights Act of 1964, the main federal employment discrimination statute signed into law by President Lyndon B. Johnson that went into effect in July 1965.   Title VII prohibits employment discrimination by companies with 15 or more employees because of an individual’s race or color, religion, national origin or sex.

From the earliest days after Title VII was passed, the Equal Employment Opportunity Commission (EEOC), the federal agency set up to enforce the law, and the federal courts, both ruled that the statute’s ban on discrimination because of sex did not forbid discrimination because of a person’s sexual orientation or gender identity.  Although the statute did not contain an explicit definition of sex, which would seem to leave open the possibility of a broad interpretation to encompass all discrimination based on sexuality, before the 1990s the courts uniformly gave the term a narrow definition, relying on the idea that statutes should be interpreted in light of what the legislators who enacted them intended to achieve.

In 1964, the issues of anti-gay and anti-transgender discrimination were not on the radar of members of Congress.  In fact, the version of Title VII that was approved in the House committee and sent to the floor for consideration did not even include “sex” as a prohibited ground of discrimination.  The House had investigated the issue of sex discrimination, but the bill’s sponsors feared that including sex would make the bill too controversial, so they decided to present a narrower, less inclusive bill.

Opponents of the bill concurred with this conclusion, and decided to propose an amendment on the floor of the House to add sex as a strategy to defeat the bill.  They thought that if the amendment passed, the more expansive bill would be voted down, if not in the House, then in subsequent consideration in the Senate where a Southern filibuster was widely anticipated.  As soon as Representative Howard Smith of Virginia, a conservative Democrat who opposed the bill, proposed the floor amendment, the word went out to progressives and liberals who streamed onto the House floor to support the amendment.  They were also capable of counting votes and they thought that the bill could pass both houses with sex included. There was no discussion during the debate about whether a ban on sex discrimination would protect “homosexuals” or other “sexual deviants,” as the discourse at that time would have identified us.  The amendment passed, the bill passed the House, and after one of the longest filibusters in the history of Congress, it also passed the Senate.

In light of this history the EEOC and the courts refused to entertain gay and transgender discrimination claims under Title VII, finding that the term “sex” should be construed narrowly as the drafters of Title VII presumably would have intended, since nobody at the time thought that Congress had agreed to ban discrimination against gay and transgender people.

Then in 1989 the Supreme Court ruled for the first time that the ban on sex discrimination could be more broadly interpreted.  The case, Hopkins v. Price Waterhouse, involved a straight woman who was denied a promotion to the partnership at a national accounting firm.  The evidence showed that some partners objected to her candidacy because she was not “feminine” enough to suit their image of a “lady partner,” of which the firm had few.  Her boss told her that she needed to wear makeup and jewelry, dress more femininely, and tone down her act.  She was infamous in the firm for swearing like a top sergeant and riding her subordinates really hard to get projects done, which was why clients loved her.  Justice William J. Brennan wrote that when an employer relied on gender stereotypes in evaluating an employee for promotion, that was evidence of discrimination because of sex.

After this decision, federal courts began to change their tune, interpreting Title VII and other federal statutes banning sex discrimination as providing protection for people who encounter difficulties because they fail to meet society’s stereotypes about how men and women are supposed to present themselves.  These “gender nonconformity” cases tended to arise amidst claims of sexual harassment, which was emerging as a major new area of coverage under Title VII during the 1990s, and gay and transgender employees who encountered difficulties in the workplace began to raise these claims.  After some initial hesitation, the courts and the EEOC began to rule in their favor.

Although a gay or transgender employee subjected to harassment did not necessarily have a valid discrimination claim under Title VII, according to these rulings, they might have a valid claim if they could show that the harassment was because of gender stereotyping.  By the turn of the century, this proposition was well established and some courts began to take the next step, presuming that a transgender employee’s discrimination complaint by necessity incorporates a gender stereotyping claim and is covered by Title VII.   The courts found that a desire to “change sex” was, by definition, a failure to comport with gender stereotypes.

The major breakthrough decision on this was Smith v. City of Salem, Ohio, decided by the 6th Circuit Court of Appeals in Cincinnati in 2004.  When Jimmie Smith, a city firefighter, let it be known that she was transitioning, city officials convened an emergency meeting to plot some way to get her to resign.  When she sued them, the district court dismissed her case on the ground that gender identity discrimination was not covered by Title VII.  On appeal, the 6th Circuit disagreed, finding that gender identity claims come within the theory of gender stereotyping as it had developed since the Hopkins case.   In another case from the 6th Circuit involving a transgender firefighter, the Supreme Court denied review of a similar court of appeals decision.

Since then there have been several other important breakthroughs establishing protection for transgender employees.  The federal court of appeals for the 11th Circuit in Atlanta ruled in the Brumby case, involving a public employee in Georgia, that discrimination based on gender identity by a government employer violates the 14th Amendment’s Equal Protection Clause.  Last year, the EECO ruled in the Macy case, involving an applicant for federal employment that such discrimination, if proven, violates Title VII, citing both the 6th Circuit and other federal court cases and the 11th Circuit’s constitutional case.  A few weeks ago, ruling on the merits in the Macy case, the Justice Department’s internal appellate body approved the EEOC’s reasoning and found that denial of the position to the transgender applicant violated federal law.

Which takes us back to ENDA, now pending in the Senate.  ENDA was first introduced in 1993, amidst the controversial enactment of the Don’t Ask, Don’t Tell military policy.  Prior federal gay rights bills, dating back to the mid-1970s, would have amended Title VII and other federal civil rights laws to add “sexual preference” to the list of prohibited grounds of discrimination.  Gay rights leaders in 1993 decided to narrow the focus and introduce a bill that would only deal with employment discrimination based on sexual orientation, ENDA.  They came within one vote of getting it passed in the Senate in 1996, when it was considered in tandem with the Defense of Marriage Act.  But Republicans controlled both houses of Congress for most of the following decade and the bill never got beyond a committee hearing.

In 2007, after the Democrats won control of the House, Rep. Barney Frank introduced for the first time an inclusive version of ENDA that would cover gender identity and expression as well as sexual orientation.  However, Frank concluded after canvassing his colleagues that a bill that included gender identity could not pass the House.  He decided to withdraw the inclusive version and to introduce the narrower version that had almost passed the Senate a decade earlier.  This set off a furious debate among advocates in the LGBT community, with some organizations opposing passage of this version of ENDA, committed to the view that the gay rights and transgender rights movements must be a united front to vindicate the rights of all sexual minorities to be free of employment discrimination.  But Rep. Frank stuck to his position, arguing that passage of the narrower bill would be an important symbolic step, as no bill banning sexual orientation discrimination had ever been passed by either house at that point, and the politics of the Senate made it virtually impossible to pass ENDA through that chamber anyway so the vote would only be symbolic.  The narrow bill passed.

The election of Barack Obama on a platform that included support for an inclusive version of ENDA in 2008 also brought in Democratic majorities in both houses of Congress.  Rep. Frank reintroduced the inclusive version of ENDA and committed to supporting it.  By then, of course, the 6th Circuit had ruled that gender identity discrimination was covered under Title VII, but the Supreme Court had not ruled on the merits of such a claim, and most other federal circuit courts had not issued rulings.  Also, at that time neither the EEOC nor the Justice Department had ruled in favor of coverage of such discrimination under Title VII.  It was clear that inclusion of gender identity in ENDA was important, as it would put this into statutory law rather than leaving it to interpretations that could be repudiated by later courts or administrations.

This is where things stand at present.  The Obama Administration ranked passage of ENDA below the Hate Crimes Law, repeal of Don’t Ask Don’t Tell, and elimination of the Defense of Marriage Act, on its priority list.  With those accomplished, ENDA rises to the top.  The EEOC, the Justice Department, and an increasing number of federal courts now take the view that gender identity discrimination is forbidden by Title VII under the ban on sex discrimination.  Employers need to know that they have an obligation under federal law to treat transgender job applicants and employees fairly.  But court and administrative interpretations can change over time, and inclusion of gender identity in ENDA remains important because it would place that protection into statutory law in a more permanent way that would be binding on courts and employers without question.

Furthermore, the inclusion of gender identity is much less controversial now than it was in 2007, in light of the subsequent developments. An increasing number of states and municipalities have banned gender identity discrimination in their statutes and ordinances. In some jurisdictions such bans have been in effect for more than a decade, providing information about the effect of such laws that can counter the arguments that opponents have made against passing them.  The sky doesn’t fall in, and there is no indication that public or workplace restrooms and locker rooms have become more dangerous for women in jurisdictions that have banned gender identity discrimination. This data can be helpful in persuading members of Congress (and state and local legislators) that gender identity and sexual orientation should be included together in any anti-discrimination measures under consideration.

9th Circuit Rejects Constitutional Challenge to California Ban on Conversion Therapy for Minors

Posted on: August 29th, 2013 by Art Leonard No Comments
California Senate Bill 1172, which bans state-licensed mental health providers from conducting “sexual orientation change efforts” (SOCE), commonly known as “conversion therapy,” on patients who are under age 18, was scheduled to go into effect on January 1, 2013, but two lawsuits challenging its constitutionality, mainly on First Amendment free speech grounds, were filed by practitioners and others, leading to conflicting rulings on motions for preliminary relief.   On August 29, a 9th Circuit panel, ruling in a consolidated consideration of appeals from the two district court rulings, held that S.B. 1172 survived the constitutional challenges presented to the court, and remanded the two cases to the respective district court judges for further consistent proceedings.  Most significantly, the court ruled that the practice of SOCE, even though it mainly involves talking by the therapist and patient, is not “speech” protected by the First Amendment, but rather a medical practice that incidentally involves speech.  Pickup v. Brown, 2013 U.S. App. LEXIS 18068, 2013 WL 4564249. 

Writing for the court, Circuit Judge Susan P. Graber began by providing a brief history of SOCE and summarizing the views of professional associations in mental health and related fields.  SOCE efforts date from a time when it was widely believed that homosexuality was a form of mental illness requiring a cure, and both “aversive” and “non-aversive” methods were tried to attempt to change an individual’s sexual orientation.  Among the most controversial aversive methods were lobotomies, shock treatment, and induced nausea.  These have been disavowed by most contemporary practitioners of SOCE, including the plaintiffs in these cases, who assert that their treatments rely almost entirely on speech.  As such, they claim a First Amendment right to be free of state regulation of the treatments.   Since the American Psychiatric Association voted in 1973 to remove homosexuality from its published list of mental disorders (the Diagnostic and Statistical Manual), other major professional health organizations have followed suit, and having declared that homosexuality is not a mental illness, the mainstream mental health professions have rejected SOCE as unnecessary and ineffective.  Furthermore, based mainly on anecdotal evidence, which was considered by California legislators when they enacted S.B. 1172, the professional associations now condemn SOCE as potentially harmful to patients.

The legislation does not impose criminal penalties on therapists for providing SOCE to minors, but as a matter of regulation mandates that such treatment not be provided by licensed therapists and makes it a basis for loss of a license for unprofessional conduct.  Judge Graber points out that the law leaves licensed therapists free to talk about SOCE, to recommend it to their minor clients (who would have to go out of state to receive such “treatment” from a licensed professional), to advocate it publicly, and event to refer a minor to a non-licensed individual such as a religious authority.  However, if they want to provide such treatment themselves, they must either “wait until the minor turns 18 or be subject to professional discipline.”  Thus, in the court’s view, the law “regulates the provision of medical treatment, but leaves mental health providers free to discuss or recommend treatment and to express their views on any topic.”

Regulations of conduct are treated differently from regulations of speech.  The plaintiffs argued that because the treatment consisted mainly of speech, the strict rules worked out by the courts to protect speech under the First Amendment should apply, putting a high burden on the legislature to justify this restriction.  The court disagreed, finding that past cases had drawn a distinction between mental health treatment and speech.  “We distill the following relevant principles” from prior cases, wrote Graber: “(1) doctor-patient communications about medical treatment receive substantial First Amendment protection, but the government has more leeway to regulate the conduct necessary to administer treatment itself; (2) psychotherapists are not entitled to special First Amendment protection merely because the mechanism used to deliver mental health treatment is the spoken word; and (3) nevertheless, communication that occurs during psychotherapy does receive some constitutional protection, but it is not immune from regulation.”

“Because SB 1172 regulates only treatment,” wrote Graber, “while leaving mental health providers free to discuss and recommend, or recommend against, SOCE, we conclude that any effect it may have on free speech interests is merely incidental.  Therefore, we hold that SB 1172 is subject to only rational basis review and must be upheld if it ‘bears a rational relationship to a legitimate state interest.’”  As to that, “protecting the physical and psychological well-being of minors, including lesbian, gay, bisexual and transgender youth, and in protecting minors against exposure to serious harms caused by sexual orientation change efforts” was the interest stated by the legislature, and the court found that “protecting the well-being of minors is a legitimate state interest.”  Did legislators have a rational basis for concluding that this law could advance such an interest?  Surely yes, in light of the evidence considered by the legislature about the ineffectiveness of SOCE and its harmful effects.

The legislature relied heavily on a report compiled by an American Psychological Association Task Force, as well as formal resolutions adopted by “many other professional associations.”   With few exceptions, the mainstream of professional organizations in the medical and mental health fields has arrived at “the overwhelming consensus” that “SOCE was harmful and ineffective.”  Wrote Graber, “On this record, we have no trouble concluding that the legislature acted rationally by relying on that consensus.”

The court also disposed of various other arguments plaintiffs had raised.  It found that the relationship of doctor and patient did not amount to an “expressive association” meriting constitutional protection, that the measure was not unduly vague or overly broad, and that it did not abridge the fundamental rights of parents regarding the upbringing of their children.  “Although the plaintiffs argue that they cannot ascertain where the line is between what is prohibited and what is permitted – for example, they wonder whether the mere dissemination of information about SOCE would subject them to discipline – the text of SB 1172 is clear to a reasonable person.”

“Moreover,” Graber pointed out, “considering that SB 1172 regulates licensed mental health providers, who constitute ‘a select group of persons having specialized knowledge,’ the standard for clarity is lower.” 

As to the overbreadth argument, Graber reiterated that the effect of the law on speech was incidental to its regulation of medical practice, and “any incidental effect,” she wrote, “is small in comparison with the ‘plainly legitimate sweep’ of the ban.”

Finally, as to parental rights, she pointed out that the state has been upheld in a variety of contexts in imposing or prohibiting particular medical treatments.  For example, compulsory vaccination schemes have been upheld over the protest of parents, and the courts have stepped in to mandate medical treatments that were rejected by parents on religious grounds.  “We are unaware of any case that specifically addresses whether a parent’s fundamental rights encompass the right to choose for a child a particular type of provider for a particular treatment that the state has deemed harmful,” Judge Graber wrote, “but courts that have considered whether patients have the right to choose specific treatments for themselves have concluded that they do not.”  Clearly, parents’ rights concerning treatment for their children would not be greater than their rights concerning their own treatment.

Although it seems likely that the plaintiffs will seek further review, it is unlikely that the 9th Circuit would agree to delay further the implementation of the law pending such an appeal.

In addition to attorneys from the Attorney General’s Office, the law was defended by intervenors represented by the National Center for Lesbian Rights, whose legal director, Shannon Minter, participated in the oral argument before the 9th Circuit.  The case attracted amicus briefs from a wide range of professional groups, and all the major LGBT rights organizations participated in some form in the case.  The court’s decision may prove influential outside the 9th Circuit, as a legal challenge gets underway in New Jersey to a similar statute recently signed into law by Governor Chris Christie.

9th Circuit Orders Withholding of Removal for Gay Man from Philippines

Posted on: July 25th, 2013 by Art Leonard No Comments

A unanimous panel of the U.S. 9th Circuit Court of Appeals, based in San Francisco, ruled on July 24 in Vitug v. Holder, 2013 Westlaw 3814772, that the Board of Immigration Appeals (BIA) should not have reversed a ruling by an Immigration Judge (IJ) that Dennis Vitug, a gay man from the Philippines, was entitled to remain in the United States under U.S. laws providing refuge for people subjected to persecution in their home countries.  The court backed up the Immigration Judge’s conclusion that Vitug had shown that he was subjected to persecution, and that the government failed to meet its burden to show that conditions in the Philippines had changed sufficiently to rebut the presumption that Vitug would suffer persecution if required to return.

Writing for the appellate panel, Judge Harry Pregerson pointed out that the IJ had found Vitug to be a credible witness and had concluded that Vitug had been beaten and robbed five times in Manila “after being targeted as a homosexual,” had been harassed by police officers based on his “perceived sexual orientation,” and had been unable to find a job “on account of his sexual orientation.”  The IJ had also found, based on the evidence Vitug presented, that (1) “The police will not do anything to help gay men who report abuse but will rather ridicule them and tell them they deserve it,” and (2) “The government has failed or refused to protect gay men from persecution.”

The IJ concluded that Vitug had been persecuted “because of his membership in the social group of homosexual Filipino men,” and that the government had not presented any contrary evidence.   The IJ also concluded that Vitug might be subjected to torture if deported back to the Philippines, finding him eligible for protection under the Convention Against Torture, an international treaty to which the U.S. is a party, which requires our country to give refuge to people who might be subjected to torture in their home country.

Under the rules governing administrative review, these IJ findings should not generally be reversible by the Board of Immigration Appeals, yet the government persuaded the BIA to reverse, based on the Board’s own view of the evidence.  (The BIA decision was issued on November 6, 2007, and is fairly representative of the kind of anti-gay bias exhibited by the BIA during the Bush Administration.)   “In reaching its decision,” wrote Judge Pregerson, “the BIA did not expressly find any of the IJ’s factual findings to be clearly erroneous.”  Instead, it predicated its reversal on its own review of the record, opining that Vitug had failed to prove that the attacks against him “rose to the level of past persecution,” that a particular attack against him by a man he met in a bar was merely a “crime of opportunity”, and that “the record does not support the conclusion that the [Philippine] government would be unable or unwilling to protect him,” because Vitug had actually returned to the Philippines after his first US visitor visa expired, then returned to the U.S. on a  new visitor visa, which he overstayed, finding work in the U.S.  Finally, the BIA found a lack of evidence in the record that Vitug would face torture in the Philippines.

Vitug filed a motion for reconsideration, but it was rejected by the BIA because it arrived one day after the filing deadline, due to a snowstorm and the grounding of FedEx planes, according to Pregerson’s opinion.  The BIA issued an amended order in February 2008 to correct a misstatement in its prior decision, and Vitug again filed for reconsideration, this time meeting the deadline, but the BIA denied his motion in a confused statement that the appeals court found to be internally contradictory.

The Court of Appeals found that the BIA had overstepped its role regarding the finding on persecution, pointing out that “DHS regulations prohibit the BIA from ‘engaging in de novo review of findings of fact determined by an immigration judge.'”  Wrote Pregerson, “We conclude that in its original November 6, 2007 decision, the BIA engaged in its own factfinding.  Such factfinding was improper.”  The court went through various aspects of the BIA opinion, pointing out places where it had obviously engaged in factfinding contrary to the facts found by the IJ, and had ignored “factual findings of the IJ that were key to the IJ’s holding,” which the court found to be an abuse of discretion.

Having found that the BIA “failed to apply the clear error standard of review to the IJ’s factual findings, and also abused its discretion by ignoring the factual findings of the IJ,” the court would normally remand the case so that BIA could apply the correct standard, but it found no need to do so here, “because substantial evidence does not support the BIA’s denial of withholding of removal.”

Pregerson pointed out that under immigration law, once a petitioner has established that he is a victim of past persecution based on one of the grounds recognized by the courts — which include, for this case, sexual orientation — there is a presumption of entitlement to the remedy of withholding of removal, which would allow the petitioner to remain in the United States.  The government can only prevail in such a case if it can “show by a preponderance of the evidence that there has been a fundamental change in circumstances such that the petitioner’s life or freedom would not be threatened or that the petitioner could relocate internally within his home country to avoid persecution.” 

In this case, wrote Pregerson, the government had failed to meet this burden.  The IJ found Vitug to be a credible witness, and accepted his testimony about the persecution he had suffered.  The government did not challenge this finding, and did not introduce any contradictory evidence.  Wrote Pregerson, “No reasonable factfinder could conclude that the harm Vitug suffered did not rise to the level of persecution in light of the cumulative effect of multiple instances of physical harm and victimization,” so he is presumptively entitled to stay in the U.S.  The only basis for the government’s argument to the contrary was some references in Vitug’s documentary evidence that there was some gay activism going on in the Philippines and that one municipality had passed a local ordinance to protect gays from discrimination.  “Such evidence, however, does not indicate that there is any less violence against gay men or that police have become more responsive to reports of antigay hate crimes,” wrote Pregerson.  “The government therefore failed to meet its burden of proof to show by a preponderance of the evidence that the circumstances within the Philippines have changed such that Vitug no longer faces a threat to his life or freedom in the Philippines.”

While the court agreed with the BIA that the IJ’s conclusion as to torture was not supported by the IJ’s factual findings and refused to upset the BIA’s reversal on the issue of Convention Against Torture relief, the court ordered the BIA to grant withholding of removal status to Vitug, ending any effort to deport him from the United States.

There is a certain irony about the case having taken so long to be considered by the 9th Circuit.  The IJ’s decision was issued in 2007, based on a hearing held in June of that year, which basically froze the factual record as of that date.  The BIA decisions came later in 2007 and early in 2008, and then Vitug appealed.  The sheer volume of asylum/withholding/CAT appeals is so great in many circuits — and especially in the 9th, which covers the entire west coast — that it may take many years until a panel of the court actually takes up the case for decision.  In this case, the court unusually scheduled a hearing, which was held on February 7, 2013, and was limited, of course, to Vitug’s argument that the BIA had improperly reversed the IJ based on the record compiled at the 2007 hearing.   It may be that conditions for gay people in the Philippines have improved since then — after all, six years have gone by and there have been some court rulings in the Philippines that have advanced gay rights — but that would be irrelevant, since the case must be decided based on the record made at the 2007 hearing.  Welcome to the surreal world of American administrative law, where time stands still!

 

Federal Court Addresses How to Charge Juries in Federal Hate Crimes Cases

Posted on: July 5th, 2013 by Art Leonard No Comments

U.S. District Judge Gregory F. Van Tatenhove (E.D. Ky.) recently conducted a trial of several members of the Jenkins family who were charge with kidnapping and beating Kevin Pennington, a gay man, because of his sexual orientation.  Two members of the family, women, had pled guilty to lesser charges of assisting in commission of the crimes, but Jason and Anthony Jenkins, who performed the physical assault on Pennington, went to trial, and the court had to determine how to charge the jury regarding the hate crime counts against them.  The jury convicted both men on the kidnaping and assault charges, but acquitted on the hate crime charge.  The judge imposed sentences late in June, issuing a written opinion on June 20 explaining how he determined the sentences.  See 2013 Westlaw 3158210.  Then on July 2, he issued another opinion, this time explaining his charge to the jury on the hate crime count. See 2013 Westlaw 3338650.  While such a district court opinion does not create a precedent binding on other courts, it may be very influential as the first published opinion to grapple with the sentencing issue in the context of an anti-gay hate crime charge.

“For the first time in the nation,” wrote Judge Tatenhove, “the government sought to hold defendants responsible for committing this crime “because of” one particular reason — the admitted sexual orientation of the victim.  Here, the victim is gay.  And at the end of many days of testimony, the jury decided that the government had failed to prove that these defendants committed that crime.”  Tatenhove had charged the jury that it could find the defendants guilty on the hate crime charge if the government proved beyond a reasonable doubt that Pennington’s sexual orientation was a “substantial motivating factor” in the crime, having rejected the government’s initial request for a charge requiring a finding that Pennington’s sexual orientation was “a motivating factor” and the defense’s argument that under case law concerning different statutes that use “because of” terminology, the government would have to show that Pennington’s sexual orientation was the sole motivating factor in order to win a conviction.

Tatenhove’s discussion of this is particularly timely because the Supreme Court issued a decision on June 24, 2013, Univ. of Texas Southwestern Medical Center v. Nassar, 2013 Westlaw 3155234, addressing this issue in the context of a retaliation claim under Title VII of the Civil Rights Act of 1964, which imposes liability on an employer for taking adverse action against an employee “because” the employee has filed a complaint of unlawful discrimination or participated in a proceeding under the Civil Rights Act.  

In Nassar, the Court held, following its earlier reasoning in Gross v. FBL Financial Services, 557 US 167 (2009), a case decided under the Age Discrimination in Employment Act (ADEA), that a plaintiff does not benefit from the “mixed-motive” amendment that Congress added to Title VII in 1991, when bringing an age discrimination or retaliation claim.  Under the mixed- motive approach, if an employee shows that the employer’s action was motivated by the employee’s protected status (race or color, sex, religion, national origin), the employer will be found to have violated the Act even though it has proved that there was also a non-discriminatory reason that would justify its action.  Such a case, involving “mixed motives,” would result in a limited remedy for the employee, since the employer had proved a non-discriminatory justification for its action, but the employer would be found to violate the Act nonetheless, as Congress decreed in its 1991 mixed-motive amendment.  The Court held in Nassar that the mixed-motive amendment applied only to status discrimination claims under Title VII, but not to retaliation claims, based on the Court’s strict construction of the wording of the amendment.  As noted above, the Court had previously ruled out the mixed-motive approach in age discrimination cases, finding that the mixed-motive amendment, by its terms, did not apply to cases arising under statutes other than Title VII of the Civil Rights Act.  Thus, it seems that a retaliation claim can succeed only if the plaintiff shows that the sole reason for the employer’s action was the employee’s protected activity of filing a discrimination charge, or, in an age discrimination case, that the plaintiff’s age was the sole reason for the employer’s challenged action.

Given this history, Tatenhove found, he could not accede to the government’s request to charge the jury that it could convict on the hate crime charge upon proof that Pennington’s sexual orientation was “a motivating factor” in the Jenkins’ decision to go after him.  He described existing cases concerning racially-motivated hate crimes, finding that the 6th Circuit had adopted a “substantial reason” charge in one case, McGee, relying on a prior decision by the 8th Circuit.  He also noted a district court decision in a hate crime case from Ohio involving religion, where the court instructed the jury using the phrase “significant motivating factor.”  Thus, it appeared that several courts dealing with hate crime cases involving other categories had not required that the prohibited ground be the “sole” reason why the defendant had attacked the victim.

But the court saw Gross as a problem, because the hate crimes law uses the same “because of” language as the ADEA.  “The Court recognized that Congress had utilized the ‘a motivating factor’ standard and the burden shifting framework in the Title VII context, but as no such amendment had been provided by Congress for the ADEA, the normal meaning of ‘because of’ should govern” in an ADEA case.  Thus, in Gross, the Supreme Court “concluded that, ‘under Sec. 623(a)(1), the plaintiff retains the burden of persuasion to establish that age was the ‘but-for’ cause of the employer’s adverse action.”  Tatenhove noted that recently the 6th Circuit had applied Gross to a case under the Americans With Disabilities Act, which uses similar “because of” language in its operative provision. 

The judge found the case law perplexing when focusing on how to charge the jury in the Jenkins case.  “So,” he wrote, “the phrase ‘because of’ has meant ‘a motivating factor,’ or ‘a substantial reason,’ or ‘a significant factor,’ or ‘solely because of,’ or the ‘but-for’ cause of.  Why?  It is not because Congress has clearly defined the phrase beyond the clear meaning of the words. Instead, where the line is drawn appears to rest on the predilections of a particular judge or court.  That is not how this is supposed to work.” 

He went on to describe the policy implications of picking one formulation as opposed to another.  He characterized the arguments between the prosecution and the defense in this case over the correct jury charge as having “the decided feel of a legislative mark-up session during a congressional session rather than a charge conference.  The words here, ‘because of’, must mean something concrete that is solid and unalterable from case to case to case.  Otherwise, as noted, the trial judge becomes a one person policy shop deciding, what?  How compelling the facts are of a particular case?  Whether justice requires that a person lose their liberty if they had just a trace of hate in their heart, or, on the other hand, acted solely because of that hate and for no other reason?  Whatever the strengths of the modern judiciary, we not only should not make such decisions, we are designed to be particularly bad at them.”  He also noted that an “expansive interpretation of the statutory language could certainly raise constitutional questions.”

He noted that during the argument over charging, the prosecution had changed its position, giving up the demand for “a motivating factor” and being willing to settle for something intermediate between that and the “but-for” language of Gross.  The government argued that the court was not required to treat Gross as binding merely because of the same wording in the two statutes, but instead “should rely heavily on legisaltive history to uncover the intent of Congress as to the appropriate standard for each statute.”  As to this, Congress clearly intended to expand the applicability of the hate crimes law, so, argued the prosecution, “a more narrow standard would be counter to this intent.”  The judge pointed out that the 6th Circuit, confronted by this kind of argument, had ultimately concluded that “in the end it is the text that matters.”  And, as to the legislative history of the hate crimes law, he said, “Congress never mentions that it seeks to expand the reach of sec. 245 by altering the meaning of the words ‘because of’ to lower the standard necessary to prove that element of the crime.”  Indeed, Congress never explicitly addressed the issue, so the “but-for” test looms as the one that must be used.

However, Tatenhove decided not to use the phrase “but-for” in his charge.  “Congress could not have meant for ‘because of’ to stand for the proposition that only when motivated by no other factors than sexual orientation should the law apply,” he asserted.  “That would fly in the face of common sense and what we know about human interaction.  But, as discussed above, unless somehow modified by Congress, the plain meaning of the words ‘because of’ must mean that the sexual orientation of the victim becomes a necessary prerequisite to the assault.  That is a status reserved only for the most substantial of the motivating factors.  There may be others of substance, but, in the final analysis, sexual orientation must be the factor that motivates the conduct — ‘the substantial faactor.’  Other courts will no doubt wrestle with this same issue, reach similar conclusions, and rest on different, and perhaps better, language to communicate the meaning of those conclusions.  That is the natural progression of the common law and the craft of being a judge.”

So Judge Tatenhove used “substantial motivating factor” in his jury charge, apparently believing that this met the “but-for” requirement of Gross but without imposing a “sole reason” test.  For example, if Pennington’s sexual orientation was a “substantial factor” in explaining why he was the victim of the Jenkins’ assault, but the jury had evidence that the Jenkins had some other gripe against Pennington having nothing directly to do with his sexual orientation but which played as much of a part in their reasons for going after him, then would the hate crimes law apply?  Would the prosecution have to show that the Jenkins’ would not have carried out their grudge against Pennington  in the form of an actual kidnapping assault if he was not gay, in order to win a conviction on the hate crimes count?

In this case, thus charged, the jury acquitted Jason and Anthony Jenkins of the hate crimes charge, while convicting on kidnapping and assault.  Did the charge give the jury pause and ultimately lead to acquittal on the hate crimes charge?  Without having seen all the evidence that the jury saw, one is not in a position to second-guess, but presumably the wording of charges does make a difference, or opposing counsel would not argue vociferously about them.  Is it possible that the jury charge sought by the prosecution would have led to a conviction based on the evidence presented?  Media accounts of the trial suggest that Pennington’s sexual orientation was very much a factor in making him a victim in this case.

Ultimately, however, the question is for Congress.  Is it satisfied with the Court’s decisions in Gross and Nassar?  If not, Congress should consider clarifying its intent.  One simple way would be to add an interpretive amendment to all statutes that use “because of” language, describing the standard of proof to be required for prosecutions or enforcement actions under the statutes.  The 1991 amendment to Title VII (Sec. 703(m)), could be amended to overrule Nassar and apply the mixed-motive test in all “because of” cases under Title VII, and could be imported into the ADEA and the ADA.  Similar language might be adopted as an amendment to the Hate Crimes Act.  And similar language should be considered for the pending Employment Non-Discrimination Act (ENDA), which will be receiving a mark-up hearing in the Senate on July 10.

International Court Rejects Discrimination Claims by Christians Who Won’t Serve Gays

Posted on: January 16th, 2013 by Art Leonard No Comments

The 4th Section chamber of the European Court of Human Rights has ruled that the United Kingdom is acting within the “margin of appreciation” under the European Convention on Human Rights in upholding the decisions by two employers to discharge employees who were unwilling to abide by the employers’ non-discrimination policies, which forbid sexual orientation discrimination. The employees in question, one governmental and one non-governmental, posed objections based on their Christian beliefs.

The 4th Section’s ruling will not be final until losing parties have an opportunity to seek further consideration from a larger body of judges. The decision is available on the court’s website under the title “Case of Eweida and Others v. The United Kingdom” (15 January 2013).

In the same decision, the Court also ruled on discrimination claims from two employees who claimed discrimination regarding their insistence on wearing a cross on a necklace chain at work. The Court held that British Airways should not have suspended a customer service representative over this issue, but that a health care organization could properly forbid an employee from wearing such a religious ornament on safety grounds.

In the first of the two gay-related cases, Lillian Ladele, employed by the London Borough of Islington as a registrar of vital records, encountered difficulty when the U.K. legislated to authorize civil partnerships for same-sex partners, that would be conducted in civil registry offices. Ms Ladele has religious objections to performing such ceremonies, and ultimately the Borough dismissed her, concluding that it would be inconsistent with the local government’s policy against discrimination to employ a registrar who would refuse to perform these ceremonies for same-sex couples. She brought her case to an Employment Tribunal, which ruled in her favor, but the local government authority appealed and won a reversal from the Employment Appeal Tribunal, which held that the local authority’s legitimate aim of providing registrar service on a non-discriminatory basis justified discharging an employee who was unwilling to provide such service. The Court of Appeal affirmed, finding that the local authority’s “laudable aim was to avoid, or at least, minimise, discrimination both among Islington’s employees, and as between Islington (and its employees) and those in the community they served.”

In the other case, Gary McFarlane, a retired “elder of a large multicultural church in Bristol,” was working as a counselor for Relate Foundation, which provides confidential sex therapy and relationship counseling to clients, under ethical principles established by the British Association for Sexual and Relationship Therapy. These principles forbid discrimination based on sexual orientation. McFarlane’s work as a counselor ended over his religiously-based reluctance to provide therapy to same-sex couples. The Employment Tribunal found that he had not been discharged due to his faith, as such, but because his expressed views indicated he would not be able to provide “the full range of services to all sections of the community, regardless of sexual orientation,” which the Tribunal found to be legitimate aim of the employer. The Appeal Tribunal upheld this ruling, and the Court of Appeal refused his application to appeal.

In all four cases, the Court of Human Rights faced the question whether the employees had raised a valid concern of either direct or indirect discrimination based on religion. In confronting this issue, the Court went beyond its prior precedents, according to press accounts of the ruling, to find that there was at least indirect discrimination that could implicate the Convention protection of religious liberty, but in the two gay-related cases as well as the hospital case, a majority of the panel concluded that either the discrimination was justified on practical grounds (the hospital case) or was within the “margin of appreciation” afforded by the Convention to contracting parties (i.e., countries party to the convention) who were in the position of having to balance contending Convention rights.

The Convention has been construed in past cases to ban sexual orientation discrimination as well as religious discrimination, which means that countries governed by the Convention can legitimately seek to ensure that LGBT citizens are not subjected to discrimination by entities such as government registry offices and private counseling services.

Under the court’s decision, a country’s statutory law or legal system would not necessarily be compelled to balance the rights in this way, as some commentators quickly pointed out. But the decisions by the Employment Appeals Tribunal and, in one case, the Court of Appeal, struck a balance that was deemed acceptable by the Court in allowing the employers in question to give more weight to the non-discrimination rights of clients than the religious objections of individual employees.

The decision in favor of the airline customer service worker led to the ruling being hailed in some British newspapers as a victory for religious freedom, although some of the same commentators inevitably saw the rulings against Ms. Lalede and Mr. McFarlane as a defeat for religious rights.

Interestingly, the Court’s opinion briefly summarizes foreign authority, noting that under Title VII of the U.S. Civil Rights Act of 1964, employers are required to make a “reasonable accommodation” to religious practices and beliefs of employees. But the court’s discussion of U.S. law seems focused entirely on the issue of wearing a cross, making no direct reference to U.S. cases concerning employees who object to providing services to LGBT customers. There has been a recent split of authority among U.S. courts on the question whether students in public university graduate degree counseling programs may be dismissed when their religious views get in the way of providing counseling to same-sex couples.