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Trump Administration Withdraws Title IX Guidance in Contradictory “Dear Colleague” Letter

Posted on: February 23rd, 2017 by Art Leonard No Comments

 

The Trump Administration, keeping a promise made by Donald Trump during his campaign to leave the issue of restroom and locker room access by transgender students up to state and local officials, issued a letter to all the nation’s school districts on February 22, withdrawing a letter that the Obama Administration Education Department submitted in the Gavin Grimm transgender rights case on January 7, 2015, and a “Dear Colleague” letter sent jointly by the Education and Justice Departments to the nation’s school districts on May 13, 2016.

 

The Obama Administration letters had communicated an interpretation of Title IX of the Education Amendments of 1972, a statute banning sex discrimination by educational institutions that receive federal money, as well as a DOE regulation issued under Title IX, 34 C.F.R. Section 106.33, governing sex-segregated facilities in educational institutions, to require those institutions to allow transgender students and staff to use facilities consistent with their gender identity. The regulation says that educational facilities may have sex-segregated facilities, so long as they are “equal.”

 

The February 22 letter states that the Departments “have decided to withdraw and rescind the above-referenced guidance documents in order to further and more completely consider the legal issues involved. The Department thus will not rely on the views expressed within them.”  It also states that the departments “believe that, in this context, there must be due regard for the primary role of the States and local school districts in establishing educational policy,” embodying Trump’s articulated campaign position on this issue.

 

At the same time, however, the February 22 letter stated: “All schools must ensure that all students, including LGBT students, are able to learn and thrive in a safe environment,” and insisted that the withdrawal of the earlier guidance documents “does not leave students without protections from discrimination, bullying, or harassment” and that the Education Department’s Office of Civil Rights “will continue its duty under law to hear all claims of discrimination and will explore every opportunity to protect all students and to encourage civility in our classrooms.” It asserts that the two departments “are committed to the application of Title IX and other federal laws to ensure such protection.”

 

However, Press Secretary Sean Spicer said on February 22 that the administration was analyzing its overall position on Title IX, which could result in parting ways from the Obama Administration’s view that Title IX prohibits gender identity discrimination in schools.

 

Thus, an internal contradiction appears. The letter at least implies that sexual orientation and gender identity discrimination do violate Title IX, but that the question whether transgender students should be allowed access to sex-segregated facilities consistent with their gender identity needs further study and perhaps needs to be addressed in a new regulation accompanied by detailed analysis that is put through the Administrative Procedure Act process of publication of proposed rules, public comment and hearing, and final publication in the Federal Register, with Congress having a period of several months during which it can intervene to block a new regulation.

 

The Solicitor General’s office, which represents the government in Supreme Court cases, also informed the Court on February 22 that the Obama Administration guidance documents had been withdrawn, that the views expressed in them would no longer be relied upon by those executive branch agencies, and that, instead, the administration would “consider further and more completely the legal issues involved.”

 

This development comes just six weeks before the Supreme Court argument scheduled for March 28 in Gloucester County School District v. G.G. (the Gavin Grimm case), and just before the due date for the Solicitor General to file an amicus brief presenting the government’s position on the issues before the Court.

 

The Court might react to this development in a variety of ways. Since the government is not a party in the case, the Court might just ignore the letter and go ahead with the argument.  Or it might consider that this development renders moot one or both of the questions on which it granted review, which could lead to a reshaping of the case to focus solely on the appropriate interpretation of Title IX and the facilities regulation.  It might even decide that the entire case should be sent back to the 4th Circuit for reconsideration in light of these developments.

 

The new Dear Colleague letter, sent over the signatures of Acting Assistant Secretary for Civil Rights Sandra Battle (Education Department) and Acting Assistant Attorney General for Civil Rights T.E. Wheeler, II (Justice Department), shows the signs of compromise reflecting the reported battle between Betsy DeVos, the recently-confirmed Secretary of Education, and Jeff Sessions, the recently-confirmed Attorney General. Several media sources reported that DeVos did not want to withdraw the earlier Guidance, but that Sessions was determined to do so.

 

In light of his record on LGBT issues as a Senator and former Attorney General of Alabama, Sessions is reportedly bent on reversing the numerous Obama Administration regulations and policy statements extending protection to LGBT people under existing laws. It was probably a big disappointment to him that the President decided not to rescind Obama’s Executive Order imposing on federal contractors an obligation not to discriminate because of sexual orientation or gender identity, and we may not have heard the last on that issue.

 

DeVos, by contrast, is reportedly pro-LGBT, despite the political views of her family, who are major donors to anti-LGBT organizations. According to press accounts, for example, in Michigan she intervened on behalf of a gay Republican Party official whose position was endangered when he married his partner.

 

Several newspapers and websites have reported that DeVos and Session brought their dispute to the President, who resolved it in favor of Sessions, leaving it to them to work out the details. Trump was undoubtedly responding to the charge by many Republicans that the Obama Administration had “overreached” in its executive orders and less formal policy statements, going beyond the bounds of existing legislation to make “new law” in areas where Congress had refused to act and overriding state and local officials on a sensitive issue.  In this case, Republicans in both houses had bottled up the Equality Act, a bill that would have added sexual orientation and gender identity as explicitly forbidden grounds for discrimination in a variety of federal statutes, including Title IX.

 

While withdrawing the Obama Guidance documents, the February 22 the letter does not state a firm position on how Title IX should be interpreted, either generally in terms of gender identity discrimination or specifically in terms of access to sex-segregated facilities, such as restrooms and locker rooms. It criticizes the withdrawn documents as failing to “contain extensive legal analysis or explain how the position is consistent with the express language of Title IX,” and points out that they did not “undergo any formal public process,” a reference to the Administrative Procedure Act steps that are necessary to issue formal regulations that have the force of law.

 

While the withdrawn guidance documents did not have the force of law, they communicated to schools that the Education Department believed that Title IX bars gender identity discrimination and requires access to facilities consistent with a person’s gender identity, which meant that the Education Department or the Justice Department might initiate litigation or seek suspension of federal funding against districts which failed to comply. In the end, it would be up to courts to decide whether to follow this interpretation.  Furthermore, federal courts have found an “implied right of action” by individuals to bring suit to enforce their rights under Title IX, and that is not changed by withdrawal of the guidance documents.

 

The 4th Circuit’s decision of May 2016, up for review by the Supreme Court, came in a lawsuit initiated by an individual high school student, Gavin Grimm, a transgender boy who was barred from using the boys’ restrooms at his high school by a resolution of the Gloucester County, Virginia, School Board after it received complaints from members of the community. District Judge Robert Doumar had dismissed Grimm’s Title IX complaint, even though the Obama Administration sent its January 7, 2015, letter, informing the court that the Education Department believed that Title IX required the school district to let Grimm use the boys’ restrooms.  The 4th Circuit ruled that Judge Doumar should have deferred to the Education Department’s interpretation, as the regulation governing sex-segregated facilities was ambiguous on the question and the Department’s interpretation, which relied on federal appeals court and administrative agency decisions under other sex discrimination statutes finding that gender identity discrimination was a form of sex discrimination, was “reasonable.”  The School District petitioned the Supreme Court to review this ruling.

 

The Supreme Court agreed to consider two questions: (1) Whether deference to an informal letter from the Education Department was appropriate, and (2) whether the Department’s interpretation of Title IX and the regulation was correct. With the letter having been withdrawn, the question of deferring to it may be considered a moot point, but some commentators on administrative law had been hoping the Court would use this case as a vehicle to abandon its past ruling that courts should give broad deference to agency interpretations of ambiguous regulations, and the Court could decide that this issue has not really been rendered moot since it is a recurring one. Indeed, the February 22 letter implicitly raises the new question of whether the courts should defer to it in place of the withdrawn Guidance.

 

The Supreme Court’s agreement to consider whether the Education Department’s interpretation was correct might also be considered moot, since the Education Department has abandoned that interpretation, but certainly the underlying question of how Title IX and the regulation should be interpreted is very much alive, as several courts around the country are considering the question in cases filed by individual transgender students, states, and the Obama Administration (in its challenge to North Carolina’s H.B. 2, which is based on Title IX, Title VII of the Civil Rights Act, and the Equal Protection Clause of the Constitution).

 

Two groups of states filed suit in federal courts challenging the Dear Colleague letter of May 13, 2016. In one of those lawsuits, with Texas as the lead plaintiff, Judge Reed O’Connor of the Northern District of Texas ruled that the plaintiffs were likely to succeed in their challenge, and issued a nationwide preliminary injunction last August forbidding the government from enforcing this interpretation of Title IX in any new investigation or case.  The DOE/DOJ February 22 letter points out that this nationwide injunction is still in effect, so the departments were not able to investigate new charges or initiate new lawsuits in any event.  What it doesn’t mention is that the Obama Administration filed an appeal to the 5th Circuit, challenging the nationwide scope of the injunction, but the Trump Administration recently withdrew that appeal, getting the 5th Circuit to cancel a scheduled oral argument.  Of course, these lawsuits specifically challenging the Obama Administrative Guidance documents are now moot with those documents having been withdrawn by the Trump Administration, since the plaintiffs in those cases sought only prospective relief which is now unnecessary from their point of view.  Presumably a motion to dismiss as moot would be granted by Judge O’Connor, dissolving the preliminary injunction.  O’Connor’s order never had any effect on the ability of non-governmental plaintiffs, such as Gavin Grimm, to file suit under Title IX.

 

In North Carolina, the Obama Administration, former governor Pat McCrory, Republican state legislative leaders, a group representing parents and students opposed to transgender restroom access, and transgender people represented by public interest lawyers had all filed lawsuits challenging or defending H.B.2. The Trump Administration’s February 22 actions may signal that at least the federal government is likely either to abandon or cut down on the scope of its lawsuit challenging H.B.2.  Since North Carolina is in the 4th Circuit, all of these cases were likely to be affected by a reconsideration by the 4th Circuit in light of these new developments.  Around the country, several pending lawsuits have been put “on hold” by federal district judges as well, while awaiting Supreme Court action on the Gavin Grimm case.  If the Supreme Court were to reject the argument that “sex discrimination” in a statute can be broadly construed to encompass gender identity, these cases, arising under either Title IX or Title VII, may be dismissed.

 

Since the confirmation hearing for 10th Circuit Judge Neil Gorsuch, nominated by Trump for the Supreme Court vacancy, is scheduled to take place on March 20, and Democratic opposition may stretch out the confirmation process, it seems likely that there will be only eight members on the Supreme Court to consider the Grimm case. In that event, it was widely predicted that the result would be either a tie affirming the 4th Circuit without opinion and avoiding a national precedent, or a 5-3 vote with an opinion most likely by Justice Anthony Kennedy, joining with the more liberal justices to adopt the more expansive reading of Title IX.  However, this will be the first time the Supreme Court has tackled directly a gender identity issue under sex discrimination laws, so predicting how any member of the Court may vote is completely speculative.

 

 

Lesbian Mom’s Case Closer To Supreme Court Review

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

A lesbian mother’s quest for joint custody of the children she had adopted in Georgia and raised together with her former same-sex partner took a step closer to the Supreme Court on Monday, December 14, when the Court granted her “Application for Recall and Stay of Certificate of Judgment of Alabama Supreme Court.”  V.L. v. E.L., No. 15-648.  V.L. is asking the Supreme Court to overturn a September 18 ruling by the Alabama Supreme Court, which refused to recognize the validity of the adoptions, having filed her Petition for Certiorari with the Supreme Court on November 16.

The Supreme Court justices did not explain their grant of this stay request.  They normally issue no explanations for their rulings on such applications, but, as Chief Justice John Roberts explained in 2012 in an “in chambers” ruling on such a petition (see Maryland v. King, 133 S. Ct. 1, 2 (2012)), a stay of a lower court decision while the Supreme Court is deciding whether to grant review is warranted when there is “(1) a reasonable probability that this Court will grant certiorari, (2) a fair prospect that the Court will then reverse the decision below, and (3) a likelihood that irreparable harm will result from the denial of a stay.”  The Court did state that if it denies review in this case, the stay will terminate automatically.  If it grants review, the stay will be in effect as long as the case is pending before the Supreme Court.

The Alabama Supreme Court’s refusal to recognize the Georgia adoption meant that V.L. had no legal standing to seek joint custody or visitation in the Alabama circuit court, and that the interim visitation order issued by the circuit court and affirmed by that state’s court of appeals was terminated, disrupting V.L.’s relationship with her children.  Unless the Alabama Supreme Court’s ruling was stayed pending appeal, V.L. and her children could suffer a prolonged period of separation, an injury not reparable through damages or other retrospective judicial relief and thus “irreparable” for purposes of this stay application.

Perhaps more to the point, the Alabama Supreme Court’s refusal to recognize the Georgia adoption was a clear departure from the constitutional requirement that sister-state court judgments be accorded “full faith and credit.”  The Alabama court did this by opining that the Georgia trial judge had misconstrued Georgia’s adoption statute when granting the adoption and thus that court did not have “jurisdiction” (legal authority) to grant the adoption.  This is a novel twist on the concept of jurisdiction, and a clear departure from the Supreme Court’s past interpretations of the Full Faith and Credit Clause.

A dissenting Alabama Supreme Court justice argued that the ruling theoretically opened up to challenge any out-of-state adoption when a majority of the Alabama Supreme Court disagreed with how the courts of another state interpreted their adoption statute, leading to uncertainty in an area of the law where courts have traditionally stressed the need for certainty and stability – child custody.

By granting V.L.’s stay application in this case, the Supreme Court is signaling the likelihood that it will grant review and the strong possibility that it would reverse the Alabama Supreme Court’s ruling, to judge by Chief Justice Roberts’ description of their decisional process.

Respondent’s briefs in opposition to review are normally due to the Court a month after a petition is filed (which would be this week), although the Court can grant a motion to extend time.  After all the briefs have been filed, the Court may schedule the petition for consideration at a private conference of the Court.  At the pace this process usually runs, a decision whether to review the case might be expected a few months down the line.  Review would normally have to be granted by mid-January for a case to be argued in this term of the Court.  Unless the justices feel particular urgency to take up this case, it might not be argued until the fall of 2016, with a decision late in 2016 or early in 2017.  The temporary stay reduces the urgency, if it means that V.L.’s temporary visitation order goes back into effect — a conclusion that is not certain until the lower Alabama courts address the scope of the stay.

V.L. is represented by the National Center for Lesbian Rights, cooperating attorneys from Jenner & Block LLP (Washington, D.C.), and local counsel Tracie Owen Vella (Vella & King) and Heather Fann (Boyd, Fernambucq, Dunn & Fann, P.C.), both of Birmingham, Alabama.  The lead Jenner & Block attorney on the case is Paul M. Smith, who argued the appeal in Lawrence v. Texas that resulted in the Supreme Court striking down laws against consensual gay sex in 2003.

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.

Supreme Court Strikes Section 3 of DOMA, Dismisses Proposition 8 Appeal

Posted on: June 28th, 2013 by Art Leonard 1 Comment

[Second draft of history.  My prior posting on this week’s ruling in the DOMA and Prop 8 cases was written shortly after the opinion was release, and was intended as a basis for my journalistic comment to be published in Gay City News that day.  Herewith my more extensive draft, reflecting further thought and containing many more quotes from the Court’s opinion, written two days later.  And amended after a few hours to reflect some startling new developments today.]

On June 26, the last decision day of its October 2012 Term, the United States Supreme Court issued a pair of 5-4 rulings, holding unconstitutional Section 3 of the Defense of Marriage Act (DOMA) and thus requiring the federal government to treat lawfully-contracted same-sex marriages as equal to different-sex marriages for purposes of federal law, and rejecting an appeal by initiative proponents of a federal trial court decision invalidating California Proposition 8 of 2008, setting the stage for the resumption of same-sex marriages in that state.  United States v. Windsor, 2013 WL 3196928; Hollingsworth v. Perry, 2013 WL 3196927. 

Justice Anthony M. Kennedy, Jr., writing for the Court in Windsor, found that Section 3 of DOMA, which required the federal government to deny legal recognition to same-sex marriages validly contracted by the law of the jurisdiction where they took place, violates the 5th Amendment’s guarantee of due process and equal protection.  Chief Justice John R. Roberts, Jr., writing for the Court in Hollingsworth, found that the initiative proponents lacked standing to appeal the trial court’s decision, leaving both the Supreme Court and the 9th Circuit without jurisdiction to rule on the merits of the case.  The Court vacated the 9th Circuit’s decision (which had affirmed the trial court’s broad due process and equality ruling on a narrower equal protection theory), and ordered that the appeal be dismissed, which would logically result in terminating the 9th Circuit’s stay of the trial court’s Order, which had enjoined state officials from enforcing the constitutional amendment enacted by Prop 8. At the request of California Attorney General Kamala Harris, the 9th Circuit panel dissolved the stay on Friday, and the plaintiff couples promptly got married; in San Francisco, Attorney General Harris officiated for the wedding of Kris Perry and Sandy Stier at City Hall; in Los Angeles, outgoing Mayor Antonio R. Villaraigosa officiated at the wedding of Paul Katami and Jeffrey Zarrillo. 

The line-up of justices in Windsor was predictable, with Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan, all appointees of Democratic presidents and sometimes referred to as the Court’s “liberal wing,” signing Kennedy’s opinion.  There were three dissenting opinions.  Chief Justice Roberts, writing for himself; Justice Antonin Scalia, writing for himself and Justice Clarence Thomas, with partial joinder by the Chief; and Justice Samuel Alito, writing for himself with partial joinder by Justice Thomas.  Roberts, Scalia and Thomas agreed on the proposition that the case was not properly before the Court, because the Petitioner, the United States, did not disagree with the substance of the 2nd Circuit’s opinion holding Section 3 unconstitutional.  Thus, in their view, the case did not present the Court with a real “controversy” to resolve between the government and Plaintiff-Respondent Edith Schlain (“Edie”) Windsor, as the government was not asking the Court to do other than affirm the decision below.  Evidently none of these three justices considered that the presence in the case of the Bipartisan Legal Advisory Group of the U.S. House of Representatives (BLAG), which was allowed to intervene to defend Section 3, would cure this jurisdictional fault.  Justice Alito, by contrast, opined that BLAG’s participation as an interested party cured the jurisdictional defect, arguing that BLAG as representative of the House of Representatives (pursuant to a resolution adopted by the House in January 2013, a month after the Court granted the petition for certiorari in this case), had a real interest in the resolution of the case, since the lower court’s opinion had invalidated legislation enacted by the House, thus in effect constricting its authority to pass legislation.  Although Roberts, Scalia and Thomas believed the case was not properly before the Court, this did not stop them from pronouncing on the merits, all agreeing that Section 3 was constitutional.  Justice Alito also opined that Section 3 was constitutional, but on somewhat different grounds.  The Chief Justice signed on to the portion of Scalia’s dissent addressing jurisdiction, and Thomas, who signed on to Scalia’s entire dissent, also signed on to the portion of Alito’s dissent addressing the merits. 

The line-up of justices in Hollingsworth was less predictable, and initially puzzling to many.  The Chief Justice’s opinion was joined by Justices Scalia, Ginsburg, Breyer and Kagan, while Justice Kennedy’s dissent was joined by Justices Thomas, Alito and Sotomayor.  Roberts’ opinion for the Court insisted that in order to have Article III standing, an appellant must show that the lower court’s ruling imposes a personal and tangible harm on him, rejecting the alternative argument that the initiative proponents were suing in a representative capacity on behalf of the state of California.  There were no concurring opinions.  Justice Kennedy argued in dissent that the California Supreme Court’s decision, entitled to binding effect as an authoritative construction of California law, provided a basis for finding that the initiative proponents had standing to sue on behalf of the state as crucial to the “integrity” of the state’s initiative process.  Neither Roberts nor Kennedy said anything in their opinions about the merits of the case.  Indeed, the only member of the Court to give even an oblique discussion to the Prop 8 merits was Justice Alito, in his dissent in Windsor, in which he devoted a lengthy textual footnote to ridiculing the fact finding process of the district court in Hollingsworth.

The DOMA Decision

Justice Kennedy’s decision first took on the jurisdictional issue, acknowledging the unusual posture of the case, in which the Petitioner (the United States represented by the Solicitor General) was asking the Court to affirm the decision below.  This led the court to appoint as amicus curiae Prof. Vicki Jackson of Harvard Law School to argue against jurisdiction, since none of the “parties” would make such an argument.  Ultimately, Kennedy concluded that the United States had standing to appeal the 2nd Circuit’s decision because of the government’s commitment to continue enforcing Section 3 unless and until there was a definitive ruling by the federal courts as to its constitutionality. 

The case began when the Internal Revenue Service, relying on Section 3, refused to allow Edith Windsor to use the marital exemption to avoid paying taxes on her inheritance from her wife, Thea Spyer, who died in 2009 in New York City after New York State courts had begun to recognize same-sex marriages contracted elsewhere.  (Windsor and Spyer married in Canada after having been a couple for over forty years.  New York subsequently adopted marriage equality legislatively in 2011.)  Because of the Obama Administration’s determination that it should continue enforcing Section 3, despite the conclusion by Attorney General Eric Holder and President Barack Obama that the provision was unconstitutional, the government would not comply with the lower courts’ orders to refund Windsor’s $363,000 tax payment on her inheritance.  Thus, something tangible with respect to the parties turns on the Court’s decision in this case; either Windsor gets her refund or she doesn’t.  This was enough, in Kennedy’s view, to satisfy Article III’s standing requirement for the government. For Scalia, it was a “contrivance” intended to manufacture an opportunity for the Court to rule on the constitutionality of Section 3.

Further, Kennedy found, the government had a very legitimate and direct interest in getting a definitive national precedent on Section 3, in light of the 1st Circuit’s previous ruling finding it unconstitutional.  Beyond meeting the requirements of Article III, the case would also have to meet the Court’s jurisprudence on when it might be “prudential” for the Court to abstain from deciding a case.  In the absence of a ruling on Section 3, he pointed out, “The district courts in 94 districts throughout the Nation would be without precedential guidance not only in tax refund suits but also in cases involving the whole of DOMA’s sweep involving over 1,000 federal statutes and a myriad of federal regulations. . .  Rights and privileges of hundreds of thousands of persons would be adversely affected, pending a case in which all prudential concerns about justiciability are absent.  That numerical prediction may not be certain, but it is certain that the cost in judicial resources and expense of litigation for all persons adversely affected would be immense.”  It was clear that Justice Kennedy was persuaded by the practical problem faced by married same-sex couples and the government, were a ruling on the constitutionality of Section 3 to be further delayed.  “In these unusual and urgent circumstances,” he wrote, “the very term ‘prudential’ counsels that it is a proper exercise of the Court’s responsibility to take jurisdiction.”

Scalia decisively rejected these holdings, claiming that one could scour the U.S. Reports and never find a case in which the Court had asserted jurisdiction at the behest of a Petitioner who was asking the Court merely to affirm the holding of the court of appeals.  He observed that “the plaintiff and the Government agree entirely on what should happen in this lawsuit.  They agree that the court below got it right; and they agreed in the court below that the court below that one got it right as well.  What, then are we doing here?”  He characterized as “jaw-dropping” Kennedy’s assertion that the role of the Court was to say “what the law is” in the sense that the famous quotation of Chief Justice John Marshall used by Kennedy was presented in the majority opinion.  Scalia asserted that the Supreme Court operates to decide actual cases, incidentally deciding questions of law as required to determine the rights of the parties in a particular case, and that the Court does not have a general jurisdiction to decide “what the law is” in the absence of an actual controversy between the parties.  He chided Kennedy (an internationalist with a penchant for citing foreign precedents, to Scalia’s continued dismay) for mistaking the function of American courts for those of some other countries, citing as an example a treatise on the German constitutional court.

Kennedy’s approach to the merits of the case strikingly resembled his approach to the two earlier major gay rights opinions he wrote: Romer v. Evans (1996) and Lawrence v. Texas (2003).  In both of those cases, Kennedy eschewed the terminology that legal commentators, some justices, and many lower court judges have adopted to describe the process of judicial review, such as “strict scrutiny,” “heightened scrutiny,” “rational basis” and “suspect classification.”  He was true to form here, writing a decision that never employs this terminology and thus leaves it open to commentators and later courts to try to determine its doctrinal significance. 

Kennedy began his discussion of the merits with an extensive exposition of the traditional role of the states in deciding who could marry, and the traditional deference to state decisions on marriage by the federal government, as part of the allocation of roles in our federal system.  For several pages of his opinion, it appeared that he was ruling that Section 3 violates the allocation of authority between federal and state governments by overriding the determination of particular states that same-sex couples should be entitled to the same “status” and “dignity” as different-sex couples have in their marriages.  “DOMA rejects the long-established precept that the incidents, benefits, and obligations of marriage are uniform for all married couples within each State, though they may vary, subject to constitutional guarantees, from one State to the next.  Despite these considerations,” he continues, “it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance.”  But, Kennedy says, quoting his opinion in Romer, “discriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision.”  In other words, Kennedy will not rest his decision on federalism, but will refer to Congress’s unusual “intrusion” into a traditional state function to justify a more demanding level of judicial review than might otherwise be applied in this case as part of his 5th Amendment analysis.

“The States’ interest in defining and regulating the marital relation, subject to constitutional guarantees, stems from the understanding that marriage is more than a routine classification for purposes of certain statutory benefits,” he explained.  “Private, consensual sexual intimacy between two adult persons of the same sex may not be punished by the State, and it can form ‘but one element in a personal bond that is more enduring,’” quoting his own opinion in Lawrence.  “By its recognition of the validity of same-sex marriages performed in other jurisdictions and then by authorizing same-sex unions and same-sex marriages, New York sought to give further protection and dignity to that bond.”  But, he points out, “DOMA seeks to injure the very class New York seeks to protect.  By doing so it violates basic due process and equal protection principles applicable to the Federal Government.”  Thus, Kennedy cited as the constitutional basis for the ruling both aspects of the Due Process Clause of the 5th Amendment, the substantive due process and the equal protection guarantees that prior Supreme Court decisions have found to inhere in that provision.  “DOMA’s unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage here operates to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages.  This is strong evidence of a law having the purpose and effect of disapproval of that class.  The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.”

Thus, for Kennedy, this case was very closely analogous to Romer, where he found that Colorado voters enacted Amendment 2 to make gay people unequal to everybody else, without any plausible legitimate justification.  In this case, after reviewing the blatantly homophobic legislative history of DOMA’s enactment in 1996, he found a similar fatal flaw.  “DOMA writes inequality into the entire United States Code,” he exclaims.  “DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal.  The principal purpose is to impose inequality, not for other reasons like government efficiency.  Responsibilities, as well as rights, enhance the dignity and integrity of the person.  And DOMA contrives to deprive some couples married under the laws of their State, but not other couples, of both rights and responsibilities.  By creating two contradictory marriage regimes within the same State, DOMA forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect.  By this dynamic DOMA undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage.  The differentiation demeans the couple, whose moral and sexual choices the Constitution protects (citing Lawrence) and whose relationship the State has sought to dignify.”  He also found that it “humiliates tens of thousands of children now being raised by same-sex couples.” 

So the analogy with Romer is very close; Colorado enacted Amendment 2 to make gay people unequal to others without any policy justification, and Congress enacted Section 3 to make gay peoples’ marriages unequal to those of others without any policy justification.  Interestingly, Kennedy omitted to discuss the specific policy justifications that BLAG advanced in its brief and oral argument, a failure that earned the scorn of Justice Scalia in his impassioned dissent. Having found that “the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage,” Kennedy concluded, “This requires the Court to hold, as it now does, that DOMA is unconstitutional as a deprivation of the liberty of the person protected by the 5th Amendment of the Constitution.”  He went on to explain that this is a deprivation both of liberty and of equal protection of the laws, as that concept has been found by the Court to be an essential part of the Due Process guarantee.  Early in the opinion, Kennedy made clear that all his references to “DOMA” refer only to Section 3, as the Court was not asked to rule on Section 2, the provision that purports to free states from any constitutional obligation to recognize same-sex marriages contracted in other states.

Kennedy ended with a final statement that the opinion “and its holding are confined to those lawful marriages,” i.e., “same-sex marriages made lawful by the State.”  Without expressly discussing whether the federal government is obligated to recognize same-sex marriage of individuals who reside in states that do not recognize such marriages, Kennedy’s closing paragraph creates some ambiguity on a very important point, since this decision, by its silence, leaves to the Executive Branch the task of figuring out how to implement federal laws and regulations without clear guidance.  Kennedy’s opinion might be read to restrict the federal obligation to recognizing marriages that are recognized by the state in which a couple resides, but it might alternatively be read to require the federal government to recognize lawfully contracted marriages regardless of where the couple happen to be when the issue arises.  The more expansive reading makes more sense, and seems consistent with the overall rhetorical stance of Kennedy’s opinion, but the history of subsequent reception of %Romer% and Lawrence shows Kennedy’s brand of inscrutable opinion-writing can give rise to contradictory views as to the precise holding of the Court.

Shortly after the opinion was announced, President Obama embraced the more expansive obligation of recognizing lawful marriages regardless of the couples’ residence, but emphasized that he was talking “as a president, not a lawyer,” and that it would be up to the Attorney General, working in concert with other department heads (and perhaps ultimately the federal courts), to sort this out.  Some department heads were quick on the draw.  Defense Secretary Chuck Hagel quickly indicated that the Defense Department would recognize lawful same-sex marriages for purposes of military benefits regardless of residence, and Secretary of Homeland Security Janet Napolitano chimed in similarly as to immigration issues administered by her department, including recognition of married bi-national couples for purposes of residency and citizenship applications.  The Office of Personnel Management for the federal government quickly fell into line, sending a notice to federal agencies on Friday that same-sex spouses of federal employees are now eligible for benefits coverage, retroactive to June 26, and establishing special open enrollment periods to get them signed up for benefits.  But it was less clear how this issue would be resolve for purposes of federal taxes, Social Security, and other programs that have traditionally relied on the place of residence in determining whether a couple is married.  The Internal Revenue Service issued a statement, saying that it would issue formal guidance as soon as possible, but without tipping its hand, setting off lots of speculation without hard data. 

Chief Justice Roberts’ dissenting opinion, after briefly stating agreement with Scalia’s view on jurisdiction, was devoted to attempting to cabin the impact of the decision by striving to characterize it as a “federalism” decision that would be of no relevance to the question whether same-sex couples have a right to marry under the 14th Amendment.  “The Court does not have before it,” he wrote, “and the logic of its opinion does not decide, the distinct question whether the States, in the exercise of their ‘historic and essential authority to define the marital relation,’ may continue to utilize the traditional definition of marriage.”  And it is accurate to say that Kennedy made clear that the Court was not addressing that question.  Nonetheless, virtually ignoring Kennedy’s 5th Amendment analysis and ultimate statement that Section 3 violates the 5th Amendment while expressly eschewing a decision based on federalism, Roberts asserted: “The dominant theme of the majority opinion is that the Federal Government’s intrusion into an area ‘central to state domestic relations law applicable to its residents and citizens’ is sufficiently ‘unusual’ to set off alarm bells.  I think that the majority goes off course, as I have said, but it is undeniable that its judgment is based on federalism.”  If that were the case, of course, the decision might be seen as having little relevance to the question whether states can deny gay people the right to marry.

But Justice Scalia emphatically disagreed, which explains why the Chief did not join that portion of his dissent devoted to the merits.  Characterizing Kennedy’s holding on the merits as “rootless and shifting” in terms of its “justifications,” he said, “For example, the opinion starts with seven full pages about the traditional power of States to define domestic relations – initially fooling many readers, I am sure, into thinking that this is a federalism opinion.”  One of those fooled, evidently, was the Chief Justice, unless, as seems more likely, his puzzlement was more strategic than real.  But, said Scalia, although Kennedy’s opinion continues to refer to federalism from time to time as part of its 5th Amendment analysis, the frequent references to equality and liberty make this a 5th Amendment case. 

However, Scalia complains, “if this is meant to be an equal-protection opinion, it is a confusing one.  The opinion does not resolve and indeed does not even mention what had been the central question in this litigation: whether, under the Equal Protection Clause, laws restricting marriage to a man and a woman are reviewed for more than mere rationality.”  Scalia said that he would “review this classification only for its rationality,” and the Court purports to do that, since it cites Moreno as authority, expressly a rational basis case.  “As nearly as I can tell, the Court agrees with that; its opinion does not apply strict scrutiny, and its central propositions are taken from rational-basis cases like Moreno. But the Court certainly does not apply anything that resembles that deferential framework.”  He then noted how Kennedy slipped back and forth between equality language and liberty language, but “never utters the dread words ‘substantive due process,’ perhaps sensing the disrepute into which that doctrine has fallen.”  (Disrepute in the Scalia household, perhaps, but not among those who disagree with the so-called originalist jurisprudence of Scalia and his acolytes on the Court.)  He also argued that this could not really be a due process case, because of the lack of a history of respect for same-sex marriage, a test that the Court has used in the past for determining whether particular conduct is entitled to protection under the Due Process Clause.  But Scalia was fighting a rear-guard action here, as Kennedy had eschewed the “history and tradition” test when writing for a majority of the Court in Lawrence, saying that longstanding historical regard for a right was not a necessary requirement for Due Process protection.  This is really part of the “living constitution” debate, in which Scalia recently took the position during a public talk that the Constitution is “dead, dead, dead” – not to say that the Constitution is meaningless, but rather to say that, in his view, the essence of a written Constitution is that its meaning is fixed upon its adoption and does not evolve over time.  This view has never won a firm majority on the Court, but Scalia writes as if it is well-established, as it is in his own mind.  Kennedy clearly disagrees, as do the four Democratic appointees and even, from time to time, Chief Justice Roberts.   Only Thomas and, perhaps, Alito, seem to adhere to Scalia’s views on this.

After ridiculing Kennedy’s opinion for never providing a fully-developed analysis of any of the doctrinal bases cited for the Court’s holding, Scalia wrote, “Some might conclude that this loaf could have used a while longer in the oven.  But that would be wrong; it is already overcooked.  The most expert care in preparation cannot redeem a bad recipe.  The sum of all the Court’s nonspecific hand-waving is that this law is invalid (maybe on equal-protection grounds, maybe on substantive-due-process grounds, and perhaps with some amorphous federalism component playing a role) because it is motivated by a ‘bare . . . desire to harm’ couples in same-sex marriages.”  Scalia then went on to hotly dispute – as he did in his Romer and Lawrence dissents – that antigay animosity was behind the challenged law, rejecting the idea that anti-gay legislation is necessarily the result of bigotry.  He suggested that Kennedy failed to engage the arguments put forth by BLAG to defend Section 3 “because it is harder to maintain the illusion of the Act’s supporters as unhinged members of a wild-eyed lynch mob when one first describes their views as they see them,” and accused the Court of labeling the proponents of DOMA as “enemies of the human race.” 

Also, as is his wont, Scalia predicted that the ultimate result of the opinion would be to decide the issues not presented to the Court, but beyond making predictions, and in a manner perhaps without precedent in the annals of the Supreme Court, Scalia inserted in his dissent several extended quotes from Kennedy’s opinion, edited to make the case that state laws denying same-sex couples the right to marry are unconstitutional.  Scalia provided a veritable roadmap for lower courts to use in striking down state anti-marriage amendments!  “By formally declaring anyone opposed to same-sex marriage an enemy of human decency,” he insisted, “the majority arms well every challenger to a state law restricting marriage to its traditional definition.”  Scalia concluded that the Court had improperly ventured into the political sphere, which is where he insisted that the issue of same-sex marriage should be resolved.

Alito’s dissent on the merits is more tempered than Scalia’s, adverting to the theories advocated by Prof. Robert George of Princeton University, a prominent foe of same-sex marriage who has argued that the traditional definition of marriage focused on its procreative potential and the complementarity of the two sexes, is an essential component of western civilization, with which we tamper at our peril.  After appointing out the different views as to the essential character of marriage, contrasting the traditional view of its procreative purpose and the modern view embraced by popular culture, Alito insisted that the Constitution takes no position between these two views and mandates neither.  Thus, the determination which view should be embraced by society is up to the polity speaking through the democratic process.  He argued that the Court should not intervene in this process.  “In our system of government,” he wrote, “ultimate sovereignty rests with the people, and the people have the right to control their own destiny.  Any change on a question so fundamental should be made by the people through their elected officials.”  And, “By asking the Court to strike down DOMA as not satisfying some form of heightened scrutiny, Windsor and the United States are really seeking to have the Court resolve a debate between two competing views of marriage. . .  The Constitution does not codify either of these views of marriage (although I suspect it would have been hard at the time of the adoption of the Constitution or the Fifth Amendment to find Americans who did not take the traditional view for granted).  The silence of the Constitution on this question should be enough to end the matter as far as the judiciary is concerned. . .  I would not presume to enshrine either vision of marriage in our constitutional jurisprudence.”

As noted above, Alito devoted a lengthy textual footnote, rather out of the blue, to deprecating the conduct of the Prop 8 trial, presenting this as an illustration of why, in his view, it is inappropriate for the courts to take on the same-sex marriage question.  “At times, the trial reached the heights of parody,” he wrote, “as when the trial judge questioned his ability to take into account the views of great thinkers of the past because they were unavailable to testify in person in his courtroom.”  He deprecated the contention in academic amicus briefs filed in Hollingsworth “that we are bound to accept the trial judge’s findings – including those on major philosophical questions and predictions about the future – unless they are ‘clearly erroneous.’  Only an arrogant legal culture that has lost all appreciation of its own limitations could take such a suggestion seriously,” he harrumphed.  Take that, you arrogant professors of constitutional law and civil procedure!  One suspects that Alito, who joined the dissent in Hollingsworth, was disappointed that he could not embody these comments in a majority or concurring opinion, and was eager to make these observations somewhere, so here they are in the other case.

The Proposition 8 Decision

The majority and dissenting opinions in Hollingsworth are shorter and need less discussion, since there was no comment in either concerning the merits of the 14th Amendment claim that Proposition 8, which inserted into the California Constitution an amendment providing that only different-sex marriages would be “valid or recognized in California,” violated the equal protection rights of same-sex couples. 

As noted above, Chief Justice Roberts, writing for the Court, accepted the contention that because the initiative proponents could not satisfy the traditional Article III standing test of having a tangible, personal interest in the outcome of the case (i.e., they were not asking the Court for a remedy specific to them, as Proposition 8 does not directly affect any of their own rights; presuming none of the proponents has any interest in marring a person of the same sex), they could not appeal the trial court’s decision.  If this means that sometimes state officials may rid themselves of noxious initiative products through the expedient of failing to defend them in the courts and then refusing to appeal the resulting decisions striking them down, then so be it.  That’s the way the system works, according to Roberts, because federal courts are only authorized to decide real cases between real parties.  “We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to,” concluded Roberts. “We decline to do so for the first time here.” 

At the same time, Roberts made clear, the trial court did have jurisdiction, despite the failure of the named defendants to provide a substantive defense, and thus there is no jurisdictional fault identified by the Supreme Court with District Judge Vaughn Walker’s ruling in the case.  Justice Kennedy, in dissent, argued that the alternative standing theory was adequate to make this appeal proper, resting on the California Supreme Court’s admitted role as the authoritative exponent of California law.  That didn’t impress Chief Justice Roberts.  Since federal standing is a question of federal law, the California Supreme Court’s ruling was not binding on the federal courts.  “The judgment of the Ninth Circuit is vacated,” he wrote, “and the case is remanded with instructions to dismiss the appeal for lack of jurisdiction.”  That should mean, in the normal course of events, that the 9th Circuit will lift its stay of Judge Walker’s Order, shifting the focus of attention to the implementation of that Order.

There was some comment about the “odd” line-up of the justices in this 5-4 ruling.  The Chief Justice was joined by Justice Scalia and three members of the “liberal wing” of the Court, Justices Ginsburg, Breyer, and Kagan.  Justice Kennedy’s dissent was joined by Justices Thomas and Alito and the remaining member of the “liberal” wing, Justice Sotomayor.  Thus, three justices who voted to strike down Section 3 of DOMA, and presumably would find Prop 8 to be unconstitutional, agreed with the Chief Justice that there was no jurisdiction to rule on the merits.  As to the dissenters, Justice Alito had found jurisdiction in Windsor and was clearly itching to uphold Proposition 8.  Justice Sotomayor, to judge by her general jurisprudential stance and her questions and comments at oral argument, would probably have voted to affirm the lower courts and strike down Prop 8 were she able to reach the issue.  Justice Thomas would most likely have agreed with Alito as to the merits.  Justice Kennedy’s views are more difficult to pin down, but one suspects that he would not be arguing so fiercely in favor of jurisdiction in this case if he did not have a strong view how it should be decided.  Perhaps reading the tea-leaves of his Windsor opinion and taking Scalia’s dissent at face value, Kennedy was also poised to strike down Prop 8.  So, the question occurs, if both Sotomayor and Kennedy were poised to strike down Prop 8, why did the other three “liberals” side with Roberts to dismiss the case? 

For months, commentators have been struggling with Justice Ginsburg’s views on Roe v. Wade and what they might portend for her position in the same-sex marriage cases.  Ginsburg has frequently stated that Roe was a premature and unduly expansive ruling, in light of the evolving political views on abortion rights at the time it was decided.  She has suggested that had the Court written a narrower decision, leaving the future scope of abortion rights to the legislative process, abortion might not have become the hot-button political issue that it quickly became, with all the divisive effects flowing from that development.  One speculates that Breyer and Kagan joined the Chief Justice in dismissing the appeal, having concluded that a decision on the merits might not strike down Prop 8 because Ginsburg might not supply the necessary fifth vote.  It may even be that Ginsburg joined out of the pragmatic view that a dismissal would result in allowing the district court’s opinion to go into effect and same-sex marriage to resume in California.  Thus, Prop 8 would be vanquished by default without the Supreme Court having to go on record as to whether same-sex couples have a right to marry under the 14th Amendment.  This might seem to be the most prudent way for the Court to deal with an issue as to which there remains much public controversy.  The art of avoiding merits decisions while obtaining desired results is a subtle weapon in the judge’s arsenal, perhaps cannily deployed here by Justice Ginsburg.  In this light, Justice Scalia’s concurrence with the Chief might seem odd, given his ardent opposition to same-sex marriage, but on the other hand his concurrence seems consistent with his impassioned dissent on jurisdiction in Windsor, in which the Chief concurred.

So, the bottom line on the Hollingsworth non-decision is that the Court, in effect, decided to let the district court opinion be the final, unreviewable word on the narrow question of whether Prop 8 was unconstitutional, without creating any precedent binding on other federal courts, since only appellate rulings create binding precedents.

But where did that leave the case after the stay was lifted and Judge Walker’s Orderwent into effect?  As to that, there was not complete agreement among the “parties” – if that term is loosely deployed to take in the original plaintiffs, the named defendants, and the intervenors whose standing to appeal had been definitively rejected by the Supreme Court.  The plaintiffs argued all along that if the appeal was dismissed, Judge Walker’s Order required the state of California to make marriage licenses available to same-sex couples and to recognize those marriages as fully equal to the marriages of different-sex couples throughout the state, not limited to the two counties (Alameda and Los Angeles) whose clerks were named defendants, and certainly not limited to the two plaintiff couples who brought the case.  In its 2009 decision finding that Prop 8 had been duly enacted, the California Supreme Court made clear that same-sex couples who married prior to the passage of Prop 8 remained married, and that their marriages were entitled to equal treatment under California law.  Indeed, that Court also ruled that pursuant to its prior decision on the merits in the marriage cases, domestic partnerships in California would be entitled to the same status as marriages under state law in order to satisfy the court’s equal protection and due process holdings.  It became clear after the Supreme Court’s decision was announced that Governor Jerry Brown (who was an original named defendant as attorney general) and Attorney General Kamala Harris agreed with that view.   Comments by the justices during the oral argument hinted that dismissal on grounds of jurisdiction was a likely outcome, and Governor Brown, anticipating the ruling, asked the attorney general for an analysis of “the scope of the district court’s injunction.”  She prepared a letter, which is dated June 3, advising the governor that “the injunction would apply statewide to all 58 counties, and effectively reinstate the ruling of the California Supreme Court in In re Marriage Cases (2008), 43 Cal.4th 757,857.” Harris concluded that the Department of Public Health could instruct all county officials to resume issuing marriage licenses and recording the subsequent marriages upon the lifting of the stay.  The governor accepted this advice, and hours after the Supreme Court’s opinion was announced, the Department sent instructions to all County Clerks and County Recorders accordingly.  As soon as the stay was lifted, the plaintiffs were alerted, rushed to get their marriage licenses, and were promptly married.  Some clerks offices planned to stay open late Friday to process license applications from same-sex couples.

The initiative proponents had a different view, not unexpectedly, and Andrew Pugno, their California counsel, argued that a trial court ruling is not binding beyond the immediate parties.  He contended that the only couples entitled to the benefit of Walker’s Order were the plaintiffs. This was not brought as a class action, he contended, and all the clerks in the state were not joined as co-defendants.  He also argued that it was established in California law that only appellate rulings have statewide effect.  Whether that would be true concerning a federal district court ruling as opposed to a California trial court ruling seems questionable, in light of the Supremacy Clause of the U.S. Constitution.  If Prop 8 is unconstitutional as a basis for denying marriage licenses to the plaintiffs, surely it is unconstitutional if used to deny marriage licenses to any other similarly-situated same-sex couple anywhere in California, and principles of res judicata should prevent the need to re-litigate the matter in each county.  Pugno threatened to take some sort of legal action to block implementation of the Order beyond the immediate parties, and criticized the lifting of the stay by the 9th Circuit panel and subsequent performance of marriages as lawless and inappropriately rushed.

As to timing, the Supreme Court’s procedures give disappointed parties up to 25 days to file motions for rehearing, after which the Court sends its mandate out to the lower court, in this case ordering dismissal of the appeal.  It seemed unlikely that the Court would grant rehearing in either case, as that would require the disappointed party to persuade a member of the majority to change his or her views.  The 9th Circuit Clerk filed an entry acknowledging receipt of the Court’s decision promptly after it was announced, a welcome artifact of our modern age of near-instantaneous electronic accessibility of high court rulings, and responded promptly to Attorney General Harris’s request to the lift the stay.  Perhaps facts on the ground will successfully outflank any attempt by the proponents to interfere with the speedy implementation of the Order.

Also on Friday, the 28th, came what is probably the first judicial reliance on U.S. v. Windsor, as a federal district judge in Michigan cited the case in ruling on pending pretrial motions in an action challenging the Attorney General’s position that an anti-marriage amendment prevents the implementation of a recently enacted domestic partnership law.  More details on that when I’ve had an opportunity to read the opinion.

Justice Ginsburg Calls for New Civil Rights Restoration Act

Posted on: June 24th, 2013 by Art Leonard No Comments

Dissenting from two 5-4 decisions by the Supreme Court in employment discrimination cases issued on June 24, Justice Ruth Bader Ginsburg called for a new Civil Rights Restoration Act, referring to a 1991 statute that overruled or modified several Supreme Court decisions on federal employment discrimination law.  In University of Texas Southwestern Medical Center v. Nassar, the Court interpreted Title VII’s anti-retaliation provision narrowly to apply only to cases where the plaintiff showed that the employer’s retaliatory conduct was motivated solely by the employee’s claim of discrimination.  In Vance v. Ball State University, the Court ruled that an employer could not be held vicariously liable for workplace harassment unless the harasser is a “supervisor” who is “empowered by the employer to take tangible employment actions against the victim” of the harassment.

In both cases, the Court was resolving a diversity of views about the correct interpretation of Title VII by the lower federal courts.  The Nassar ruling on retaliation reversed a decision by the U.S. Court of Appeals for the 5th Circuit, while the Vance ruling affirmed a decision by the 7th Circuit Court of Appeals, which had disagreed with the 2nd and 4th Circuits and the EEOC as to when the vicarious liability rule governing harassment by supervisors should be applied.  In both cases, the Court’s 5-4 majority came down on the side favored by employers, cutting back on the protection Title VII provides to workers against workplace discrimination.  Thus Justice Ginsburg’s call for corrective action.

Both majority opinions reach their results by avoiding the realities of the workplace, as dissenting opinions by Ginsburg, joined by Justice Breyer, Sotomayor and Kagan, point out.

As to the retalation case, the Court seized upon the complexities of a statute amended in response to prior Supreme Court decisions with which Congress disagreed.  The Court had ruled, in a prior case, that when an employee proves that his or her race or color, religion, national origin or sex was a motivating factor for adverse action by the employer, an employer could defeat the discrimination claim by showing that it would have taken the same action for a non-discriminatory reason.  This is the so-called “mixed motive” case.  Congress disagreed with this result, amending the statute in 1991 to provide that as long as an employee showed that one of the prohibited grounds for discrimination was a factor in the employer’s action, the statute was violated.  Congress also provided, however, that an employer’s proof of a non-discriminatory motive could result in limiting the remedy imposed by the court, eliminating damages and reinstatement orders in such situations. 

The EEOC and some lower federal courts took the view that the 1991 amendments applied to all discrimination claims under Title VII, whether they involved status discrimination (discrimination because of an individual race or color, religion, national origin or sex) or discrimination against an employee who had opposed unlawful discrimination or filed a discriminate claim against the employer.  However, in this case, the Court seized upon the particular wording of the 1991 amendment to hold that it applied only to status discrimination claims.  The Court pointed out that Title VII has separate provisions dealing with status discrimination and retaliation, and that Congress appeared (at least to the Court) to have been concerned only with the former when it amended the statute in 1991.  The Court also drew an analogy to its treatment of the Age Discrimination in Employment Act, a separate statute, which the Court has construed to impose liability on employers only when an employee proves that discrimination was solely because of the employee’s age.  The Court had reached that result by observing that the 1991 amendment did not, by its terms, apply to the ADEA.  The Court also suggested that adopting the mixed motivation standard of the 1991 amendment for retaliation claims would open the floodgates to retaliation claims by making them too easy for plaintiffs to win.

Responding to Justice Kennedy’s opinion for the Court, Justice Ginsburg charges that “the court appears drive by a zeal to reduce the number of retaliation claims filed against employers,” although, she asserted, “Congress had no such goal in mind” when it adopted the 1991 amendment.  “Today’s misguided judgment, along with the judgment in Vance v. Ball State University, should prompt yet another Civil Rights Restoration Act.”

In Vance, where Justice Samuel Alito wrote for the 5-4 majority, the Court dealt with the ever-contentious issue of employer liability for workplace harassment of one employee by another.  In earlier cases, the Court had ruled that when an employee is harassed by a supervisor because of the employee’s sex, the employer could be held “vicariously liable” for such harassment because the supervisor is acting as the employer’s agent, empowered by the employer to make decisions affecting the employment of the victim.  But the Court had left it to subsequent cases to work out exactly how “supervisor” should be defined for this purpose.

Many lower courts, and the Equal Empoyment Opportunity Commission, have taken the view that any employee who has authority or power over another employee, such as to direct where, when or how that employee does their work, should be deemed a supervisor for this purpose, but the majority of the Court disagreed, holding that only a worker who can take “tangible” actions against an employee, such as actions affecting their pay or benefits, discharge or demotion or the like, would be deemed a supervisor for whose harassing conduct an employee could be held “vicariously liable.”  (In the absence of vicarious liability, an employee suffering harassment would have to show that the employer was negligent in order to hold the employer liable for harassment by a co-worker.  Even in cases of potential vicarious liability, if an employee subject to harassment does not also suffer “tangible” adverse consequences, an employer can escape liability by showing that it has a policy against harassment and a workplace grievance system to address complaints that was not properly invoked by the employer.)

Justice Alito said that the prior caselaw contemplated a clear distinction between supervisors and other employees, and a definition based on authority to make such decisions concern tangible factors provided the basis for such a clear distinction.  He criticized the approach taken by the EEOC and some lower courts as a “nebulous definition” that was not easy to apply, noted that the term is not expressly defined by Congress in Title VII, and thus concludes that it should be construed in light of the elaborate framework the Court had adopted in prior cases to determine whether it was appropriate to hold the employer liable for harassing conduct by employees.  In both of the cases, it was clear that the harassing employees were “supervisors” as the majority of the Court defines the term in this case: individuals having authority regarding “tangible employment actions.”   The Court found such a characterization to be “implicit in the characteristics of the framework that we adopted” in those cases, that the ability to impose “direct economic harm” was the “defining characteristic of a supervisor, not simply a characteristic of a subset of an ill-defined class of employees who qualify as supervisors.”  Justice Alito commended the relative ease of determining supervisory status under this test, pointing out that “the question of supervisor status, when contested, can very often be resolved as a matter of law before trial.”  In other words, this decision is intended, like many prior decisions of the Court, to enhance the ability of federal trial judges to dispose of employment discrimination cases without a trial by deciding, as a matter of law, that the employer cannot be held liable because the harasser was not a supervisor and the plaintiff introduced no substantial evidence of employer negligence.

Justice Ginsburg sharply responded:  “The Court today strikes from the supervisory category employees who control the day-to-day schedules and assignments of others, confining the category to those formally empowered to take tangible employment actions.  The limitation the court decrees diminishes the force” of its prior decisions on employer liability for harassment by supervisors, “ignores the conditions under which members of the work force labor, and disserves the objective of Title VII to prevent discrimination from infecting the Nation’s workplaces.”  Ginsburg points out that low-level supervisory personnel can, nonetheless, make a subordinate’s life in the workplace very uncomfortable, because they are empowered by the employer to make decisions that affect employees in their day-to-day work. 

The Court’s decision, says Ginsburg, “is blind to the realities of the workplace, and it discounts the guidance of the EEOC,” which had taken a broader view under which any worker to whom the employer has given authority “to controlt he conditions under which subordinates do their daily work” is a supervisor for purposes of imputing liability for harassment.  Ginsburg argued that prior decisions by the court had reached such conclusions, including — contrary to Justice Alito’s assertions — one of the very cases in which the  Court had established the framework for analyzing employer liability.  Ginsburg also pointed out that the narrow definition of supervisor adopted by the Court in this case will result in employers having a “diminished incentive to train those who control their subordinates’ work activites and schedules, i.e., the supervisors who actually interact with employees.”    She argued that the Court majority is “insistent on constructing artifical categories where context should be key,” and charged that it “proceeds on an immoderate and unrestrained course to corral Title VII.” 

As in her dissent in the other case, Ginsburg points out that Congress has repeatedly had to step in and amend the statute to restore the protection against discrimination that Congress intended to provide for workers.  “The ball is once again in Congress’s court to correct the error into which this Court has fallen,” she concludes, “and to restore the robust protections against workplace harassment the Court weakens today.” 

 

 

Supreme Court Argument on Proposition 8 Strongly Suggests There is No Majority to Rule on the Merits

Posted on: March 26th, 2013 by Art Leonard No Comments

On the tenth anniversary of its oral argument in Lawrence v. Texas, the historic 2003 ruling striking down laws against consensual gay sex, the U.S. Supreme Court took up the contentious issue of same-sex marriage on March 26, 2013, having granted a petition by four of the proponents of Proposition 8 to review the lower courts’ rulings that the California anti-same-sex marriage constitutional amendment (adopted by voters in 2008) violates the  Equal Protection Clause of the 14th Amendment.  After reviewing the written transcript and audio recording of the argument, this observer is persuaded that, at least as of today, there is no majority on the Court to rule one way or the other on the merits of this case.  But it is possible that the oral argument tomorrow on the constitutionality of Section 3 of the federal Defense of Marriage Act may cast further light on what will happen when opinions are announced (most likely in June),  since many of the underlying arguments are the same.

Charles Cooper appeared for the Petitioners, Theodore Olson for the Respondents (plaintiffs, two same-sex couples who brought the case in federal district court in San Francisco after having been denied marriage licenses because of Proposition 8), and Donald Verrilli, Jr., Solicitor General of the United States, appeared as “amicus curiae” (friend of the Court) to present the federal government’s position in support of the Respondents.

The Court had allocated an hour for this argument, but eight of the Justices were so fully engaged in questioning and responding to the lawyers’ arguments that they allowed the session to run for about an hour and a half, the extra time being attributable mainly to the question that the Court added when it granted the petition to review this case: Whether the Petitioners (who had intervened as defendants in the district court and then appealed the district court’s ruling to the 9th Circuit and ultimately to the Supreme Court) had “standing” as required by the Court’s precedents. 

The Court’s addition of this question signaled that at least four of the Justices thought it was an important question, and the arguments back and forth this morning reinforced that point.   Chief Justice Roberts interrupted each of the lawyers at the outset of their presentations, cutting off their attempts to argue the merits by asking them first to address the standing issue, and all the Justices participated in the questioning except Justice Clarence Thomas, who never asks questions during oral argument and, to judge by the transcript and audio recording, said not a word during this one.  Roberts didn’t redirect Cooper back to the merits until he had used up a substantial portion of his argument time on standing, and he also allowed the standing issue to eat up a substantial portion of Ted Olson’s time.

The Petitioners’ argument on standing is simple: The California Supreme Court, in an advisory opinion requested by the 9th Circuit, held as a matter of California law that initiative proponents have standing to defend their initiative if the state officials who would normally provide such a defense refuse to do so.  Their standing is not based on the “individualized injury” that the Supreme Court normally requires, but instead on their designation as representatives of the state’s interest.  This reasoning struck the 9th Circuit as sufficient, but some of the Justices had problems with it.  Olson, arguing for Respondents, harped on the point that initiative proponents are not officers of the state, not accountable to the state, not subject to the control of the state, capable of running up large legal fees in the litigation, and lacking the fiduciary obligation of public officials to act in the interest of the public. (For example, they made arguments on the merits that were contrary to settled public policy of the state of California.)  Solicitor General Verrilli tried to avoid taking a position on standing, pointing out that the federal government had not taken a position in its brief, but when pushed to take a position opined that it was a “close question” but that “the better conclusion is that there’s not Article III standing.”  However, some Justices seemed sympathetic to Cooper’s argument that finding no standing for initiative proponents would leave state officials who disliked a popular initiative with the power to veto it by refusing to defend it in the courts.  This argument had impressed the 9th Circuit as well.

It was difficult to get a read on whether this will be the basis for the Court’s ruling.  If the Court finds that Petitioners lacked standing to appeal the ruling, then the 9th Circuit’s decision would be vacated and the district court’s decision would be left as essentially an unappealed trial court decision, of no controlling precedential value but binding on the parties to the case.  Arguably, that would mean that California would resume providing marriage licenses to same-sex couples, since District Judge Walker’s final order in the case would go into effect, but perhaps a county clerk who did not want to comply could initiate new litigation in a different federal court.  Judge Walker’s order holds Proposition 8 unconstitutional and directs the named defendants, state officials, to treat it as a nullity.  This would revive the California Supreme Court’s 2008 ruling in In re Marriage Cases, to the extent that its holding was impaired by Proposition 8.

The standing issue provides a fallback position for the Supreme Court in case it decides to avoid ruling on the merits, and from the questioning this morning, it seems that it may come in handy for that purpose, as it was hard to tell based on the statements by the Justices whether there could be a five-member majority to rule that same-sex couples are entitled to marry by virtue of the 14th Amendment’s Equal Protection Clause.  It seemed, from comments that he made at various points during the argument, that Justice Anthony Kennedy, generally seen as the ‘swing voter’ on this Court, sometimes lining up with the other Republican appointees for conservative decisions, sometimes lining up with the Democratic appointees for more moderate opinions, is having the most difficult time making up his mind in this case.

Justice Kennedy mused at one point that perhaps the Court should not have granted the petition to review the case.  His questions and comments certainly revealed a sympathy with the Respondents’ claim to the right to marry, particularly emphasizing the potential harms to the thousands of children being raised by same-sex couples in California whose parents are deprived of that right by Proposition 8.  At the same time, he seemed bothered by the idea that a ruling on the merits striking down Proposition 8 would immediately put a stop to the unfolding political debate and impose same-sex marriage throughout the country.  He picked up on Cooper’s point that same-sex marriage is a new phenomenon, that its long-term impact on society is as yet unknown, and that a California voter might rationally conclude that Proposition 8 should be passed to avoid potential harms and to allow the “experiment” of same-sex marriage to play out in other jurisdictions.  This argument might pull him over to the conservatives who seem prepared to rule that there is no constitutional right for same-sex couples to marry, but his reluctance to adopt that extreme view, which would be inconsistent with the underlying rationale of his opinion for the Court in Lawrence v. Texas, could make a dismissal without an opinion on the merits his most desired escape hatch. 

This would be a neat solution that would avoid creating a national precedent while restoring the right to marry in California. The Court could dismiss the writ of certiorari as “improvidently granted,” a device it has used in the past to avoid ruling on a contentious issue, and one outcome in this case that seems to have eluded many commentators (including this writer) who have enumerated the potential rulings in recent weeks.

There is a precedent for this in the context of gay rights.  In 1980, the New York Court of Appeals ruled in People v. Onofre that the New York sodomy law was unconstitutional, invoking the due process clause of the 14th Amendment of the federal constitution, and the Supreme Court denied a petition by the local prosecutor to review the case.  (New York’s attorney general had not defended the statute in the Court of Appeals and did not support the petition for review.)  In 1983, the Court of Appeals ruled in People v. Uplinger that once the sodomy law had been invalidated, a statute penalizing soliciting for the purpose of engaging in sodomy would also be invalid, as a “companion statute to the consensual sodomy law” that suffered from the same constitutional flaws.  The local prosecutor sought Supreme Court review, and this time the Court granted the petition and heard oral argument.  It became clear at oral argument, however, that ruling on the merits would necessarily require a judgment on the constitutionality of sodomy laws as well, and the Court subsequently announced that it was dismissing the writ of certiorari as having been “improvidently granted.”   (A few years later, however, the Court agreed to review a decision in which the 11th Circuit held that the Georgia sodomy law might violate the 14th Amendment, Bowers v. Hardwick, with unfortunate results.)  That left the New York Court of Appeals ruling standing as if the writ of certiorari had originally been denied.  Were the Supreme Court to follow this route in the Proposition 8 case, that would leave the 9th Circuit’s decision standing, and the Supreme Court would have avoided a ruling on the merits either way.

A dismissal of the writ would be the equivalent of a denial of review, which, according to the Court’s practice, should not be construed as either approving or disapproving the holding or reasoning of the lower court.  Thus, the Court would not be expressing a view as to the correctness of the 9th Circuit’s rationale for striking down Proposition 8, and no national precedent would be set.

One of the important issues in the case is whether the Court, if ruling on the merits, should subject Proposition 8 to “heightened scrutiny,” under which the defenders of Proposition 8 would lose if they could not persuade the Court that the measure substantially advanced an important state interest.  As to that, Justice Sonya Sotomayor asked Cooper, counsel for the Petitioners, “Outside of the marriage context, can you think of any other rational basis, reason, for a State using sexual orientation as a factor in denying homosexuals benefits or imposing burdens on them?  Is there any other rational decision-making that the Government could make?  Denying them a job, not granting them benefits of some sort, any other decision?”  Cooper’s response, a major concession, was, “Your Honor, I cannot.  I do not have any — anything to offer you in that regard.”  This might suggest that heightened scrutiny is the appropriate level of review, or it might just be construed as a concession that, apart from the marriage context, there is no rational basis for the government to discriminate against gay people.

Cooper’s rejoinder, however, was to argue that same-sex couples and different-sex couples are not “similarly situated” with respect to what he argues is one of the state’s important interests in marriage — providing a vehicle for responsible procreation and child-rearing — and thus that Justice Sotomayor’s question is not relevant to this case.  Cooper quickly recovered from his “concession” and argued that sexual orientation should not be deemed a suspect classification as “the class itself is quite amorphous” and “defies consistent definition,” asserting that expert witnesses for the plaintiffs at trial were “quite vivid” on this point.

During Ted Olson’s argument on the merits, Justice Scalia signaled where he (and most likely Justices Alito and Thomas) would come down on the merits, by asking Olson when the exclusion of same-sex couples from marriage became unconstitutional?  Was it unconstitutional in 1791 when the Bill of Rights was adopted?  In 1868 when the 14th Amendment went into effect?  Scalia’s general position is that constitutional provisions are limited to the meaning they had when they were adopted, and thus a claim for same-sex marriage cannot be valid today under the 14th Amendment if it would not have been deemed valid when the amendment was adopted.  Olson countered with well-worn examples.  When did public school segregation become unconstitutional?  The Congress that approved the 14th Amendment and sent it to the states for ratification maintained a segregated school system in the District of Columbia, and the Supreme Court approved the doctrine of “separate but equal” in the 1890s.  Unless Scalia is ready to repudiate Brown v. Board of Education (1954), his historicism is blatantly inconsistent, but that doesn’t give him pause.  He hectored Olson for a few minutes on Olson’s inability to pinpoint the moment when same-sex marriage acquired the status of a constitutional right.  Luckily, Scalia’s view on this does not command a majority on the Court, just the loyalty of Justices Thomas and, usually, Alito.   Chief Justice John Roberts has not been a consistent follower of that view, and Justice Kennedy clearly repudiated it in Lawrence v. Texas.   So the case won’t be decided on that basis.

None of the Justices seemed enamored with Solicitor General Verrilli’s argument that the Court should adopt the 9th Circuit’s rationale and hold that Proposition 8 was unconstitutional because California had already adopted family law policies that undercut all of the Petititoner’s arguments in its support.  This is the so-called 8-state solution, under which states that have accorded same-sex couples the legal rights of marriage under the guise of civil unions or domestic partnerships would be held to lack a rational basis of withholding the status of marriage.  Justice Stephen Breyer and Chief Justice Roberts shot holes through this argument, and all of the Justices who commented on it saw it as odd that states that had not accorded any rights to same-sex couples would be left alone while states who had granted such rights would be held to violate the constitution by not going “all the way.”  Nobody seemed to favor this approach.

Chief Justice Roberts did not tip his hand on the merits during the questioning, and the Democratic appointees appeared from their questions and comments to understand and endorse the argument that excluding same-sex couples from marriage might be insupportable as a matter of Equal Protection, so as all commentators had suggested in predicting the outcome, it may come down to Justice Kennedy. What the commentators hadn’t anticipated was Kennedy’s suggestion that the Court should not have granted review, creating the possibility that the 9th Circuit’s decision would stand without being endorsed or rejected by the Court. 

This would cabin the result to California in the short term, but would also leave unquestioned by the Supreme Court the 9th Circuit’s view that the arguments in support of Proposition 8 are not substantial enough to justify rescinding the right to marry. This, in turn, would set up the likelihood that the 9th Circuit might reverse the trial court decisions from Nevada and Hawaii, now pending on review, concerning the right of same-sex couples to marry in those states.  In both of those cases, district judges granted judgment against the plaintiffs.  Unleashed by a dismissal of the Prop 8 appeal, the 9th Circuit might reverse those rulings, quickly setting up a potential for two new Supreme Court cases in which the petitioners (the states of Nevada and Hawaii) would undoubtedly have standing.  Thus, a dismissal of this appeal without a ruling on the merits might lead to one or two new same-sex marriage cases on the Court’s doorstep within another year or two.

Supreme Court Will Hear Dispute of HIV Prevention Funding Requirements

Posted on: January 15th, 2013 by Art Leonard No Comments

The Supreme Court announced that it will review the 2nd Circuit Court of Appeals decision in Alliance for an Open Society International, Inc. v. U.S. Agency for International Development, 651 F.3d 218 (2011), en banc review denied, 678 F.3d 127 (2012), which held that the federal government probably violated the 1st Amendment rights of the plaintiff agencies by conditioning their receipt of funding under the U.S. Leadership Against HIV/AIDS, Tuberculosis and Malaria Act of 2003 on the agencies having a policy expressly opposing prostitution and sex trafficking and taking no positions or actions inconsistent with such a policy. In so holding, the 2nd Circuit panel, by a vote of 2-1, upheld a preliminary injunction that the district court had issued against enforcement of the policy pending a full trial on the merits. The ruling arguably conflicts with a D.C. Circuit ruling rejecting a 1st Amendment challenge to the policy, DKT Int’l, Inc. v. U.S.A.I.D., 477 F.3d 758 (D.C. Cir. 2007). The circuit split on the constitutionality of a federal statute has now captured the Supreme Court’s attention. U.S.A.I.D. v. Alliance for an Open Society, No. 12-10, 2013 WL 135533 (cert. granted, Jan. 11, 2013).

At the heart of the case is the complicated doctrine of “unconstitutional conditions” that the Supreme Court has developed through a series of cases involving restrictions placed by Congress on the recipients of federal funds. Perhaps the most notorious of these cases is Rust v. Sullivan, 500 U.S. 173 (1991), which rejected a constitutional challenge to the requirement that federal family planning money not be “used in programs where abortion is a method of family planning.” Regulations issued under the relevant statute prohibited projects receiving federal funds from providing abortion counseling or referrals, or engaging in any activities that would encourage, promote or advocate abortion as a method of family planning. The Supreme Court rejected the argument that this was unconstitutionally compelled speech, pointing out that the law authorized federal funding recipients to establish separate organizations that would not receive federal money and could undertake abortion-related activities, and that funding recipients were not required to articulate an anti-abortion message, but merely to remain silent about abortion if they wanted federal money. The Court’s explanation was that Congress could dictate the content of speech that it was paying for as part of a federally-funded family planning program.

The majority of the 2nd Circuit panel, Circuit Judges Barrington Parker and Rosemary Pooler, found this holding, and other similar rulings by the Supreme Court and other 2nd Circuit panels, to be distinguishable from the HIV restriction case, primarily because the challenged statute goes beyond requiring silence and neutrality, instead conditioning federal money on the recipient agency articulating the government’s position as if it was the agency’s own position. Dissenting Circuit Judge Chester Straub rejected this distinction, arguing that this case was controlled by Rust and similar cases, and that the government was entitled to control the speech of HIV-prevention organizations that operated with federal financial assistance.

When the government unsuccessfully sought en banc review of the panel ruling, two other members of the circuit court joined with Judge Straub in dissenting from the denial of en banc review, arguing, among other things, that the split with the D.C. Circuit signified the importance of the issue, meriting reconsideration by the full circuit bench.

When the case was pending before the district court, the government argued that the plaintiffs did not have standing to seek a constitutional ruling because they had failed to take an alternative course offered by regulations to set up separate affiliated organizations that could continue with non-governmental funds to undertake activities seeking to engage prostitutes in HIV-prevention measures, without being compromised in those efforts by having to articulate policy positions hostile to prostitution. The panel majority pointed out that this “affiliated organization” device for avoiding the restriction did not save the statute from constitutional challenge, because the statute went too far in requiring funding recipients to adopt an express policy position with which they may disagree.

“Furthermore,” the court said, “the targeted speech, concerning prostitution in the context of the international HIV/AIDS prevention effort, is a subject of international debate. The right to communicate freely on such matters of public concern lies at the heart of the First Amendment. The Policy Requirement offends that principle, mandating that Plaintiffs affirmatively espouse the government’s position on a contested public issue where the differences are both real and substantive. For example, the World Health Organization (“WHO”) and the Joint United Nations Programme on HIV/AIDS (“UNAIDS”) have recognized advocating for the reduction of penalties for prostitution – to prevent such penalties from interfering with outreach efforts – as among the best practices for HIV/AIDS prevention. Plaintiffs claim that being forced to declare their opposition to prostitution ‘harms their credibility and integrity as NGOs, which generally avoid taking controversial policy positions likely to offend host nations and partner organizations’ and risks ‘offending all of the groups whose approach to HIV/AIDS may differ from that of the government,’ not to mention some of the very people, prostitutes, ‘whose trust they must earn to stop the spread of HIV/AIDS.’”

The plaintiffs (now respondents in the Supreme Court) are represented by the Brennan Center for Justice and attorneys at Wilmer Cutler Pickering Hale & Dorr PC. Their lawsuit attracted amicus support from a large group of public health and human rights organizations.