New York Law School

Art Leonard Observations

Oklahoma Supreme Court Rules for Same-Sex Co-Parent Standing in “Parity” With Birth Mother in Custody Dispute

The Oklahoma Supreme Court ruled 8-1 in Schnedler v. Lee, 2019 WL 2588577, 2019 Okla. LEXIS 49 (June 25, 2019), that “a non-biological same-sex parent stands in parity with a biological parent,” and that once standing requirements are met, “the court shall adjudicate any and all claims of parental rights – including custody and visitation – just a the court would for any other legal parent, consistent with the best interests of the child.”  The lone dissenter, Justice Richard Darby, claimed that the court had issued an “advisory opinion” that was beyond its purview, and should have used “judicial restraint” and based its holding on “the narrowest grounds possible.”  Instead, the court treated it prior precedent on the issue of same-sex co-parent standing as obsolete and substituted an entirely new analysis.  Chief Justice Noma Gurich wrote the court’s opinion.

Lori Schnedler and Heather Lee met each other in the early 2000s, while both were employed by the Bartlesville Police Department, their relationship progressing from co-workers to co-habitants of an apartment.  After Lori did overseas military service, they bought a house together and decided to have a child.  “A work friend of Heather’s, Kevin Platt, agreed to serve as the sperm donor,” wrote Justice Gurich, but after donating his sperm, was not an active participant in the relationship between the women and their child.   Until the break-up of the couple years later and the resulting litigation, Kevin, who was married and had children from his marriage, did not have a relationship with the child.  After the break-up and the ensuing litigation, Kevin got involved and began to establish a relationship with the child.

The child was born in July 2007, either years before the Supreme Court decided Obergefell and a 10th Circuit decision, for which cert had been denied, resulted in marriage equality being available in Oklahoma.  The women’s relationship ended in April 2015, as the marriage equality issue was coming to a head in the courts.  Heather left the home they had shared, taking the child with her.  Although she allowed Lori regular visitation for seven months, Heather “suddenly denied Lori any further contact with their daughter,” wrote Gurich. “Since that time, Lori has neither seen nor spoken with J.L.”

Lori filed suit in December 2015, petitioning for an adjudication of the child’s custody, visitation, and child support, relying on the doctrine of in loco parentis, which the Oklahoma courts had recognized to some extend in prior same-sex parent disputes of this nature.  Heather objected to the petition “and sought to join Kevin, the biological father and genetic donor, as a necessary party to the proceedings.  Additionally, both Heather and Kevin brought cross-claims in the action, requesting the trial court’s determination that Kevin was J.L’s ‘biological and natural father’ and therefore entitled to full parental rights of custody, visitation, and support,” even though Kevin “was not demonstrably involved in J.L.’s life” before the lawsuit began.  Heather and Kevin both challenged Lori’s standing to bring the action, and the trial judge actually agreed, interpreting the state’s existing precedent of Ramey v. Sutton, 2015 OK 79, 362 P.3d 217 (Okla. 2015), as requiring the sperm donor to “consent to, and encourage, the non-biological partner’s parental role” in order to find parental standing for the co-parent. In this case, the sperm donor was a third party custody claimant as well and opposing Lori’s petition. The Court of Civil Appeals affirmed the trial court’s dismissal of Lori’s petition.  The Oklahoma Supreme Court granted certiorari “to clarify the standing of non-biological co-parents in same-sex relationships, and to create a meaningful and comprehensive framework for the adjudication of the same.”

First, the court found that the lower courts had misconstrued its earlier holding, which it insisted did not empower the sperm donor to stand as a barrier to the co-parent’s standing in a case like this one.  Going further, the court found its prior precedents using the doctrine of in loco parentis to be inadequate for present purposes, particularly in light of the U.S. Supreme Court’s concern, expressed in Obergefell v. Hodges, that children being raised by same-sex parents should not have to suffer their families being considered as “lesser” to traditional heterosexual families.

“In announcing today’s decision,” wrote Justice Gurich, “we are mindful of the need to establish practical guidelines for state courts.  We conclude that, to establish standing, a non-biological same-sex co-parent who asserts a claim for parentage must demonstrate – by a preponderance of the evidence – that he or she has engaged in family planning with the intent to parent jointly[,] acted in a parental role for a length of time sufficient to have established a meaningful emotional relationship with the child, and resided with the child for a significant period while holding out the child as his or her own child.  As always, a court shall assess these factors with the best interests of the child as its foremost aim.  When a continuing relationship with the non-biological parent is in those interests, a court must honor its validity and safeguard the perpetuation of that bond.  In such proceedings, parties may continue to invoke equitable doctrines and defenses, e.g., equitable estoppel.”

The court specifically rejected the use of in loco parentis as the deciding doctrine in such cases.  Justice Gurich wrote that “in loco parentis – at root, a legal fiction – is ‘by its very nature, a temporary status.’  Temporary and uncertain parental status only exacerbates the frequency of cases like today’s and creates an inherently more unstable environment for the children of same-sex couples.  Their children see them as mom or dad.  The law should treat them as such.”  The court asserted that its holding was “consonant with the constitutional protections guaranteed in Obergefell.

In his dissent, Justice Darby argued that the case could be resolve in Lori’s favor by a finding that the requirements of Ramey v. Sutton had been met in this case and that Lori could be accorded in loco parentis standing.  However, he argued, the court’s reformulation of the rules for finding standing for co-parents was unnecessary, and this an “advisory opinion,” and “This Court does not issue advisory opinions.”

Lori Schnedler is represented y Christopher U. Brech of McDaniel Acord & Lytle PLLC, Tulsa, and Michael F. Smith of McAfee & Taft, also Tulsa.  Heather Lee is represented by Bryan J. Nowling, of Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., also of Tulsa.  “No appearance for Kevin Platt, Third Party Defendant/Appellee,” states the clerk’s summary.

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Colorado Appeals Court Raises 8th Amendment Concerns Regarding Mandatory Sex Offender Registration for Juvenile Offenders

In a startling turn of events, a three-judge panel of the Colorado Court of Appeals rejected many years of its own precedents on June 20 when it ruled in People of the State of Colorado, In the Interest of T.B., Juvenile, 2019 WL 2528764, that imposing a lifetime sex offender registration requirement on a young person whose sex-related crimes were committed when he was a minor is a form of punishment, so before imposing it a court must determine whether it violates the minor’s 8th Amendment rights.  Writing for the majority of the panel, Judge Craig R. Welling did not specify the offenses for which T.B. was convicted, merely describing them as “unlawful sexual behavior.”

T.B. was adjudicated for “unlawful sexual contact” at age 12 in 2001, and in 2005 he pleaded guilty to a sexual assault charge.  He successfully completed the probation to which he was sentenced as well as offense-specific treatment.  Although the court does not go into the details of his offenses, the fact that he was not sentenced to confinement suggests that the crimes were not violent.  He has no other criminal record apart from the two sex offenses.  He filed a pro se petition in 2010 to discontinue the registration requirement, reporting that he had “successfully completed the terms and conditions of my sentence related to that offense” and that “I have not been subsequently convicted or adjudicated a juvenile delinquent for any offense involving unlawful sexual behavior.”  The trial judge granted T.B.’s petition as to the 2000 case, but concluded that by statute he could not be relieved of the registration requirement because he was a repeat offender. This was despite the court’s finding that T.B. “has earned the right not to have to register” and “he is not a risk to sexually reoffend.”  T.B. eventually obtained counsel, Gail K. Johnson and Katherine C. Steefel of Johnson & Klein, PLLC, Boulder (CO), and filed a second petition, claiming that lifetime registration violated his due process and 8th Amendment rights.  The court rejected his constitutional arguments, relying on People in the Interest of J.O., 383 P.3d 69 (Colo. Ct. App., 2015), which held that registration does not impose a punishment, rendering the due process and 8th Amendment arguments irrelevant.

The Colorado Sex Offender Registration Act requires that juveniles who are twice adjudicated for unlawful sexual behavior categorically must register as sex offenders for life.  Responding to T.B.’s appeal, a majority of the three-judge Court of Appeals rejected the precedent of Interest of J.O. and earlier similar holdings.  Judge Welling pointed out that T.B.’s petition requires a two-step analysis: first, whether registration is a punishment, and second, whether imposing registration is “cruel and unusual.”  In this as in past cases raising the issue, the trail court had never gotten to an analysis of evidence as to whether the requirement is cruel and unusual, having been stopped at the first step by the court’s holding that registration is not a punishment, rendering the 8th Amendment irrelevant.  The court decided that this question could arise both in terms of whether the statutory provision is facially unconstitutional, or whether it is unconstitutional as applied, and decided that it was appropriate to remand to the trial court to make the initial determination after an appropriate factual inquiry.

Prior rulings had focused on the civil nature of the requirement, but the court agreed with T.B.’s argument that it was possible that the punitive effect of the requirement could override its civil intent, while noting that the legislative history includes comments by legislators that would support their understanding about the punitive nature of such a requirement.  Judge Welling described a seven-factor analysis that had been proposed by the U.S. Supreme Court in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), to determine whether a requirement conceived by the legislature as civil should be deemed punitive.  The factors are: “(1) whether the sanction involves an affirmative disability or restraint; (2) whether it has historically been regarded as a punishment; (3) whether the court imposes the sanction only upon a particular finding of scienter; (4) whether its operation will promote the traditional aims of punishment; (5) whether the behavior to which it applies is a crime; (6) whether there is a rational connection to a nonpunitive purpose; and (7) whether it appears excessive in relation to the nonpunitive purpose.”

Applying the Mendoza-Martinez factors, the court concluded that several support T.B.’s argument that registration may be punitive in his case.  First, the court found, “the effect of requiring a juvenile to register as a sex offender for life is reminiscent of traditional forms of punishment.  The dissemination of information that is then used to humiliate and ostracize offenders can resemble forms of punishment that historically have been used to ensure that offenders cannot live a normal life.”  The court also noted that because juvenile proceedings are sealed, information about them is generally not available to the public, but the registration requirements makes them available to the public.  On this point, the court distinguished U.S. Supreme Court rulings that sex offender registration is not punitive, noting that all those cases involved adult sex offenders, the records of whose convictions “are presumptively public.”  This means that, although the Colorado register of juvenile sex offenders is not listed on the internet, the information is available to anybody who is doing a background check on T.B. in connection with a job application, since “any member of the public may request and obtain from his or her local law enforcement agency a list of sex offenders” that would include juvenile offenders.  At the hearing on T.B.’s petition, his parole officer (who was supporting his request) testified that “information about T.B.’s status as a sex offender could still show up in a background check and be the basis for T.B. losing an apartment or being fired from a job.

Judge Welling noted the U.S. Supreme Court’s recognition that “juveniles are different from adults for the purposes of the 8th Amendment,” and commented that “this differentiation is particularly acute when considering the consequences that juveniles face when they are required to register as sex offenders.”

Moving to another Mendoza-Martinez factor, Welling found that the “lifetime registration requirement promotes the traditional aims of punishment – ‘retribution and deterrence.’”  Furthermore, the behavior to which the registration provision applies “is already a crime,” he wrote, continuing, “For juveniles, CSORA’s lifetime registration requirement sweeps in only those who have been adjudicated for committing past crimes – and, once the requirement to register for life is imposed, it does so without regard to whether he or she is likely to reoffend.”  This also supports the contention that it is punitive in nature.

“The final two factors – whether there is a rational connection between the sanction and its stated nonpunitive purpose and whether the statute is excessive given that purpose – must be considered together,” wrote Welling.  While conceding that there is a connection to public safety, Welling concluded, the question is whether the requirement is excessive “given the important public safety justifications at issue,” and here, he pointed out, “a growing number of states have concluded that lifetime registration requirements similar to CSORA’s are excessive as applied to juveniles considering their nonpunitive purpose.”  He cited an quoted from decisions by several other state appellate courts on this point, while conceding that several opinions from other states rejected the contention of excessiveness.  On balance, the majority of this panel was more persuaded by the opinions finding excessiveness, concluding that “requiring a juvenile, even one sho has been twice adjudicated for offenses involving unlawful sexual behavior, to register as a sex offender for life without regard for whether he or she poses a risk to public safety is an overly inclusive – and therefore excessive – means of protecting public safety.  That overinclusiveness is exemplified in this case,” as the juvenile court found that T.B. was unlikely to reoffend.  Thus, the rational connection between the requirement and the nonpunitive public purpose was questionable, and the registration requirement, at least in T.B.’s case, arguably functions as a punishment.

But, the court concluded, the question whether imposing the requirement is “cruel and unusual punishment” remains to be determined, since it requires a “fact-intensive inquiry” and is “best addressed by the trial court in the first instance.”  Although T.B. submitted some evidence on this point, the state did not offer rebuttal testimony, content to rest on the solid precedent rejecting application of the 8th Amendment to registration requirements.  Similarly, because of the Colorado precedent holding registration to be nonpunitive, the trial judge never rendered a conclusion on the merits of the claim that imposing it was “cruel and unusual punishment.”  A remand is required for such a determination.  On another point, the court noted T.B.’s argument that the statute “creates an impermissible irrebuttable presumption that a previous offender will offend again and, therefore, remains a danger to the community forever,” but asserts that T.B.’s briefing failed to articulate the constitutional basis for that argument, and refrained from addressing it on the merits.

Dissenting Judge John R. Webb rejected the court’s analysis, reiterated the significance of repeated past holdings that the registration requirement is not punitive, and noting that the requirement in this case is authorized by statute, the legislature could amend or repeal it.  “Because relatively recent United States Supreme court cases imposing constitutional limitations on juvenile sentencing deal with palpable punishements – the death penalty and life without possibility of parole,” Webb wrote, “those cases provide little guidance in answering the preliminary question whether mandatory registration is punishment at all.  So, I discern insufficient reason to disavow our unanimous precedent.  Reaching an issue not address by the majority, I further conclude that the requirement does not violate due process, either on its face or as applied to T.B.  Both the majority’s heavy reliance on out-of-state authority and T.B.’s contrary policy arguments are better addressed by the General Assembly or our supreme court.  Therefore, and with respect, I dissent.

The immediate question is whether the State will appeal this ruling to the Colorado Supreme Court and, if need be, to the U.S. Supreme Court, as it raises a question of federal constitutional interpretation.  Judge Welling’s opinion notes that appellate courts of other states are divided on the question, which would provide a strong basis for the U.S. Supreme Court to grant a cert petition on the issue.

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N.Y. Appellate Division Revives Gay Dad’s Petition to Adopt His Son Conceived Through Gestational Surrogacy

A unanimous four-judge panel of the Brooklyn-based New York Appellate Division (2nd Department) revived a gay dad’s petition to adopt his son, reversing a “clearly erroneous” decision by Queens County Family Court John M. Hunt.  Hunt stated two reasons for dismissing the adoption petition: first, that the child was the result of a gestational surrogacy contract, and Hunt said permitting the adoption would validate “a patently illegal surrogacy contract,” and, second, that there was no authority under New York law for a parent to adopt his or her own biological child.  The June 26 Appellate Division opinion by Justice Alan D. Scheinkman clearly explained why both of those reasons are wrong, and the panel pointedly directed that the case be sent to a different Family Court judge to determine whether it was in the best interest of the child to grant the adoption, an easy decision in the circumstances.

The Appellate Division decision is particularly important and timely in light of the state legislature’s failure to pass a bill reforming the state’s laws on surrogacy, which are a legacy of reactions to an old New Jersey Supreme Court decision, the “Baby M Case,” which received sensational media coverage in reaction to an emotionally charged situation in which a surrogate mother refused to give up custody of a child to its intended parents, spiriting the child out of the state to avoid giving it up.  In that case, the N.J. Supreme Court ruled that the surrogacy contract was unenforceable, but that the biological father, who with his wife had contracted with the surrogate to carry the child, could seek custody.  Ultimately, the trial court granted visitation rights to the surrogate while awarding custody to the biological father in that case.

In Matter of John (Joseph P.), 2019 N.Y. App. LEXIS 5110, 2019 WL 2607522, 2019 NY Slip Op 05132, the New York case, a single gay man, called Joseph P. in the court’s opinion, wanted to have children who would be biologically related to him.  In 2012, he arranged under medical supervision to have embryos created using his sperm and eggs from an anonymous donor.  Then he found a woman who was willing to be a gestational surrogate on a volunteer basis, signing an agreement to waive parental rights as a birth mother and consent to the children’s adoption by Joseph P.  Some of the embryos were successfully implanted and twins, a boy and a girl, were born in 2013.  (This arrangement is sometimes referred to as “compassionate surrogacy.”) A Family Court judge granted Joseph P.’s petition to adopt the twins without any fuss or drama.  The embryos that were not used were frozen for possible future use.

In 2017, Joseph P. decided he would like to have more children using the remaining frozen embryos.  A woman friend agreed, again on a volunteer basis, to be the gestational surrogate, making an agreement that Joseph P. would adopt any resulting children, and a fertility clinic implanted two embryos.  This time only one was successful, and John was born in October 2017.  Joseph P. brought John home from the hospital and John has been in his care ever since, living together with Joseph P.’s other children as a family unit.  As part of the surrogacy agreement, the surrogate waived any parental rights and consented to the child’s adoption by Joseph P., but as a matter of course, only her name is listed as the mother on the child’s birth certificate.

Then Joseph P. ran into the roadblock of Judge Hunt, who misconstrued the surrogacy and adoption laws and dismissed Joseph P.’s adoption petition, despite a social worker’s favorable home study that found Joseph P. to be, as described in Justice Scheinkman’s opinion, “a mature, stable, and caring person who intentionally created a family of himself, the twins and John.”  The social worker concluded that “John’s adjustment appeared to be excellent, and it was clear that [Joseph P.], his twins, and John are a cohesive family unit.” The social worker’s report was supplemented with medical documentation and letters of reference.

Judge Hunt dismissed the petition based on his misinterpretation of both the surrogacy law and the adoption law.

Justice Scheinkman provided a careful description of the statutory framework governing surrogacy in New York.  The legislature provided that surrogacy contracts may not be enforced by the courts as a matter of public policy, and are treated as void.  But, the only surrogacy contracts that are actually outlawed are those in which the surrogate is to be compensated, in effect selling their gestational services.  It was clear to the Appellate Division that the legislature did not mean to outlaw voluntary surrogacy arrangements, merely to make them judicially unenforceable.

The distinguishing element of a criminal statute is the imposition of a penalty for its violation.  New York’s law on surrogacy imposes no penalty for entering into a voluntary surrogacy agreement.  It does impose a small monetary penalty for entering into a compensated surrogacy agreement, and a large penalty for people who act as “brokers” to arrange compensated surrogacy agreements.

New York trial courts, while abstaining from enforcing voluntary surrogacy agreements, have approved adoptions in the past where surrogates, whether voluntary or compensated, had waived their parental rights as birth mothers and had given formal consent to adoption of the children by biological fathers.

The bills under consideration in the legislature during the session just ended would have modified the laws to permit compensated surrogacy agreements subject to substantial regulation, but the details and the general concept proved too controversial to gain approval.  However, the Appellate Division’s careful analysis of the existing statutes made clear that the arrangement entered into by Joseph P. and his gestational surrogate was not, as Judge Hunt had stated, “patently illegal,” a result that Justice Scheinkman found to be “clearly erroneous.”  Furthermore, Joseph P.’s petition was not an action to “enforce” the surrogacy agreement.  No such judicial “enforcement” was necessary, because the surrogate had executed the necessary documents to waive parental rights and consent to the adoption.

Turning to Hunt’s second ground for dismissing the petition, the Appellate Division found no basis in the adoption statute for the proposition that a biological father may not adopt his own child.  Judge Hunt had asserted that such an adoption would not serve the purposes of the adoption statute because the adoption “would confer rights upon a parent which already existed.”  Justice Scheinkman pointed out the error of this view.

When John was born, the only name placed on his birth certificate was that of the birth mother, the gestational surrogate.  At that point, she was the only legal parent.  That Joseph P. was the biological parent did not automatically make him the legal parent, because Joseph P. had no legal relationship with the surrogate, as the contract they made was not legally enforceable.  Joseph P. could bring an “action of filiation” to prove he was the biological father, but that would not establish a full legal parent-child relationship with all the rights and responsibilities flowing from it.  In fact, actions of filiation are more usually brought by single birth mothers to prove the identity of the biological father in order to impose support obligations on him, not to bestow him with custody of the child!

“Here,” wrote Justice Scheinkman, “the appellant, an otherwise qualified ‘adult unmarried person,’ seeks to adopt a child in order to gain legal and social recognition for the parent/child relationship already existing between himself and the child.  The Family Court disallowed it on the ground that there is no authority for a parent to adopt his or her biological child.  We disagree.  The blanket prohibition, invoked by the Family Court, against legal adoption of a child by a biological parent, is not supported by either the language of the statute or its purpose.”

The text of the adoption statute does not mention biological relationships between parents and children.  It merely specifies who can adopt a child, listing, among others, an “adult unmarried person.”  It is up to the court to determine whether granting the adoption would be in the best interest of the child.  “While adoption is a statutory creation,” wrote Scheinkman, “the adoption sought here is authorized by the governing statute and there is nothing in the statute which precludes it.  Further, to the extent that the Legislature has contemplated this subject, it has permitted adoptions notwithstanding an existing biological connection.”  The court then cited several cases involving unusual situations where courts had approved adoptions of children by their biological fathers.  While conceding that “the issue we consider here is relatively novel and there is little by way of precedent,” said the court, what cases there were supported allowing the adoption.

“The appellant, at present, has no legal relationship with the child,” observed the court, and the gestational mother did not seek to have a legal parental relationship with John.  “Thus, an adoption of this child by the appellant would create a legal parent-child relationship where none previously existed, while severing a legal relationship with the gestational mother that exists solely as a legal abstraction with no physical or emotional manifestation.  While the appellant could obtain an order of filiation,” continued the court, “such would leave the surrogate as the legal mother, which was not their intent in creating the child.  Further, the continuance of a bare legal tie between the child and the surrogate would not require her to actually assume a maternal role toward the child.  The surrogate would be left as a vestigial parent only.  While her rights could be terminated for abandonment or neglect, absent an adoption, only governmental authorities could initiate termination proceedings, leaving both the appellant and the child at the mercy of governmental discretion.”

The court characterized an order of filiation as a “shallow remedy” in this situation, since it would impose on Joseph P. only some of the obligations of parenthood.  For example, it would not provide Joseph P. “with judicial authorization to make decisions on behalf of the child” that a parent would ordinarily make, such as medical treatment decisions.  Joseph P. would then be left to initiate a new custody proceeding, “thus requiring him to initiate successive and time-consuming proceedings in which the ostensible adverse party would be the gestational surrogate who had already renounced her own tie to the child.”

The court concluded that allowing a biological parent to adopt a child born through gestational surrogacy “complies with the purpose of the adoption statute and should be permitted where, as in all adoption cases generally, the proposed adoption is in the best interests of the child.”  Because this appeal was resolved based on construction of the statutes, the court refrained from addressing Joseph P.’s alternative argument claiming that Judge Hunt’s ruling denied him equal protection of the law in violation of the Constitution, or that the ruling discriminated against him because of his single marital status.

Joseph P. formally represented himself on the appeal.  As noted above, the court sent the case back to Queens County Family Court “to be conducted forthwith before a different Judge.”

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Disappointed Gay Dad Asks Supreme Court to Overturn Key New York Precedent

In Brooke S.B. v. Elizabeth A.C.C., 61 N.E.3d 488 (2016), the New York Court of Appeals overruled a 25-year-old precedent and held that when there is clear and convincing evidence that a same-sex couple agreed to have a child and raise the child together, where only one of them will be the child’s biological parent, and both of the parties performed parental duties and bonded with the children, the other parent would have the same rights as the biological parent in a later custody dispute. Now a gay biological dad who lost custody of twins to his former same-sex partner by application of the Brooke S.B. precedent asked the U.S. Supreme Court on May 10 to rule that his 14th Amendment Due Process rights have been violated.  Frank G. v. Joseph P. & Renee P.F., No. 18-1431 (Filed May 10, 2019); Renee P.F. v. Frank G., 79 N.Y.S.3d 45 (App. Div., 2nd Dep’t, May 30, 2018), leave to appeal denied, 32 N.Y.3d 910 (N.Y.C.A., Dec. 11, 2018).

Frank G. and Joseph P. lived together in a same-sex relationship in New York and made a joint decision to have a child.  Joseph P.’s sister, Renee, had previously volunteered to be a surrogate for her gay brother, both donating her eggs and bearing the resulting child or children.  Renee became pregnant through assisted reproductive technology using Frank’s sperm.  The three entered into a written agreement under which Renee would surrender parental rights but would be involved with the resulting child or children as their aunt.

After the twins were born, both men participated in parenting duties.  Joseph sought to adopt the twins under New York’s second-parent adoption rules, and he remembered completing paperwork that Frank was supposed to complete and submit, but that never happened.  The men were not sexually exclusive and eventually arguments about Frank’s sexual activities led to Joseph moving out.  He continued to have regular contact with the children until Frank suddenly cut off contact after another argument.  Frank subsequently moved with the children to Florida in December 2014.  Frank did not notify Joseph or Renee of that move. When they found out, Joseph filed a guardianship petition.  (Under New York precedents at the time, he did not have standing to file a custody petition.)

As lower court rulings were questioning the old New York precedent, Joseph withdrew his guardianship petition and both he and Renee filed custody petitions.  Renee had standing to seek custody as the biological mother who had remained in contact with the children.

Frank moved to dismiss the custody lawsuit, but the trial judge, Orange County Family Court Judge Lori Currier Woods, rejected the motion, holding that both Joseph and Renee had standing to seek custody and ordering temporary visitation rights for Joseph and Renee while the case was proceeding.  Frank appealed to the Appellate Division, 2nd Department.  While his appeal was pending, the Court of Appeals decided Brooke S.B..  Applying that case, the Appellate Division affirmed the trial court’s standing decision and returned the case Judge Woods.

After a lengthy trial, which is summarized in detail in the trial court’s opinion, the trial court awarded custody to Joseph, with visitation rights for Frank.  Frank appealed again.  The Appellate Division affirmed the trial court’s order.  Frank unsuccessfully sought review by the New York Court of Appeals.

Frank is represented on the Supreme Court petition by Gene C. Schaerr of the Washington, D.C. firm of Schaerr/Jaffe LLP.  Schaerr, a Federalist Society stalwart and a Mormon from Utah, where he graduated from Brigham Young University’s Law School, was prominently involved in the marriage equality battle, representing the state of Utah in defending its ban on same-sex in federal court, and he submitted an amicus brief to the Supreme Court in Obergefell v. Hodges on behalf of conservative legal scholars who argued that allowing same-sex marriage would be harmful to the institution of marriage, presenting social statistics from Europe purporting to show that the adoption of same-sex marriage in some countries caused rates of heterosexual marriage to fall.  Social scientists have contended that the downward trend in marriage rates in Europe was well under way long before the countries in question extended legal recognition to same-sex relationships, and causation was not shown.   In other words, Schaerr is an anti-LGBT cause lawyer, and the slanting of facts recited in the Petition for Frank as compared to the detailed fact findings summarized in the trial court’s unpublished opinion, which is appended to the cert Petition, is striking.

Family law is primarily a matter of state law, but the U.S. Supreme Court occasionally gets involved in family law disputes that raise constitutional issues.  Since early in the 20th century, the Supreme Court has ruled that a legal parent of a child has constitutional rights, derived from the Due Process Clause, relating to custody and childrearing.  The Petition argues that the rule adopted by the New York Court of Appeals and the appellate courts of some other states, recognizing parental status for purposes of custody disputes between unmarried same-sex partners, improperly abridges the Due Process rights of the biological parents.

Some state courts have issued decisions similar to Brooke S.B., while others have refused to recognize standing for unmarried same-sex partners to seek custody.  There is definitely a split of authority on the issue, but it is not necessarily the kind of split that would induce the Supreme Court to take a case.  The Supreme Court is most concerned with variant interpretations of federal statutes or of the U.S. Constitution, but the state court cases addressing the issue of same-sex partner standing have generally not discussed constitutional issues and have reached their conclusions as an interpretation of their state custody statutes.  Although it is true that same-sex partner parental rights vary as between different states, this does not necessary create the kind of patchwork as to federal rights upon which the Court would focus.

Furthermore, the Court has not invariably ruled in favor of biological parents on the rare occasion when it has agreed to consider legal issues arising from custody disputes.  For example, in one notable case, it upheld a California law creating an irrebuttable presumption that a man who was married to a birth mother is the father of the resulting child, even when it was obvious, and nobody disputed, that another man was responsible for impregnating the woman.  In that case, even though the woman and her husband were living on opposite coasts when she became pregnant in a relationship with the plaintiff, the court upheld denying that man standing to seek custody of the child.

Most of the Supreme Court rulings on disputed custody issues have placed substantial weight on the rights of the biological parent, including a presumption that the biological parent will make decisions in the best interest of the child. In this Petition, Frank claims that the New York courts violate the 14th Amendment by not applying such a presumption for the biological father in the context of a same-sex couple custody dispute.

The Supreme Court’s deadline for filing a brief in response to a petition for certiorari in this case was June 14, but the Court’s docket does not show the filing of a brief or appearance of counsel on behalf of Joseph or Renee as of June 19.  However, four conservative organizations have filed motions with the Court to accept amicus briefs in support of Frank’s petition.  Frank’s attorneys have consented to the filing of these briefs, of course, but Joseph has not consented, so it is up to the Court whether they can be filed.

If the Supreme Court decides to take this case, the Brooke S.B. precedent, which LGBT rights litigators struggled for many years to obtain, may fall.

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9th Circuit Instructs District Court on Next Stage in Trans Military Litigation

A three-judge panel of the San Francisco-based U.S. Court of Appeals for the 9th Circuit issued a ruling on June 14 on several appeals filed by the Justice Department in Karnoski v. Trump, one of the lawsuits challenging President Trump’s transgender military policy.  The result was not a complete win for the government or the plaintiffs, but the case will go forward before U.S. District Judge Marsha J. Pechman in Seattle using different legal tests than those she had employed in issuing the rulings that the government had appealed.  Because one of the other challenges to the policy is pending in a district court in Riverside, California, which is also within the 9th Circuit, the court’s ruling effectively applies to both cases.  Karnoski v. Trump, 2019 U.S. App. LEXIS 17878, 2019 WL 2479442 (9th Cir., June 14, 2019).

Since neither party is likely to be fully satisfied with the ruling, which does not fully embrace either party’s position on the appeals, it is possible that one or both will seek reconsideration by a larger panel of the circuit court.  In the 9th Circuit, such panels consist of the Chief Judge of the Circuit and ten active circuit judges drawn at random, together with any senior judges who sat on the panel.  The panel that issued the June 14 ruling had two senior judges – Raymond C. Fisher and Richard R. Clifton – and one active judge, Conseulo M. Callahan.  Fisher was appointed by Bill Clinton, while Clifton and Callahan were appointed by George W. Bush.  District Judge Pechman was appointed by Bill Clinton.

For purposes of simplicity, this description of where the lawsuit stands will refer to the policy announced by then-Defense Secretary Ashton Carter in June 2016 as the 2016 policy, the policy announced in tweets and a White House memorandum by President Donald Trump in July and August 2017 as the 2017 policy, and the policy recommended to Trump by then-Defense Secretary James Mattis in February 2018 as the 2018 policy.

The 2016 policy ended the long-standing regulatory ban on military service by transgender people, but delayed allowing transgender people to enlist until July 2017.  In June 2017, Secretary Mattis announced that the ban on enlistment would be extended to the end of 2017.  The July tweet and August 2017 memorandum announced a return to the ban on service and enlistment that predated the 2016 policy, but delayed re-implementation of the ban until March 2018, pending submission of an implementation plan to the president by Mattis, while providing that the ban on enlistment would remain in effect.

The plan Mattis recommended in February 2018, and that Trump authorized him to adopt, abandoned the total ban concept and is complicated to explain. The policy attempted to shift its focus, at least in terms of concept, from transgender status to the condition of gender dysphoria as described in the American Psychiatric Association’s Diagnostic and Statistical Manual.  The 2018 plan allows some transgender people to serve under certain conditions, depending upon whether and when they were diagnosed with gender dysphoria, whether and when they intended to transition or had transitioned, and whether they were willing to serve in their gender as identified at birth.  People who had been diagnosed with gender dysphoria were barred from enlisting, and currently serving transgender personnel who had not been diagnosed and initiated the process of transitioning by the time the 2018 policy went into effect could continue serving only if they foreswore transitioning while in the service.  However, those who were serving and had begun transitioning before the 2018 policy went into effect could continue serving in the gender to which they had transitioned.  People who identify as transgender but have not been diagnosed with gender dysphoria and are content to serve in the gender identified at birth can enlist and serve, but must leave the service if they are subsequently diagnosed with gender dysphoria.  The bottom line, which was a motivation for Trump’s initial tweet, is that once the 2018 policy was in place, the military would not be funding sex-reassignment surgery for anyone and people could not transition in the military.

Beginning in August 2017 and continuing through that summer, challengers file four lawsuits challenging the 2017 policy on constitutional grounds in Baltimore, Washington (D.C.), Seattle, and Riverside (California).  All of the major LGBT litigation groups were representing the plaintiff in one or more of the cases.  Within months, each of the federal district judges had granted motions for preliminary injunctions to prevent the 2017 policy from going into effect.  In order to issue the injunctions, all four judges had to find that some or all of the plaintiffs’ legal arguments had a fair chance of succeeding on the merits, and that the injunctions were necessary to prevent irreparable harm to the plaintiffs by preserving the status quo without harming the public interest.  The district judges refused to “stay” their injunctions, and on the east coast they were backed up by the 4th and D.C. Circuits, leading the government to abandon an attempt to appeal the denial of stays for the west coast cases in the 9th Circuit.  The district judges also rejected motions by the government to dismiss the cases.  Thus, on January 1, 2018, the Defense Department was required to accept enlistment applications from transgender people, and the 2016 policy remained in effect for transgender people who were actively serving in the military.

Meanwhile, Secretary Mattis appointed a Task Force as directed by the August 2017 White House memo to prepare a report in support of an implementation policy recommendation, which he submitted to the White House in February 2018, urging the president to revoke the 2017 policy and to allow Mattis to implement his recommended policy.  The Task Force was described in various ways at various times by the government, but the names and titles of the members were not listed in the written report released to the public, and the government has resisted discovery requests for their identity and information about how the Task Force report was prepared.

Once Secretary Mattis had the go-ahead from Trump to implement his recommendation, the Justice Department moved in all four courts to get the preliminary injunctions lifted, arguing that the 2018 policy was sufficiently different from the 2017 policy to render the existing injunctions irrelevant.  All four of the district judges rejected that argument and refused to dissolve or modify their injunctions.  The government appealed and ultimately was able to persuade the Supreme Court earlier this year to stay the injunctions and allow the policy to go into effect early in April. Although the 2018 policyhas been in effect for over two months, there have not been reports about discharges of serving transgender personnel.

Significantly, the 9th Circuit panel implied without ruling that the preliminary injunction against the 2017 policy seemed justified.

Meanwhile, the parties in the four cases were litigating about the plaintiffs’ attempts to conduct discovery on order to surface the information necessary to prove their constitutional claims against the policy.  The government fought the discovery requests doggedly, arguing that the internal workings of its military policy-making should not be subject to disclosure in civil litigation, referring to but not formally invoking concepts of decisional privilege and executive privilege, which courts have recognized to varying extent in prior cases challenging government policies.

In the Karnoski case in Seattle, Judge Pechman was highly skeptical about the government’s arguments, having questioned whether the policies were motivated by politics rather than professional military judgment, and she issued an order for the government to comply with a large portion of the requests for documents and information after prolonged negotiations by the lawyers largely came to naught.  The government appealed her discovery orders to the 9th Circuit, together with refusal to rethink the preliminary injunction in light of the substitution of the 2018 policy for the 2017 policy.

The June 14 opinion describes how the case should go forward, taking account of the Supreme Court’s action in having stayed the preliminary injunctions but not dissolved them.  The 9th Circuit panel agreed with the D.C. Circuit, which had concluded earlier in the year that the D.C. district court was wrong to conclude that the 2018 policy was just a version of the 2017 policy with some exceptions.  The appellate courts held that the 2018 policy recommended by Mattis was no longer the total ban announced in 2017, so the district court should evaluate the 2018 policy.

The court rejected the government’s argument that shifting the exclusionary policy from “transgender status” to “gender dysphoria” eliminated the equal protection issue, finding from the wording of the Task Force report and the policy as summarized in writing by Mattis that the policy continued to target transgender people in various ways, regardless whether they have been diagnosed with gender dysphoria, through the conditions it places on their service.  This was a “win” for the plaintiffs on an important contested point.

Judge Pechman had concluded that gender identity is a “suspect classification,” so for purposes of evaluating the constitutionality of the policy under an Equal Protection challenge, it should be presumed unconstitutional with a heavy burden placed on the government to prove a compelling need for the policy.  The 9th Circuit panel decided there was not sufficient precedent to support that approach, but did agree with the position taken by the district judges in the other three cases that the policy should be subjected to “heightened scrutiny,” similar to the approach courts take in sex discrimination cases, but tempered by consideration of the degree to which the policy merits deference as a product of professional military judgment.

Judge Pechman had concluded that the 2017 policy did not merit judicial deference, because there was no evidence before the court that it was the product of professional military judgment.  Rather, as all the district judges had concluded, based on the way the policy was announced in a surprise tweet and the failure of the government to provide any information about how it was formulated, the court’s analysis should not be tempered by judicial deference.

Now, however, said the 9th Circuit panel, the government had described, in a general way, how Mattis’s Task Force was put together, and t the 2018 policy was allegedly the result of many meetings, study, much interviewing of military personnel, and a 44—page report.  If one accepts the government’s description of the process – still not identifying by name the Task Force members or getting into any real detail about the basis for their conclusions – the court said, there is an argument that the 2018 policy should be accorded judicial deference, but whether to do so, and how that would interrelate with the heightened scrutiny standard, were questions to be addressed by the district court.  Thus, the task for Judge Pechman now is to determine whether the 2018 policy is sufficiently a product of military judgment to justify applying a deferential standard of review.  Some degree of cooperating by the government in the discovery process is crucially necessary for such an analysis to take place.

However, as to discovery, the 9th Circuit panel expressed concern that Judge Pechman had not accorded sufficient weight to the concepts of decisional and executive privilege in formulating her discovery order, and directed that she refer to guidelines set out in some recent court opinions.  In particular, the court disagreed with her order that the government provide detailed privilege logs with descriptions of all the documents for which there were privilege concerns, and suggested that an approach focused on broadly described categories of documents and information could suffice for an initial determination of the degree to which privilege might be claimed to block disclosure.

The bottom line is that the Karnoski case goes back to Judge Pechman for a fresh analysis of whether plaintiffs should be entitled to a preliminary injunction against the 2018 policy, using heightened scrutiny and taking account of privilege claims in the discovery process, along the lines outlined by the court.  This opinion also sends a message to the district court in Riverside, where similar government motions are pending.  Meanwhile, the discovery battles continue in the cases pending in Baltimore and Washington.

In light of the Trump Administration’s general policy of fighting against demands for disclosure of internal executive branch decision-making, whether by Congressional committees or litigants, it is difficult to predict when there will be sufficient discovery to provide a basis for further rulings on preliminary injunctions or the ultimate merits of the four court challenges.  The lawsuits succeed in blocking implementation of the total ban and the 2017 policy, and in delaying implementation of the 2018 policy for more than a year.

The litigation will not be finally resolved before Inauguration Day in January 2021 unless the Trump Administration is willing to negotiate some sort of compromise settlement satisfactory to the plaintiffs.  If any of the current Democratic presidential candidates is elected and takes office, a quickly-issued executive order restoring the 2016 policy could put an end to the entire transgender military service drama and restore sanity to an issue that has been clouded by politics and substantial misinformation, such as Trump’s recent grossly-exaggerated statements about the cost of health care for transgender personnel.

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New Jersey Judge Orders Shut-Down of “Alter Ego” of Former Conversion Therapy Group

Hudson County (NJ) Superior Court Judge Peter F. Bariso, Jr., issued a scathing opinion on June 10, ordering the immediate dissolution of an organization calling itself Jewish Institute for Global Awareness (JIFGA) , based on his finding that JIFGA was an “alter ego” of “Jews Offering New Alternatives to Homosexuality” (JONAH), a conversion therapy service that had been convicted of violating the New Jersey Consumer Fraud Act by a jury in Judge Bariso’s court on June 25, 2015.  Ferguson v. JONAH Jews Offering New Alternatives for Healing f/k/a Jews Offering New Alternatives to Homosexuality, 2019 N.J. Super. Unpub. LEXIS 1336 (N.J. Super. Ct., Hudson Co.).

The jury verdict followed a lengthy trial in which “clients” of JONAH testified about the absurd and extreme treatments to which they were exposed.  Many of the clients were young people who were pushed into “therapy” with JONAH by their religiously-observant parents in a desperate attempt to “turn them straight.”  The jury verdict concluded that JONAH, its operators and those associated with it were engaged in consumer fraud, misrepresenting their ability to change a person’s sexual orientation.

After the jury verdict, the parties negotiated a settlement agreement, approved by the judge, under which JONAH was supposed to go out of business and pay substantial damages as reparation to the plaintiffs who had been defrauded.  Arthur Goldberg and other individual defendants were targeted by a permanent injunction issued by Judge Bariso, being “permanently enjoined from engaging, whether directly or through referrals, in any therapy, counseling, treatment or activity that has the goal of changing, affecting or influencing sexual orientation, “same sex attraction” or “gender wholeness,” or any other equivalent term, whether referred to as “conversion therapy,” “reparative therapy,” “gender affirmation process” or any other equivalent term (“Conversion Therapy”), or advertising or promoting Conversion Therapy-related commerce in or directed at New Jersey or New Jersey residents.”

As part of the settlement agreement, which precluded an appeal by the defendants, the plaintiffs agreed to a lower level of damages than would otherwise be awarded by the court in exchange for defendants’ commitment to pay agreed-upon damages promptly and to put JONAH out of business and comply with the terms of the injunction, which was also binding on the named individual defendants.

But evidence presented by the plaintiffs in support of a March 2018 motion to enforce their rights under the settlement agreement persuaded the court that Goldberg was “blatantly” flouting the settlement agreement and violating the injunction by starting a new organization, JIFGA, to pick up where JONAH left off.  Baroso headed the first part of his findings: “There is clear and convincing evidence that defendants repeatedly violated the settlement agreement and the permanent injunction.”

The ink was barely dry on the signatures before Goldberg resumed making referrals to conversion therapy practitioners for people who called for assistance, and the damages agreed upon were not paid in full.  Goldberg claimed that he understood that the injunction only pertained to clients and therapists in New Jersey, and that he was receiving calls from out of state and referring the callers to therapists who practiced outside the state.  Bariso rejected this crabbed reading of the injunction, finding that there were no geographical “loopholes,” and referred to evidence showing that Goldberg had actually acknowledged in writing the possibility that his referrals were illegal.

Furthermore, the opinion documents Goldberg’s ambitions to take his conversion therapy promotion “global,” as indicated by the name of his new organization.  Wrote Bariso, “Goldberg’s use of his New Jersey non-profit organization has extended outside the United States.  In the spring of 2018, Goldberg reached out to Alan Alencar, a Brazilian leader of Joel 2:25 (conversion therapy organization modeled on JONAH).  In an email, Goldberg wrote, ‘after the demise of JONAH, I created the Jewish Institute for Global Awareness’ and offering to ‘be helpful down there to you.’  When Alencar responded that Joel 2:25 was planning to work on men with SSA [same-sex attraction] and start something similar to JIM [a conversion therapy weekend program], Goldberg jumped on the opportunity to discuss his experience working with ‘the SSA issue’ and how he could help.”  Goldberg put Alencar in touch with three conversion therapy providers in Brazil, and urged the creation of similar programs in Europe after returning from a conference on conversion therapy in Slovakia.

Bariso wrote that various Goldberg communications that surfaced through discovery on this motion “highlight the lies in Goldberg’s statement to this court that JIFGA has not worked ‘to promote commerce in conversion therapy.’”

As to the “alter ego” finding, Bariso wrote, “JONAH and JIFGA have the same co-founders and co-directors (Goldberg and [Elaine] Berk), occupy the same office, and are reachable at the same phone number and email addresses.  Arguably, they have the same name , as JIFGA is a recycled acronym that JONAH once used to market itself to a wider audience.  Through discovery, it was found that JIFGA plainly continues JONAH’s general operations and that JIFGA picked up where JONAH left off.”

Judge Bariso concluded that defendants had committed fraud on the court, “constituting criminal contempt of this court and its orders.”  The court found that Goldberg and JIFGA continued to make referrals to conversion therapy practitioners even as the motion was being litigated, and while they were representing to the court that they were complying with the injunction.

Bariso ruled that JIFGA would be made subject to the existing injunction against JONAH, and specified that “all communications channels in JIFGA’s control and use for JIFGA’s operations, including the email accounts and phone numbers from JONAH, must be terminated.  Goldberg and Berk are also enjoined from serving as directors or officers of or incorporating any tax-exempt entity incorporated in or having operations in New Jersey.”  Since the court found a violation of the settlement agreement, the requirement to pay damages at the full original rate was triggered, “a payment that could have been avoided by simply complying with the permanent injunction and the settlement agreement.”  The court also ordered the defendants to pay the plaintiff’s legal expenses of litigating this motion, which involved lots of discovery time.

However, Judge Bariso denied the plaintiffs’ request to hold the individual defendants in criminal contempt.  “This court seriously questions the direct falsities outlined in Goldberg’s certifications,” wrote Bariso, “along with his willingness to blatantly disobey the permanent injunction.  However, the remedies awarded to plaintiffs will serve the dual purpose of contempt hearings: to deter and to punish.  The inability for defendants to incorporate another tax-exempt entity in New Jersey will insure that defendants no longer use a similar platform to again violate the injunction and the New Jersey Consumer Fraud Act.   Additionally, the monetary damages awarded to plaintiffs will deter defendants from defying this court’s orders.”

Based on his past conduct, it seems likely that Goldberg will try to devise new ways to defy the court’s orders without getting caught, so Judge Bariso’s concluding paragraph seems unduly optimistic and surprisingly naïve.

The plaintiffs are represented by Bruce D. Greenberg of Lite DePalma Greenberg, LLC; David C. Dinielli, of Southern Poverty Law Center; and Lina Bensman of Cleary Gottlieb Steen & Hamilton LLP (New York).

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Supreme Court Grants Certiorari in Oregon Wedding Cake Case, but Remands for “Further Consideration” in Light of Masterpiece Cakeshop

The U.S. Supreme Court granted a petition for a writ of certiorari in Klein v. Oregon Bureau of Labor and Industries, No. 18-547, on June 17, but at the same time vacated the Oregon Court of Appeals decision in the case, 289 Or. App. 507 (Dec. 28, 2017), and remanded the case to that court for “further consideration” in light of the Court’s decision last year in Masterpiece Cakeshop v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018).  The Court did not issue any explanation for its ruling, beyond the direction of “further consideration” specifying Masterpiece Cakeshop as the ground for such consideration.

Both cases involved the question whether a baker who refuses to make a wedding cake for a same-sex couple has a federal constitutional defense to a discrimination charge in the state administrative and judicial fora.  In both Oregon and Colorado, state law forbids discrimination because of sexual orientation in places of public accommodation, and businesses selling wedding cakes are definitely public accommodations under both laws.  Without ruling directly on the question presented in Masterpiece, the Supreme Court last year vacated the Colorado Court of Appeals and Colorado Commission rulings based on the Court’s conclusion that the Commission forum was “hostile to religion” as evidenced by statements by two of the Commissioners and “inconsistent” action on a religious discrimination charge by a provocateur who sought unsuccessfully to order anti-gay cakes from other bakers.

It takes at least four votes on the Supreme Court to grant a writ of certiorari, but it takes at least five votes to vacate and remand a lower court ruling.  According to its usual practice, the Court did not specify how many justices voted for the cert grant or the “vacate and remand” order.

The issue on remand for the Oregon Court of Appeals appears to be whether some statements made by Brad Avakian, Commissioner of the Oregon Bureau of Labor and Industry (BOLI), evinced the kind of hostility to religion that the Supreme Court identified as problematic in the Masterpiece case.

When Melissa Klein, proprietor of Sweetcakes by Melissa, rejected a wedding cake order from Rachel and Lauren Bowman-Cryer on religious grounds, the women filed complaints with the Oregon Department of Justice and the Bureau of Labor and Industries. The media found the case newsworthy, resulting in interviews with Melissa Klein and her husband in which they sought to justify their action on religious grounds.  Commissioner Avakian reacted to the ensuing controversy by posting a statement to his Facebook page and speaking with The Oregonian, a wide-read newspaper in the state.

Avakian’s Facebook post included a link to a television station’s news story about the refusal of service and a statement: “Everyone has a right to their religious beliefs, but that doesn’t mean they can disobey laws that are already in place.  Having one set of rules for everybody ensures that people are treated fairly as they go about their daily lives.”  The Oregonian subsequently quoted Avakian as saying that “everyone is entitled to their own beliefs, but that doesn’t mean that folks have the right to discriminate.”

Under BOLI’s procedures, an administrative law judge (ALJ) holds a hearing and issues a “proposed final order,” to which the parties can file “exceptions” as an appeal to the Commissioner.  Before the hearing in this case, the Kleins moved to disqualify Commissioner Avakian from taking any role in the case, arguing that his public statements had prejudged the case so he was not neutral.  The ALJ denied the motion to disqualify and went on to find that the Kleins had violated the statute by denying services to the couple “on account of” their sexual orientation, as prohibited by the statute.  The ALJ rejected the Kleins argument that they had not discriminated because of the women’s sexual orientation, or that their actions were protected by the First Amendment free speech and free exercise of religion provisions.  But the ALJ also rejected BOLI’s argument that statements made by Mr. Klein during interviews were communicating a future intent to discriminate, which would itself violate a specific prohibition in the statute. Rather, the ALJ ruled, they were an account of the reasons for their denial of services in this case.  The ALJ ordered damages to the couple totaling $135,000, mainly for emotional suffering and having to put up with the media attention.

The Kleins and BOLI both filed exceptions to the ALJ’s proposed order. Commissioner Avakian affirmed the ALJ’s ruling on discrimination, but disagreed with the ruling on statement of future intent to discriminate.  Avakian concluded that the record supported the opposite finding, that the interviews and a sign taped to the bakery’s window communicated intent to discriminate on the same basis in the future, but he approved the ALJ’s proposed damage award without adding anything for this additional violation.  The Kleins then petitioned for judicial review.

The Oregon Court of Appeals affirmed the ALJ’s decision on discrimination, but rejected Commissioner Avakian’s reversal of the ALJ’s ruling on communicating an intention to discriminate in the future.  The court also rejected the Kleins’ argument on appeal that Avakian should have been disqualified from ruling on the case because of his Facebook and Oregonian interview statements. As to another flashpoint in the case, the court deemed the amount of damages awarded appropriate, noting that the amount was in line with damages awarded in other similar cases.  The Kleins sought review in the Oregon Supreme Court, but were turned down without comment.

The Kleins’ petition for certiorari to the U.S. Supreme Court mentions the issue of Avakian’s statements and the ALJ and Oregon court’s rejections of disqualification, but it does not focus on that issue in its statement of questions presented, even though the petition was filed months after the Supreme Court’s ruling in Masterpiece Cakeshop made that a potentially viable alternative route to getting the agency’s decision overturned.  Counsel for the Kleins, instead, were focused on getting the Supreme Court to reconsider its 1990 ruling, Employment Division v. Smith, 494 U.S. 872, in which the Court abandoned its long-established free exercise clause jurisprudence, substituting a rule that people have to comply with neutral state laws of general application – such as most anti-discrimination laws – even though complying might burden their free exercise of religion.   Their second “question presented” asked the Court to overrule Smith, and their third “question presented” asked the Court to “reaffirm” a “hybrid rights doctrine” suggested in dicta in Smith, where there would be more stringent judicial review in cases where other constitutional rights in addition to free exercise of religion were implicated.

The Supreme Court’s decision to vacate the Oregon Court of Appeals decision for “further consideration” by the state court suggests that there are not enough votes on the Court to reconsider Smith as of now, but we can’t know how many votes short the proponents on the Court of reconsidering Smith might be.  Smith has long been a controversial precedent.  The decision’s cutback on protection for religious objectors led Congress to pass the Religious Freedom Restoration Act and many states to pass their own versions of that law.  But Smith has become a bulwark for vindicating the rights of same-sex couples to obtain wedding-related goods and services, as most courts confronted with the issue have concluded that such businesses do not have the right to deny them to same-sex couples.

The Kleins are represented by First Liberty Institute of Plano, Texas, Boyden Gray & Associates of Washington, D.C., and Oregon local counsel Herbert G. Grey.  Ten amicus briefs, all urging the Court to grant the petition for certiorari, were filed by conservative and religious litigation and policy groups, many extolling the case as a vehicle for overturning Employment Division v. Smith.  Lambda Legal represented Rachel and Laurel Bowman-Cryer with an amicus brief at the Oregon Court of Appeals.

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4th Circuit Court of Appeals Rejects Constitutional Challenge to Gay Hate Crime Conviction

A divided panel of the U.S. Court of Appeals for the 4th Circuit rejected a constitutional challenge by James William Hill, Jr., to his conviction under the federal Hate Crimes Act for assaulting a gay co-worker.  United States of America v. Hill, 2019 U.S. App. LEXIS 17731, 2019 WL 2454848.  According to Circuit Judge James A. Wynn, Jr., this was the first appellate case to take up the question whether the federal statute can be used to prosecute somebody “for an unarmed assault on a coworker engaged in commercial activity at his place of work.”  Circuit Judge G. Steven Agee argued strenuously in dissent that this application of the Hate Crimes Law exceeds Congress’s legislative authority.

Judge Wynn was appointed to the 4th Circuit by President Barack H. Obama.  Dissenting Judge Agee was appointed by President George W. Bush.  Circuit Judge Diana Gribbon Motz, who voted with Wynn, was appointed by President William J. Clinton.

The facts of the case are simple and stark.  Curtis Tibbs was at work as a “packer” in the Amazon Fulfillment Center in Chester, Virginia, on May 22, 2015, loading items from bins into boxes, scanning them and placing them on a conveyor belt to the shipping department.  The defendant, Hill, worked as a “re-binner,” moving items from conveyor belts and placing them into bins along the wall.  The incident was caught on surveillance video which shows Hill, unprovoked, approaching Tibbs from behind and repeatedly punching him in the face.  Tibbs suffered significant bruising, cuts to his face, and a bloody nose.  Tibbs went to Amazon’s in-house clinic and then to the hospital for treatment, and did not return to work during the shift.

Amazon closed down the workstation to clean up the bloody mess and redistributed work to other areas in the center.  A witness from Amazon testified at Hill’s trial that the incident did not cause Amazon to miss any “critical pull times” or packaging deadlines, and notwithstanding the brief closure of that work station and Tibbs’ absence for the balance of the shift, the fulfillment center met its normal performance as a whole for the shift.

Hill was arrested and told the police that he hit Tibbs because Tibbs is gay.  Hill said that “his personal belief is he didn’t like [homosexuals]” and that Tibbs “disrespected him because he is a homosexual,” and that Hill “does not like homosexuals so he punched him.”  (The bracketed word is supplied by the court, undoubtedly substituted for a derogatory term for gay people.)

Because Virginia’s hate crimes law does not include sexual orientation, the local prosecutor could not prosecute Hill for a hate crime, just for ordinary assault and battery.  The prosecutor decided to refer this case to the U.S. Justice Department for potential prosecution under the federal Hate Crimes Law.  The Attorney General certified, as required by the federal law, that prosecution of Hill “is in the public interest and is necessary to secure substantial justice.”  The local prosecutor dismissed state charges and a federal grand jury indicted Hill, finding, among other things, that Hill “interfered with commercial and other economic activity in which Tibbs was engaged at the time of the conduct, and which offense otherwise affected interstate and foreign commerce.”

This finding was necessary because Congress’s authority under the Constitution does not extend to ordinary criminal activity, which is generally the province of state law.  The basis of Congress’s authority for the federal Hate Crimes Act is some connection to interstate commerce, which Article I specifically authorizes Congress to regulate.  Thus, not every hate crime is subject to federal prosecution, just those that come within the sphere of the Commerce Clause by their effect on commerce between the states.  If Hill had shot Tibbs using a gun that had moved interstate, the required connection could easily be made.

Hill defended against the charges by arguing that the federal Hate Crime Law is unconstitutional both on its face and as applied to him.  U.S. District Judge John A. Gibney, Jr., focused on the “as applied” challenge, and granted Hill’s motion to dismiss the indictment, concluding that an assault by Hill using only his fists – not a weapon that had moved in interstate commerce – in the packing department of an internet retailer did not have sufficient effect on interstate commerce to come within Commerce Clause jurisdiction.

The Justice Department appealed to the 4th Circuit, which reversed, 2-1, in an unpublished opinion on August 18, 2017, stating that the question whether the Commerce Clause requirement was met required factual findings that could not be decided on a motion to dismiss but required development at trial.  The court sent the case back to Judge Gibney for trial, where a jury convicted Hill, based on the prosecution’s argument that Hill’s assault on Tibbs “interfered with commercial or other economic activity in which the victim was engaged at the time of the conduct.”

Hill filed a motion to set aside the verdict, renewing his argument that the government could not constitutionally prosecute him under the Hate Crimes Law, and again Judge Gibney agreed with him, setting aside the verdict.  The Justice Department appealed again, and the majority of the three-judge 4th Circuit panel voted to reverse the dismissal and order the district court to reinstate the verdict against Hill.

“The Government argues that, by ‘interfering’ with Tibbs’s packaging and shipping of products, Defendant’s conduct ‘substantially affected interstate commerce,’ as that phrase has been interpreted in decisions upholding federal prosecutions for robbery and extortion under the Hobbs Act, 18 U.S.C. Section 1951(a), and arson under 18 U.S.C. Section 844(i),” wrote Judge Wynn.  “We agree,” he continued, finding that Supreme Court rulings under other statutes had made clear that jurisdiction could be based on the cumulative effect of incidents that, by themselves, may not have had a significant commercial impact.

The Hobbs Act involves robberies and burglaries that affect interstate commerce.  Judge Wynn wrote that Taylor v. United States, a 2016 Supreme Court decision under the Hobbs Act, “establishes that, pursuant to its power under the Commerce Clause, Congress may proscribe violent conduct when such conduct interferes with or otherwise affects commerce over which Congress has jurisdiction.  Importantly, Congress may regulate violent conduct interfering with interstate commerce even when the conduct itself has a ‘minimal’ effect on such commerce.”  Judge Wynn reviewed in detail the Supreme Court’s rulings under several different federal criminal statutes to hammer home the point, concluding, “if individuals are engaged in ongoing economic or commercial activity subject to congressional regulation – as Tibbs was at the time of the assault – then Congress also may prohibit violent crime that interferes with or affects such individuals’ ongoing economic or commercial activity, including the type of bias-motivated assaults proscribed by the Hate Crimes Act.”

Hill’s argument turned on the clear evidence that his assault did not result in Amazon’s productivity being compromised during that shift.  Wynne responded, “That Amazon was able to absorb the impact of Tibbs’ absence without missing any key shipping deadlines and that the fulfillment center’s performance during the shift impacted by Tibbs’ assault was in-line with its performance during other shifts does not call into question this determination.  On the contrary, the Supreme Court and this Court repeatedly have clarified that congress may regulate interference with commerce, even if the effect of the interference on interstate commerce in an individual case is ‘minimal.’”

The rest of Wynn’s opinion expands in these ideas with numerous examples intended to counter Judge Agee’s dissenting arguments.

Judge Agee argued that the issue is not whether Tibbs was engaged in commercial activity at the time of the assault, but rather whether the bias-motivated “punch” in this case was “inherently economic activity,” which he argued it was not.  By comparison, burglary and arson were, in his view, inherently economic crimes, and thus their regulation when they affected interstate commerce came appropriately within Congress’s Commerce Clause power.  He also criticized Congress’s wording of the relevant statutory provision, arguing that it “does not limit the class of activities being regulated to acts that fall under Congress’s Commerce Clause power,” and thus exceeded Congress’s authority.  Judge Agee appeared to be reviving Hill’s argument that the hate crimes provision is unconstitutional on its face, not just as applied to Hill.  Judge Wynn explicitly rejected Agee’s argument that only “inherently economic activity” by a defendant could be regulated by Congress, citing examples from several cases.

The different views of Wynn and Agee are rooted in sharp differences on the Supreme Court as to the scope of the Commerce Power, which was dramatically shown by the famous decision upholding the constitutionality of the Affordable Care Act (“Obamacare”), National Federation of Independent Business v. Sebelius (2012).   Challengers of the ACA claimed that Congress did not have power under the Commerce Clause to pass a statute requiring individuals to purchase health insurance coverage.  Defending the law, the Obama Administration argued that both the Commerce Clause and the Taxing Power could support Congress’s authority, since the ACA imposed various financial requirements akin to taxes, administered by the Internal Revenue Service.   In his opinion for the Court, Chief Justice John Roberts was joined by the four Republican appointees in finding that Congress did not have power to enact ACA under the Commerce Clause, but joined by the four Democratic appointees (with the other Republican appointees dissenting), Roberts found that the Taxing Power would support the ACA.

Roberts’ Commerce Clause ruling was in line with decisions by the Supreme Court during the 1990s, under the leadership of Chief Justice William H. Rehnquist, narrowing the Court’s interpretation of Commerce Clause jurisdiction, most notably striking down a federal law banning the possession of firearms within a certain proximity to public schools and voiding a key provision of the Violence Against Women Act.

The Court’s decisions narrowing Commerce Clause jurisdiction, usually by 5-4 votes, replay a dispute of the 1930s, when a narrow view of the Commerce Clause by conservative justices was used to strike down key statutes of President Franklin Roosevelt’s New Deal, leading the president to propose expanding the membership of the Court so that he could appoint some liberal justices who would vote to uphold New Deal legislation.  While the controversial legislation was pending in Congress, one of the conservative justices changed his position and voted to uphold some important New Deal legislation, taking the wind out of the sails of Roosevelt’s “Court Packing” bill. From then until the Rehnquist Court rulings, the Supreme Court allowed wide-ranging Commerce Clause jurisdiction.

President Donald J. Trump has placed three judges on the 4th Circuit, two of whom occupy seats previously held by Bush appointees, and one by a Clinton appointee.  President Obama placed six judges on the Circuit, giving it a decided center-left tilt that has not been substantially affected by Trump’s appointments, so an en banc 4th Circuit, if Hill seeks such review, is likely to reaffirm the panel decision.

As Judge Wynn observed, this ruling is the first by a federal appeals court to deal with the arguments about jurisdictional support for the Hate Crimes Law in a case involving an assault without weapons in a workplace, and the Supreme Court usually does not grant review on a constitutional issue where there is not “split” of circuit court authority, so an attempt for Supreme Court review by Hill would most likely not be granted.  If it were, however, consideration of this case by the Supreme Court could signal trouble for survival of the Hate Crimes Act and, depending how Justice Brett Kavanaugh votes, might provide more evidence about the degree to which his appointment has moved the Court on its Commerce Clause jurisprudence.  It is worth noting, however, that the man Kavanaugh replaced, Justice Anthony Kennedy, agreed with Chief Justice Roberts’ Commerce Clause holding in the Obamacare case, so Kavanaugh’s appointment would not necessarily move the needle on the Court, assuming he would agree with Chief Justice Roberts’ Commerce Clause holding, endorse by all the Republican appointees on the Court.

Since this is a criminal prosecution of a defendant without substantial means, the case was argued by the Justice Department’s appellate branch and the federal public defender in Virginia.  But the significant of the case drew amicus briefs, including one from Lambda Legal supporting the validity of the Hate Crimes Act.

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Botswana High Court Declares Sodomy Law Unconstitutional

The High Court of Botswana ruled on June 11 that three provisions of the country’s Penal Code that collectively make soliciting or participating in gay sex a crime violate several provisions of the Constitution.  The 2.4-million person republic, a member of the British Commonwealth of Nations, is centrally situated north of the border with South Africa.  Formerly known as the British “protectorate” of Bechuanaland, it achieved independent rule in 1965 and formally became the Republic of Botswana in 1966, adopting a Constitution with broad protection for human rights.

The Government has the right to appeal the High Court ruling to the Court of Appeal, a constitutional court whose membership consists mainly of judges from other British Commonwealth countries.  However, there were no immediate press reports about the intention of the Government to appeal, and last year, President Mokgweetsi Masisi delivered a speech “publicly signaling his support for same-sex relations” and arguing that LGBTQ citizens “deserved to have their rights respected,” according to a “Country Report” by The Economist Intelligence Unit published on-line on June 13, discussing the ruling.

The case challenging the constitutionality of the gay sex ban did not arise out of a prosecution.  Rather, a courageous individual, Letsweletse Motshdiemang, represented by three local attorneys, filed an application in the High Court seeking a declaration of the invalidity of law, arguing that it violated his constitutional rights.  According to the court’s opinion by Judge Michael Leburu, the Applicant is a 24-year-old student at the University of Botswana who identifies as “homosexual.”

Leburu’s opinion, describing the Applicant’s life, stated: “He does not know why he likes men and does not know why he is different from other men who love women.  He has accepted to live with that condition and it has become his identity.  Currently, he is in a sexually intimate relationship with a man.” Since the criminal laws authorize up to seven years in prison for gay sex, filing an explicit account of his developing sexual identity was very courageous on the Applicant’s part.  Throughout the litigation he was referred to by his initials as L.M., but the court’s June 11 decision names him in full, in recognition of the liberation the opinion brings for LGBTQ Batswana.  (“Batswana” is the term for citizens of the country.)

After the Applicant filed his lawsuit, Lesbians, Gays and Bisexuals of Botswana, the nation’s LGBTQ rights organization usually referred to as LEGABIBO, was allowed to participate as amicus curiae (friend of the court) and supplied expert testimony in support of the lawsuit.

The court’s holding is well summarized by Judge Leburu in a few introductory sentences to the very lengthy opinion.  “Sections 164(a) and (c) and 165 of the Penal Code proscribe and criminalize sexual intercourse and/or attempt thereof between persons of the same sex and/or gender,” he wrote.  “Section 167 proscribes both public and private gross indecency.  What regulatory joy and solace is derived by the law, when it proscribes and criminalizes such conduct of two consenting adults, expressing and professing love to each other, within their secluded sphere, bedroom, confines and/or precinct?  Is this not a question of over-regulation of human conduct and expression, which has a tendency and effect of impairing and infringing upon constitutionally ordained, promised and entrenched fundamental human rights?  Our bill of rights, as entrenched and enshrined in our Supreme Law (the Constitution), is a manifestum of progressive, long lasting and enduring rights, which yearn for judicial recognition and protection.  Any limitation, in the enjoyment of such rights, therefore, ought to be reasonably justifiable within our hallowed democratic dispensation that subscribes to the rule of law, which recognizes and protects both the majority and minority rights and interests.”

A potential roadblock to victory in the case was a 2003 decision by the Court of Appeal, Kanane v. The State, which involved an actual prosecution of a gay man who appealed his conviction.  At that time, the Court of Appeal expressed the view that the country was not ready to accept homosexuality.  The new decision rejects Kanane, largely on the ground of changing public opinion and a variety of new constitutional arguments that had not been presented to the court in the older case.

Judge Leburu’s opinion emphasizes that the challenged laws were not of African origin, but rather were imported by the British during their administration of Bechuanaland, and were merely carried forward into the Botswana Penal Code during the 1960s as part of a general absorption of existing colonial law.  He also explained that the British laws were “traceable to the Bible,” recounting the story of Sodom and Gomorrah and its traditional interpretation “during the Middle Ages” as a condemnation of gay sex, as amplified in certain New Testament passages.  “Within the British Empire,” he wrote, “same sex activity was prohibited as it was deemed morally unacceptable to the British rulers.  In the incorporation of the offence of sodomy in the colonies, such was not preceded by any consultation with the local populace.”

Judge Leburu noted subsequent developments in Britain, culminating with the parliamentary committee headed by Lord Wolfenden, whose report recommending decriminalization was approved in the 1967 Sexual Offenses Act “which decriminalized same sex sexual intercourse,” noting the spread of decriminalization, either through legislation or judicial action, in countries which had at one time been British colonies, including South Africa and the United States.

“The repeal of the sodomy laws was greatly influenced, in large measure, by the inherent recognition of such laws as being discriminatory, invasive of personal dignity, privacy, autonomy, liberty and lastly, the absence of compelling public interest to intrude and regulate private sexual expression and intimacy between consenting adults,” wrote Leburu.

One defining characteristic of judicial decisions of major importance in British Commonwealth countries is the practice of extensive quotation from court opinions of other Commonwealth nations, and Leburu’s opinion is strewn with such quotations, including from the recent Supreme Court of India ruling striking down that nation’s sodomy law, which had also been imposed originally during British colonial rule.  The opinion also refers to the U.S. Supreme Court decision, Lawrence v. Texas, which struck down state sodomy sodomy laws in 2003, as well as rulings from South Africa and Canada.

The opinion decisively rejects narrow, literalistic constitutional interpretation, instead embracing the court’s role in developing constitutional interpretation for changing times.  “In construing the Constitution,” Leburu wrote, “I will accord and give meaning and interpretation which would render it effective.  The Constitution should thus be given a generous construction, which will not unjustifiably erode civil liberties.  A Constitution ought to be interpreted according to the imperatives of the prevailing socio and political context.”  He also insisted that the courts should “have regard to any relevant international treaty, agreement or convention,” and listed several that have been invoked by other courts in cases invalidating sodomy laws.

At the outset of his analysis, he rejected the Applicant’s argument that the statues were “void for vagueness,” as judicial interpretation over time had made clear which acts were prohibited.  However, on every other contention, he found that the Applicant had the better argument than the Government, finding valid claims under the right to privacy (which is explicitly protected in the Botswana Constitution) and constitutional guarantees of liberty, equality and dignity.  He referred to these guarantees as a “triumvirate” that “forms the core values of our fundamental rights, as tabulated and entrenched in Section 3 of the Constitution.”  He explained how the challenged laws violate each of these basic concepts.

In a phrase that was widely quoted in news reports about the opinion, Leburu wrote, “Sexual orientation is innate to a human being.  It is not a fashion statement or posture.  It is an important attribute of one’s personality and identity; hence all and sundry are entitled to complete autonomy over the most intimate decisions relating to personal life, including the choice of a partner.  The right to liberty therefore encompasses the right to sexual autonomy.”  His reference for this statement is to a South African Law Journal article from 1993 by Edwin Cameron, an out gay man who has served as a judge on South Africa’s Constitutional Court.  The opinion also quotes from writings of Michael Kirby, an out gay man who has served on Australia’s Supreme Court and also on Botswana’s Court of Appeal.

“By parity of reasoning and logic,” wrote Leburu, “the Applicant’s sexual orientation lies at the heart of his fundamental right to dignity.  It is his way of expressing his sexual feelings, by the only mode available to him. His dignity ought to be respected, unless lawfully restricted.”

Turning to the issue of discrimination, Leburu rejected the government’s argument that because the law was gender neutral and prohibited everybody from engaging in anal sex – the traditional interpretation of the “unnatural acts” language used in British colonial-era sodomy laws – it was not discriminatory.  Referring to arguments presented by LEGABIBO as amicus, Leburu wrote that “the nub and substance of the amicus case is that the provisions are discriminatory in effect, by denying him sexual expression and gratification, in the only way available to him, even if that way is denied to all.”  Heterosexuals have a legal sexual outlet, while homosexuals do not.

“It was further submitted,” he wrote, “that the word ‘sex’ in Section 3 of the Constitution should be generously and purposively interpreted to include ‘sexual orientation.’  On the basis of the formulated rules of constitutional construction or interpretation, I have no qualms whatsoever in determining that the word ‘sex’ in Section 3 thereof is generously wide enough to include and capture ‘sexual orientation,’ as I hereby determine.”  He referred to an earlier Court of Appeal ruling stating that the “enumerated grounds of discrimination” in the Constitution, which include “sex,” were “not hermetically sealed nor cast in stone.” This was because the framers of the Constitution intended to protect “all potentially vulnerable groups and classes, who would be affected for all time by discriminatory treatment.”  That earlier decision set out a view of living constitutionalism, contrary to “static” constitutional meaning championed in the United States by Justice Clarence Thomas and the late Justice Antonin Scalia.

Furthermore, he wrote, “To buttress and fortify this amplification and expansion of the word ‘sex,’ our Parliament has, in its graceful and usual wisdom, recognized that there may be discrimination, at the workplace, on account of sexual orientation, as shown by the Employment (Amendment) Act No. 10 of 2010, which amendment made it unlawful to terminate employment on the grounds of, inter alia, sexual orientation and gender, per Section 23(d).”  Thus, ironically, Botswana made it illegal to discriminate because of sexual orientation nine years ago, without repealing the laws against gay sex.

“The two forms of discrimination — namely sex and sexual orientation — are associable signifiers of a similar scope and content,” he continued.  “The constitutional discrimination, based on sex, is of wider scope and application, where discrimination based on sexual orientation, in the Employment (Amendment) Act, is of a narrower campus.  ‘Sexual orientation’ is thus subset or component of ‘sex.’”  He cited a United Nations Human Rights Committee ruling condemning the sodomy law in the Australian state of Tasmania to support this point, ruling under the International Covenant on Civil and Political Rights which, Leburu observed, Botswana had ratified in 2000.  And, he accepted the argument that the facially neutral laws are discriminatory in effect, and thus unconstitutional since unjustified by the Government.

Referring to the Government’s arguments, he wrote, “There is no scintilla or iota of justification, advanced for the derogation [of rights] in question  The only answer placed at the fore is that the impugned sections are not discriminatory, but, a contrario, this court has found otherwise.  The Respondent’s semblance of justification, can best be described as bare assertions and/or speculations that sexual anal penetration is contrary to public morality or public interest,” but such was not sufficient to justify violating a fundamental right.

Leburu then examined the morality argument in the absence of expert testimony from the Government.  “Even if the Respondent’s public interest or morality justification was to be subject to the criterion of ‘reasonable and justifiable in an open democratic society,’” he wrote, “such justification does not pass constitutional muster. The test of what is reasonably justifiable in a democratic society, is an objective one.  There is nothing reasonable and justifiable by discriminating against fellow members of our diversified society.  The State has failed to single out the objective that is intended to be satisfied by the impugned provisions.”

Furthermore, he noted that maintaining these laws was inconsistent with goals that had been identified in a nation-building exercise, called Botswana National Vision 2016, which included to be “A Compassionate, Just and Caring Nation,” and aspiring to be “an Open, Democratic and Accountable Nation” and “A Moral and Tolerant Nation.”  “To discriminate against another segment of our society pollutes compassion,” he insisted.  “A democratic nation is one that embraces plurality, diversity, tolerance and open-mindedness.  Democracy itself functions, so long as the differences between groups do not impair a broad substrate of shared values.  Our shared values are as contained in our National Vision.  Furthermore, the task of laws is to bring about the maximum happiness of each individual, for the happiness of each will translate into happiness for all.”

The opinion continues in this vein of somewhat high-flown rhetoric for several pages, concluding that the unnatural sex provisions should be stricken, and that the gross indecency provision (which had customarily been used to punish people for engaging in oral sex) should be limited to public acts, the word “private” to be stricken from the provision.  The court also ordered that the Government pay the Applicant’s costs of the litigation.

The courtroom in Gabarone, the nation’s capital, was crowded with LGBTQ activists when the opinion was announced by Judge Leburu, leading to an exuberant celebration.  Among those congratulating Botswana was the United States Department of State.  According to a June 13 report by Agence France Presse English Wire, State Department spokeswoman Morgan Ortagus, using the preferred method of governmental communication during the Trump Administration, tweeted: “We are pleased by #Botswana’s High Court decision to decriminalize same-sex relationships – an historic moment in protecting human rights for all.  Congrats to the brave people who worked for this outcome.  We hope other countries follow Botswana’s example.”

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Washington State Supreme Court Unanimously Reaffirms Liability of Florist Who Refused Flowers for a Same-Sex Wedding

The nine-member Washington State Supreme Court refused on June 6 to back down from its earlier decision that Barronelle Stutzman and her business, Arlene’s Flowers, Inc., violated the state’s anti-discrimination and consumer protection laws on February 28, 2013, when she told Robert Ingersoll that she would not provide floral arrangements for his wedding to Curt Freed.  The court also ruled that Stutzman had no constitutional privilege to violate the state’s anti-discrimination law based on her religious beliefs.  State of Washington v. Arlene’s Flowers, Inc., 2019 Wash. LEXIS 333, 2019 WL 2382063.

The Washington Law Against Discrimination (WLAD) prohibits sexual orientation discrimination in public accommodations, and the people of Washington voted in a referendum in 2012 to overrule a 5-4 adverse decision by their state supreme court and allow same-sex couples to marry.

Stutzman quickly announced that she would attempt to appeal the new ruling to the U.S. Supreme Court, which for several months has been pondering whether to grant review in another “gay wedding cake” case, from Oregon. She rejects the court’s opinion that that the Washington courts had “resolved this dispute with tolerance,” according to Justice Sheryl Gordon McCloud’s opinion for the unanimous court.

The Washington court originally ruled on this case on February 16, 2017,see 167 Wash. 2d 804, but Alliance Defending Freedom (ADF), the anti-gay litigation group representing Arlene’s Flowers, petitioned the U.S. Supreme Court to review the case, arguing that the state was violating Stutzman’s First Amendment rights of free exercise of religion and freedom of speech.  That petition reached the Supreme Court while it was considering the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission, the “gay wedding cake” case.

The U.S. Supreme Court had been asked in Masterpiece to reverse rulings by the Colorado Court of Appeals and the Colorado Civil Rights Commission, which had ruled that baker Jack Phillips violated the state’s anti-discrimination law by refusing to make a wedding cake for a same-sex couple.  Phillips argued on appeal that his 1st Amendment rights to free exercise of religion and freedom of speech were unconstitutionally violated by the state proceedings.  The Supreme Court ruled, in an opinion by Justice Anthony Kennedy, that the Colorado Civil Rights Commission had not provided Phillips with a respectful, neutral forum to consider his religious freedom claim.  See 138 S. Ct. 1719 (2018).  The Court reversed the Colorado court and commission rulings on that basis, focusing particularly on comments made by Commission members during the public hearing in the case, as well as the fact that at the time Phillips rejected the business, Colorado did not allow same-sex weddings so Phillips could have thought that he was not obligated to provide a wedding cake for such an event.  The Court did not rule directly on Phillip’s constitutional claims of privilege to violate the anti-discrimination statute, although it observed that in the past it had not accepted religious free exercise defenses to discrimination charges.

The Masterpiece decision was announced on June 4, 2018.  On June 6, ADF filed a Supplementary Petition with the Supreme Court, arguing that the case should be sent back to the Washington Supreme Court for “reconsideration” in light of Masterpiece.  In various different lawsuits, ADF has been trying to “spin” Masterpiece Cakeshop as what it is not: a decision that businesses have a 1st Amendment right to refuse to provide goods or services for same-sex weddings.  In its Supplementary Petition to the Court, however, reacting to the Court’s Masterpiece opinion, ADF asserted that Stutzman, like Colorado baker Jack Phillips, had been subjected to a forum that was “hostile” to her religious beliefs.

The U.S. Supreme Court granted ADF’s request, vacating the Washington Supreme Court’s 2017 decision and sending the case back with instructions to “further consider” the case “in light” of Masterpiece Cakeshop. The Washington court took exactly a year from the date of ADF’s Supplementary Petition to produce a lengthy decision explaining why there was no reason to change its original decision.

The Washington court was flooded with amicus briefs, as the U.S. Supreme Court had been, as many saw this as the next major “culture wars” case around the issue of same-sex marriage and religious exemptions from anti-discrimination laws

After Stutzman told Ingersoll, a longtime customer of her business, she would not sell him flowers for his wedding, his fiancé, Freed, put up an indignant post on his Facebook page and the story went viral, quickly drawing the attention of the Attorney General’s office, which sent Stutzman a letter, asking for her to agree in writing not to discriminate against customers based on their sexual orientation.  She has argued throughout the case that she did not discriminate based on sexual orientation, as she had happily sold Ingersoll flowers in the past and would do so in the future, but not for a same-sex wedding due to her religious belief that marriage was only between a man and a woman.  When Stutzman refused to sign the statement requested by the letter, the Attorney General filed suit in Benton County Superior Court.  Several days later, Ingersoll and Freed filed their own lawsuit, represented by the ACLU of Washington, and the cases were consolidated by the court, which ruled against Stutzman on February 18, 2015.

Justice McCloud explained the Washington Supreme Court’s understanding of the holding of the U.S. Supreme Court in Masterpiece: “In Masterpiece Cakeshop, the Supreme Court held that the adjudicatory body tasked with deciding a particular case must remain neutral; that is, the adjudicatory body must ‘give full and fair consideration’ to the dispute before it and avoid animus toward religion.  Disputes like those presented in Masterpiece Cakeshop and Arlene’s Flowers ‘must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.’”

Under this standard, wrote McCloud, there was no basis for the Washington court to change its opinion.  “We have painstakingly reviewed the record for any sign of intolerance on behalf of this court or the Benton County Superior Court, the two adjudicatory bodies to consider this case,” she wrote.  “After this review, we are confident that the two courts gave full and fair consideration to this dispute and avoided animus toward religion.”

Because the Supreme Court had vacated the earlier decision, however, the court’s new opinion incorporates its entire analysis from the earlier decision.  In a footnote, Justice McCloud wrote, “The careful reader will notice that starting here, major portions of our original (now vacated) opinion are reproduced verbatim.”

However, the opinion also responds to arguments that ADF tried to make building on Masterpiece, attempting to persuade the court that Stutzman was sued because of hostility to her religious beliefs by the Attorney General.  The court refused to take the bait.  McCloud wrote, “Apparently realizing the limits of Masterpiece Cakeshop, appellants attempt to stretch its holding beyond recognition and to relitigate issues resolved in our first opinion and outside the scope of Masterpiece Cakeshop.  We reject this attempt and instead comply with the Supreme Court’s explicit mandate to ‘further consider’ our original judgment ‘in light of Masterpiece Cakeshop.’”

Consistent with that, the court denied motions by both ADF and the Attorney General’s office to supplement the record, finding that the additional materials being offered to the court were not relevant to the task it had been set by the Supreme Court.

ADF was trying to make something of an entirely unrelated incident that occurred while this case was pending, when it was reported that the owner of a café in Seattle had “expelled a group of Christian customers visiting his shop” but that despite publicity to the incident the Attorney General had not taken any action against the owner of the café.  ADF sought to draw an analogy to an incident Justice Kennedy relied upon in concluding that the Colorado Civil Rights Commission was hostile to religion.  The Commission had refused to proceed against several Colorado bakers who had rejected an order from a provocateur named William Jack, who sought to order cakes inscribed with anti-gay symbolism.  “The crux of appellants’ argument is that the attorney general sought to enforce the WLAD in the case before us but not in the incident at the coffee shop,” wrote McCloud, “revealing ‘hostility towards Mrs. Stutzman’s beliefs.’”

The Washington court agreed with Ingersoll and Freed, who argued that the attorney general’s response to the coffee shop incident was irrelevant.  That was a prosecutorial decision, not an adjudicatory decision.  “As discussed above,” wrote McCloud, ‘the Supreme Court in Masterpiece Cakeshop held that the adjudicatory body tasked with deciding a particular case must remain neutral. That Court was explicitly sensitive to the context in which the lack of neutrality occurred: during the adjudication by the adjudicatory body deciding the case.”  The Attorney General here was acting as attorney for a party in the case – the state of Washington – and not as an adjudicator.

“It would take a broad expansion of Masterpiece Cakeshop to apply its holding – that the adjudicatory body hearing a case must show religious neutrality – to a party.  That is especially true here, where the party supposedly exhibiting antireligious bias is Washington’s attorney general,” wrote McCloud.  “By arguing that Masterpiece Cakeshop’s holing about adjudicatory bodies applies to the attorney general’s enforcement decision, appellants essentially seek to revive their selective-enforcement claim, a claim that was rejected by the superior court, and abandoned on appeal.”

The court pointed out that prosecutorial discretion leaves it to the judgment of prosecutors deciding which cases to bring. “Courts are wary to question a prosecutor’s decision of which claims to pursue and thus generally ‘presume that prosecutors have properly discharged their official duties.’”  The court rejected ADF’s seeming argument that selective enforcement claims implicating free exercise of religion defenses should not be subjected to the same “demanding standard to which all other selective-enforcement claims are subject.”

The court also pointed out that because this is a consolidation of two cases, ADF’s argument is beside the point, since it has nothing to do with plaintiffs Ingersoll and Freed.  A “selective enforcement” claim has no relevance to a lawsuit brought by private individuals who are victims of discrimination.

Most of the court’s opinion, however, was devoted to restating the legal analysis from its 2017 decision, finding that the First Amendment and Washington state constitutional provisions did not provide a shield for Stutzman against the discrimination charges.  Interestingly, the Washington courts have found that their state constitution provides greater protection for free speech and free exercise of religion than the U.S. Supreme Court has found in the 1st Amendment, but even under those more demanding standards, the court rejected Stutzman’s state constitutional defenses.  The state has a compelling interest to prevent discrimination by businesses, reiterated the court.

“Discrimination based on same-sex marriage constitutes discrimination on the basis of sexual orientation,” McCloud concluded.  “We therefore hold that the conduct for which Stutzman was cited and fined in this case – refusing her commercially marketed wedding floral services to Ingersoll and Freed because theirs would be a same-sex wedding – constitutes sexual orientation discrimination under the WLAD.  We also hold that the WLAD may be enforced against Stutzman because it does not infringe any constitutional protection.  As applied in this case, the WLAD does not compel speech or association.”  And, even if the court assumed that application of the WLAD “substantially burdens Stutzman’s religious free exercise,” that did not violate the First Amendment or the analogous provision of the Washington constitution, “because it is a neutral, generally applicable law that serves our state government’s compelling interest in eradicating discrimination in public accommodations.”

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