New York Law School

Art Leonard Observations

Trump Administration’s 11th Hour Attempt to Restrict Refugee Claims Blocked by Federal Court

The Trump Administration’s last-minute rulemaking on refugee law hit a roadblock on January 8 when a federal district court in San Francisco granted a request from organizations that represent refugees to issue a nation-wide preliminary injunction that will stop the rule from going into effect as scheduled on January 11.  District Judge James Donato found that the plaintiffs are likely to prevail on their claim that “Acting” Secretary Chad Wolf of the Department of Homeland Security (DHS) did not have the authority to approve the rule because he was not validly appointed to that position.  The court will schedule a hearing soon to consider the plaintiffs’ further argument that the rule violates the Administrative Procedure Act and is inconsistent with federal immigration statutes and treaty obligations.  Pangea Legal Services v. U.S. Dept. of Homeland Security, No. 20-cv-09253-JD; Immigration Equality v. U.S. Dept. of Homeland Security, No. 20-cv-09258-JD.

The federal Immigration and Nationality Act authorizes asylum in the United States for any foreign national found to be a “refugee,” which includes any person who cannot return to their home country “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”  Determining who qualifies as a refugee is up to the Secretary of Homeland Security or the Attorney General.  During the Clinton Administration, Attorney General Janet Reno formally signified that people who suffered persecution on account of their sexual orientation could be considered members of a “particular social group” and since then many LGBTQ people have been awarded asylum in the United States, which allows them to live and work here, to travel abroad and to return.  Those who do not qualify for asylum may avoid being removed from the U.S. by showing that their “life or freedom would be threatened” in their home country “because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion,” a status referred to as “withholding of removal.”

In addition, the United States is a party to the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.  No party to the treaty “shall expel, return or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subject to torture.”  In some cases, LGBT petitioners have been able to claim protection under this Treaty due to the severe mistreatment of LGBTQ people in their home countries.

As part of its general policy of reducing the flow of people from other countries into the United States, the Trump Administration has promulgated a variety of policies formally approved by Chad Wolf, all of which are under attack in the courts.  Last June 15, DHS and the Justice Department published a notice of proposed rulemaking in the Federal Register, purporting to establish new rules intended to “streamline” the process of dealing with refugee applicants.  As usual with this Administration, “streamline” is a euphemism for sharply restricting the ability of people to qualify as refugees.

Most harmful for LGBTQ applicants is that the rule would eliminate all gender-based refugee claims, would drastically tighten the list of circumstances under which somebody who came to the U.S. without a visa issued by the State Department could claim refugee status and seek to remain here, and would apparently do away with the class of situations where the persecution is perpetrated by non-governmental actors.  Despite the complexity of the proposed rules, which took up 43 pages of small-type text in the Federal Register, only 30 days were given for public comment.  Judge Donato notes that over 87,000 comments were submitted “and they overwhelmingly opposed the proposed rule, often with detailed reasoning and analysis.”

Despite the flood of adverse comments, DHS and DOJ published a final rule in the Federal Register on December 11 that is “substantially the same” as the June 15 proposed rule, and set it to go into effect in one month.  The plaintiffs in this case promptly filed their lawsuits, two of which are combined before Judge Donato.  Immigration Equality, an LGBT rights organization, is one of the lead plaintiffs, with Lambda Legal and private attorneys helping to litigate the case.  The plaintiffs promptly filed a motion to stop the new rule from going into effect while the litigation proceeds.

In granting the motion, Judge Donato described the odd way the Trump Administration failed to comply with established procedures for designating the Secretary of DHS.  By statute, the DHS Secretary is to be nominated by the President and confirmed by the Senate, but the last person confirmed by the Senate, Kirstjen Nielsen, resigned effective April 10, 2019, and no new Secretary has been confirmed.  Under existing rules, Christopher Krebs, the Director of Cyber Security and Infrastructure Security, was supposed to become “Acting Secretary” and the President was to send the Senate a nomination for a new Secretary to be confirmed.  Trump has frequently stated his preference for “Acting” people to head agencies so he could quickly fire them if necessary.  Trump tweeted out a statement bypassing the usual procedures, stating that Kevin McAleenan, the Commissioner of Customs and Border Protection, would be the “Acting Secretary.”  Since this was not in accord with the succession plan spelled out in a 2016 Executive Order, McAleenan’s appointment was arguably not valid.  McAleenan then adopted a succession plan in November 2019 that effectively made Chad Wolf his successor when McAleenan resigned.  Since McAleenan was not legally in his position, he did not have the authority to do this, so Wolf’s appointment is also likely invalid.

Since a new regulation requires the approval of the Secretary and there is no validly appointed Secretary of DHS, the plaintiffs have a strong argument that the regulation was not validly promulgated and cannot take effect.  At least, Judge Donato concluded, they are likely to prevail on this point when the court reaches the merits of the case.  For purposes of deciding on issuing the preliminary injunction that is all he had to decide, putting off to later the plaintiffs’ argument that the regulation is inconsistent with the statute and the country’s treaty obligation.

Judge Donato was scathing in describing the Justice Department’s attempt to justify Wolf’s authority in the face of four previous adverse decisions by federal courts.  The government filed appeals of three of those rulings but withdrew two of the appeals and one is still pending.  “This Court is now the fifth federal court to be asked to plow the same ground about Wolf’s authority vel non to change the immigration regulations,” he commented.  “If the government had proffered new facts or law with respect to that question, or a hitherto unconsidered argument, this might have been a worthwhile exercise.  It did not.”  To the judge’s apparent astonishment, the government’s attorney at the hearing on this motion, August Flentje, just argued that the prior court rulings were “wrong, with scant explanation,” which Donato characterized as a “troubling strategy.  In effect, the government keeps crashing the same car into the gate, hoping that someday it might break through.”

“A good argument might be made, at this point in time, the government’s arguments lack a good-faith basis in law or fact,” continued Donato, but he concluded it was unnecessary for him to make such a drastic finding, since his own review of the record indicates that “the latest decision before this order correctly identified and analyzed the salient points vitiating Wolf’s claim of rulemaking authority, and the Court agrees with it in full.”

This case shows the Trump Administration’s general contempt for the federal judiciary, especially (but not only) when a judge appointed by President Barack Obama (such as Judge Donato) is hearing the case.  Judge Donato found that letting the rule go into effect would irreparably harm the plaintiff organizations in their missions to represent asylum seekers, and that the balance of hardship between the plaintiffs, the government, and the public interest all tilted in favor of issuing the injunction.

Once a final regulation has been published in the Federal Register, it cannot be simply withdrawn by the next Administration, but this preliminary injunction will give breathing room for the Biden Administration’s incoming DHS and DOJ leadership to put the wheels in motion under the Administrative Procedure Act to terminate or replace it, if the court doesn’t dispose of it first by issuing a final ruling on the merits that it was invalidly promulgated.  Issuing the preliminary injunction was a promising first step.

Among the attorneys working on the case are Immigration Equality Legal Director Bridget Crawford and Executive Director Aaron Morris, Lambda Legal attorneys Jennifer C. Pizer, Omar Gonzalez-Pagan and Richard Saenz, and cooperating attorneys Jeffrey S. Trachtman, Aaron M. Frankel, Chase Mechanik, Jason M. Moff and Austin Manes from the law firm Kramer Levin Naftalis & Frankel LLP.

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Nevada Supreme Court Holds Obergefell Requires Retroactive Recognition of Out-of-State Same-Sex Marriages (but Not Civil Unions) for Community Property Purposes

The Supreme Court of Nevada unanimously ruled on December 23 that the U.S. Supreme Court’s decision in Obergefell v. Hodges, 576 U.S. 644 (2015), must be applied retroactively in determining the commencement date of the marital “community” for purposes of dividing assets in a divorce, but such constitutionally-demanded retroactivity extends only to marriages, not to civil unions.  LaFrance v. Cline, 2020 WL 7663476, 2020 Nev. Unpub. LEXIS 1209.

Mary Elizabeth LaFrance and Gail Cline, Nevada residents, went to Vermont to have a civil union ceremony in 2000, returning home to Nevada.  In 2003, when same-sex marriage became available in Canada, they went there and got married, then returned to their home in Nevada.  In 2014, they decided to break up their marriage and filed for judicial dissolution.  That was the year that a lawsuit brought marriage equality to Nevada, in Latta v. Otter, 771 F.3d 456 (9th Cir. 2014).  Nevada is a community property state, and it became necessary for the trial court to decide what property and assets were part of the “community” for purposes of division of assets.  Responding to LaFrance’s argument as of 2018 when the Clark County 8th Judicial District Court had to decide, Judge Mathew Harter concluded that pursuant to Obergefell he should find that the community came into effect when the parties entered into their civil union in 2000, and divided property accordingly.  LaFrance appealed, contending that for purposes of Nevada law, their marital community didn’t come into effect until the Latta decision in 2014.

The Nevada Supreme Court decided that both parties were incorrect.  Under Nevada law as of the time the petition for dissolution was filed, a civil union from Vermont could be recognized for these purposes but only if the parties had registered their civil union as a domestic partnership with the Nevada Secretary of State, and these women had not done so.  Thus, the court held in an opinion by Chief Justice Kristina Pickering, Judge Harter erred in dating the community from 2000.

On the other hand, the court ruled, the 2003 Canadian marriage should be deemed the date when the community was formed.  Even though it was not recognized in Nevada at that time, the court found that it must be retroactively recognized pursuant to Obergefell.

“In 2015, before the parties’ divorce was finalized, the United States Supreme Court decided Obergefell,” wrote Chief Justice Pickering.  “The Court in Obergefell held that ‘the right to marry is a fundamental right,’ and that each state must ‘recognize a lawful same-sex marriage performed in another State.’  Although the Supreme Court has not opined on the retroactive effects of its Obergefell holding, the Supreme Court has ‘recognized a general rule of retrospective effect for [its] constitutional decisions,’” citing Harper v. Virginia Department of Taxation, 509 U.S. 86, 94 (1993).  Since the parties’ divorce was not finalized until after Obergefell was decided, the court concluded that “the Supreme Court’s constitutional decision in Obergefell, requiring states to recognize same-sex marriages, applies retroactively to the parties’ 2003 Canadian marriage.”  Thus, 2003 is the commencement date for the marital community.

LaFrance protested that this was unfair, arguing that she and Cline had been operating all those years under the assumption that they did not have any legal rights as a couple in Nevada throughout the period of their Canadian marriage.  (Recall that Latta was not decided until the year they initiated their divorce proceedings, the year prior to Obergefell.)  No matter, said the court.  “Nevada must credit the parties’ marriage as having taken place in 2003 and apply the same terms and conditions as accorded to opposite-sex spouses.  These conditions include a presumption that any property acquired during the marriage is community property, NRS 123.220, and an opportunity for spouses to rebut this presumption by showing by clear and certain proof that specific property is separate.”

Thus, the property division issue was remanded to Judge Harter “to apply community property principles, including tracing, to the parties’ property acquired after their 2003 Canadian marriage.”

Justice Abbi Silver recused herself from the case voluntarily.  The version of the opinion issued on Westlaw and Lexis as of the end of December did not list counsel for the parties.

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N.Y. Appellate Division 2nd Department Overrules Precedent, Holding False Imputation of Homosexuality is not Defamatory Per Se

In Laguerre v. Maurice, 2020 WL 7636435, 2020 N.Y. App. LEXIS 8011, 2020 NY Slip Op 07887 (2nd Dept., Dec. 23, 2020), a panel of the N.Y. Appellate Division, 2nd Department, abandoned a departmental precedent dating from 1984, Matherson v. Marchello, 100 App. Div. 2d 233, finding that today a false statement that the plaintiff was a homosexual who watched gay porn on his employer’s computer is not defamatory per se and thus a complaint to that effect must be dismissed for failure to allege special damages.  The court noted with approval the 3rd Department’s 2012 decision in Yonaty v. Mincolla, 97 App. Div. 3d 144, which was the first intermediate appellate ruling in New York to abandon prior case law on this point.  Justice Sheri Roman wrote the opinion for the panel.

Pierre Delor Laguerre was an elder in the Gethsemane Seventh Day Adventist Church in Brooklyn.  He claims that he had a falling out with Pastor Jean Renald Maurice, the defendant, which, according to Justice Roman’s summary, “initially centered around church-related issues, and that Pastor Maurice stated that, if the plaintiff ‘did not submit to him,’ Pastor Maurice would ‘crumble’ the plaintiff.”  According to the complaint, Maurice stated that he would “make false statements against the plaintiff and have the church membership vote to relieve the plaintiff of his responsibilities at the church.”  Laguerre claims that before a congregational meeting with about 300 members in attendance, Maurice made the false statement concerning Laguerre, thus prompting the congregation to vote as Maurice requested.  Laguerre is for per se defamation.

Pastor Maurice moved to dismiss the complaint on three grounds.

First, he argued, the court lacked jurisdiction because this was essentially an ecclesiastical matter.  Laguerre countered that the question of defamation could be decided as a matter of civil law without reference to any religious doctrine, and the trial judge, Justice Devin P. Cohen of Kings County Supreme Court, agreed with Laguerre’s argument on this point and denied the motion to dismiss on jurisdictional grounds, and the Appellate Division panel found this ruling to be correct.

Second, Maurice argued that his statement was privileged under the “common interest” rule, contending that a communication from a pastor to a congregation on a church-related matter could not be made the basis of a defamation claim.  While acknowledging the existence of the privilege, Justice Cohen found that Laguerre’s allegations support the argument that the privilege was lost in this case because the statement was made with “malice,” noting Laguerre’s allegation that Pastor Maurice had threatened to make a false statement about Laguerre to persuade the congregation to terminate his status.  Knowingly making a false statement of fact with malice is not privileged.  The appellate panel also found this ruling to be correct.

However, Pastor Maurice was more successful with his third argument on appeal, that the alleged statement was not defamatory per se.  Laguerre’s complaint relies on Matherson v. Marchello, cited above, to contend that in the 2nd Department a false imputation of homosexuality is automatically actionable as per se defamation.  That is, in ruling on a motion to dismiss, a trial court in the 2nd Department should presume that such a statement would harm the reputation and livelihood of the plaintiff, so the plaintiff would not have to allege special damages such as economic injury in order to maintain his action.  At the time Matherson was decided, there were rulings by all four Appellate Departments to similar effect.  However, the 3rd Department broke ranks in 2012 with Yonaty.  The Court of Appeals has not ruled on the question, so the matter is left to be decided by each Appellate Division department.  Given the state of precedent in the 2nd Department, Justice Cohen had denied the motion to dismiss on this ground as well.  Laguerre appealed Cohen’s decision on all three grounds.

Finding the reasoning of Yonaty to be persuasive, the 2nd Department now holds that Matherson and the earlier cases that it had cited “are inconsistent with current public policy,” wrote Justice Roman.  “This profound and notable transformation of cultural attitudes and governmental protective laws impacts our own consideration of stare decisis,” she wrote.  The court recited a litany of legal developments since 1984, particularly noting the Supreme Court’s 2003 decision in Lawrence v. Texas striking down as unconstitutional a Texas statute outlawing homosexual sex and that court’s 2015 decision in Obergefell v. Hodges finding a constitutional right for same-sex couples to marry.  The court also noted that New York has banned sexual orientation discrimination in employment, housing and public accommodations since 2002 and enacted its own marriage equality law in 2011.

Thus, there is today no necessary presumption that falsely calling somebody homosexual will harm their reputation, and such a statement no longer falls within the sphere of cases in which reputational harm can be assumed on ground of criminality, professional disqualification or the imputation of a “loathsome illness.”  A false statement that does demonstrably cause economic harm to the plaintiff could still be the basis of a defamation claim, but such harm would have to be alleged and factually supported in the complaint.  Although the court does not discuss the point, it seems likely that being an elder in the church did not make Laguerre an employee and so the loss of his position did not inflict an economic injury on him; otherwise, he might have alleged that as special damages.

“Based on the foregoing,” wrote Justice Roman, “we conclude that the false imputation of homosexuality does not constitute defamation per seMatherson’s holding to the contrary should no longer be followed.  Therefore, the plaintiff was required to allege special damages.  He failed to do so, and, consequently, his cause of action alleging defamation per se must be dismissed.”

The unanimous panel of the 2nd Department in this case included, in addition to Justice Roman, Justices Cheryl E. Chambers, Sylvia O. Hinds-Radix, and Colleen D. Duffy.  Laguerre is represented by Maurice Dean Williams of The Bronx, and Pastor Maurice by the firm of Lester Schwab Katz & Dwyer of Manhattan.

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Federal Court Issues Preliminary Injunction against Trump’s Anti-Diversity Training Executive Order

A federal court in San Jose, California, issued a preliminary injunction on December 22 against enforcement of two key provisions of President Donald Trump’s Executive Order 13950, which prohibits the Defense Department, civilian federal agencies, federal contractors and grant recipients from carrying out diversity and inclusion training programs that include concepts offensive to President Trump. District Judge Beth Labson Freeman found that the plaintiffs, a group of LGBT and AIDS organizations that provide such training to their staffs and to other organizations, had standing to challenge the portions of the Order that are applicable to their activities on 1st and 5th Amendment grounds and were sufficiently likely to be successful that they were entitled to a preliminary injunction while the case is pending.  Santa Cruz Lesbian and Gay Community Center v. Trump, Case No. 20-cv-07741-BLF (N.D. Cal., San Jose Div., Dec. 22, 2020).
Trump signed his Executive Order on September 22, a few weeks after the federal Office of Management & Budget (OMB) had issued a similar memorandum to federal agencies on “Training in the Government,” warning against agencies conducting diversity training that includes concepts that Trump had disapproved in a prior internal executive branch directive. The memo described as “divisive, un-American propaganda training sessions” any activities that would relate to such subjects as “critical race theory,” “white privilege,” or any suggestion that the U.S. is “an inherently racist or evil country.” In short, the memo, and the subsequent Executive Order, paints a cartoonish and exaggerated picture of the kind of diversity training sessions that have become widespread through both the private and public sectors in recent years, responding to an expanding professional literature about unconscious bias and implicit racism and sexism.
The Executive Order targets diversity training in the armed forces (section 3), in civilian federal agencies (section 6), in organizations that have contracts with the federal government (section 4), and in organizations that receive grants from the federal government to carry out programs (section 5). The Order seeks to censor the content of such training programs, even if they are not specifically funded by the federal government or are not the subject matter of a federal contract or grant, as long as they are conducted by organizations that have federal contracts or receive federal grants. OMB issued a memorandum on September 28 detailing how the Order would be enforced.
Within weeks of Trump signing the Order, organizations theoretically affected by the ban started to cancel diversity programs, some of which were provided by some of the organizations that are among the plaintiffs in this lawsuit filed by Lambda Legal and cooperating attorneys from the law firm Ropes & Gray. Some individual consultants who provide diversity training services also reported cancellation of programs for which they were contracted.
The lead plaintiff is the Santa Cruz Lesbian and Gay Community Center, which also operates under the name “Diversity Center of Santa Cruz.” Other organizational plaintiffs include the Los Angeles LGBT Center, The AIDS Foundation of Chicago, the Bradbury-Sullivan LGBT Community Center in Lehigh Valley, Pennsylvania, the NO/AIDS Task Force in New Orleans, and SAGE (headquartered in New York). The government’s initial response to the lawsuit was to deny that the plaintiffs had “standing” to sue, or that any of their constitutional rights were threatened or violated. Among other things, the government argued that the 1st Amendment does not restrict it from deciding how federal money will be spent or the content of training offered to federal employees.
Turning to standing, it quickly became clear to the court and the parties that the plaintiffs, all private sector organizations, could most easily satisfy standing requirements to challenge sections 4 and 5, dealing with contractors and grant recipients, because all the organizational plaintiffs either have federal contracts or receive federal grants. Indeed, for some of them a majority of their funding comes from the federal government, and the court found that the possibility that the restrictions in the EO will be enforced against them are not merely hypothetical, given the enforcement directives of the OMB memo and the cancellation of programs that have already occurred because presenting organizations feared losing federal contracts or funding.
The court also found that despite some lack of clarity in the Order about what could or could not be included in training programs, because of the vague and convoluted language (which is typical of Trump Administration executive orders), it was very likely that the plaintiffs would be targeted for enforcement because of the content of their training programs.
“The September 28 Memorandum issued by the OMB Director specifically directs agencies to identify entities that promote the prohibited “divisive concepts” by doing keyword searches for the terms “critical race theory,” “white privilege,” “intersectionality,” “systemic racism,” “positionality,” “racial humility,” and “unconscious bias,” wrote Judge Freeman. “As Plaintiffs’ counsel commented at the hearing, these keyword searches may as well have been designed to target Plaintiffs.”
Having established standing concerning sections 4 and 5, the court turned to the four-part test for preliminary relief: likelihood of success on the merits, irreparable harm to plaintiffs if the injunction is not issued, balance of the equities as between the plaintiffs and the government, and the public interest. The court found that all four tests are satisfied.
The Supreme Court’s decisions on similar claims have engaged in difficult line-drawing between the degree to which the government can control the speech of contractors and grantees and the degree to which they retain freedom of speech with respect to issues of public concern. Opposing the motion, the government claimed that it was within its rights to impose these restrictions, but Judge Freeman found that the plaintiffs’ training programs were entitled to 1st Amendment protection, especially when it came to training they did of their own employees as part of their goal to provide appropriate non-discriminatory service to their clients. The Order seeks to control that, even when the federal contract has nothing to do directly with diversity training, likewise with grantees. Furthermore, the training directly involves matters of public interest and concern.
“Although the Government has a legitimate interest in controlling the scope of diversity training in the federal workforce and can limit the expenditure of federal funds,” wrote Judge Freeman, “that interest can be protected by narrowing the scope of this preliminary injunction. Thus, the Government’s interest is outweighed by the effect of the impermissible reach of the Executive Order on Plaintiff’s freedom to deliver the diversity training and advocacy they deem necessary to train their own employees and the service providers in the communities in which they work, using funds unrelated to the federal contract.”
Several major research universities submitted an amicus brief in support of plaintiffs, pointing out how the section 5 restrictions “appear to require universities that accept federal grants to curtail promotion of these concepts through teaching, training and discussion. The 8 Institutions of Higher Education argue persuasively that “scholars need to be able to give voice to, and indeed ‘endorse,’ opposing views in order for intellectual progress to occur. The Order inhibits this advancement – which is a core component of amici’s missions.”” The court saw in the OMB memorandum that the implementation directive was aimed at “actually imposing the condition on as many grant programs as possible,” presenting a clear threat to freedom of speech in the academic setting.
As to the Due Process claim, the language of the EO and the OMB memorandum, while specific in some respects, was vague in others, so that a contractor or grantee might have difficulty determining whether particular subjects in their diversity training programs were covered by the Order. The court found that an FAQ section in the OMB Memo made the ambiguity even worse. “In conclusion,” wrote Freeman, “the Court finds wholly unpersuasive the Government’s assertions that Sections 4 and 5 of the Executive Order are clear or that any ambiguities may be easily resolved,” so plaintiffs were likely to succeed in showing that those sections are void for vagueness in violation of the Due Process Clause of the 5th Amendment.
Furthermore, the chilling of 1st Amendment rights is generally deemed to be an “irreparable injury” by the federal courts, and the protection of 1st Amendment rights is generally deemed to be within the public interest, so the court concluded that the tests for preliminary injunctive relief had been satisfied, and that narrowing the scope of the injunction to Sections 4 and 5 was sufficient to meeting the Government’s objection. The court accepted the plaintiffs’ argument that only a nationwide injunction would suffice, given the geographical diversity of the co-plaintiffs and the scope of their training activities, which were certainly not confined to the northern California counties within the judicial district of the court. Similarly, Judge Freeman rejected the argument that injunctive relief should be limited to the plaintiff organizations and individuals, and noted that the plaintiffs had not asked for the injunction to run personally against the lead defendant, one Donald J. Trump, but rather against the government agencies that would enforce the Order.
If the Trump Administration follows its usual course, it will seek a stay of the injunction from the court while it appeals to the 9th Circuit. But perhaps, since the Trump Administration has only a month to go, it may not bother to seek immediate review.

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Federal Court Says Ohio Must Let Transgender People Correct Their Birth Certificates

U.S. District Judge Michael H. Watson ruled on December 16 that Ohio’s refusal to issue corrected birth certificates for transgender people violates the United States Constitution.  Lambda Legal and the American Civil Liberties Union sued state officials on behalf of four transgender plaintiffs whose attempts to get their birth certificates changed to correctly identify their gender had been thwarted.  Ray v. McCloud, Case No. 2:18-cv-272 (S.D. Ohio).

At the time Lambda sued two years ago, there were only three states that categorically prohibited such changes: Kansas, Ohio and Tennessee.  Since then, Kansas has settled a Lambda Legal lawsuit by agreeing to change its policy.  That leaves Tennessee as the last holdout.

However, Judge Watson’s opinion did not address what requirements Ohio may impose to determine whether a particular transgender individual may obtain a new birth certificate correctly reflecting their gender identity.  Some jurisdictions require proof of surgical alteration or at least some clinical treatment, some others are satisfied with a doctor’s attestation as to gender identity, and some will accept a sworn declaration by the individual as to their correct gender identity.  All that the judge held in this case was that the state cannot categorically refuse to make such changes under any circumstances.

This issue has had an inconsistent history in Ohio.   State courts had turned down attempts by transgender individuals to get court orders to change their birth certificates for many years, but then the state did a turnabout and started allowing them until 2016, when it reverted to its former prohibition.  Judge Watson noted that at least ten transgender people had actually obtained new birth certificates before the policy was changed.  Since the statute governing birth certificates in Ohio does not even mention the issue but generally provides that a birth certificate can be corrected if information “has not been properly or accurately recorded,” the state claimed that it was now acting according to its interpretation of the statute as requiring a record that was correct at the time of birth.

Lambda’s complaint on behalf of Stacie Ray, Basil Argento, Ashley Breda and “Jane Doe” asserted that the state’s policy violated their Due Process privacy rights and their Equal Protection rights under the 14th Amendment, as well as their Free Speech rights under the 1st Amendment.  Having ruled in favor of the plaintiffs on their 14th Amendment claims, Judge Watson commented in a footnote that he would decline to analyze their 1st Amendment claim.

At an earlier stage in the litigation, the court had refused to dismiss the case outright.  The December 16 ruling granted summary judgment to the plaintiffs based on the evidentiary record.  Each of the plaintiffs had explained how having a birth certificate that did not correctly reflect their gender identity caused practical problems for them, essentially misgendering them and “outing” them as transgender when they were required to provide their birth certificate.  The court also noted the significant risk of harassment and physical violence that transgender people face as an important reason to allow them to obtain birth certificates that identify them correctly, citing a 2015 U.S. Transgender Survey showing that almost one-third of transgender individuals who had to use an identity document that misgendered them consequently suffered harassment, denial of benefits or services, discrimination, or physical assault.

The court found that because the fundamental right of privacy was involved, the standard of review for their Due Process claim is “strict scrutiny,” under which the state’s policy would be presumed to be unconstitutional unless it met the burden of showing a compelling justification.  On the equal protection claim, Judge Watson found that many federal courts now agree that heightened scrutiny applies, under which the state must show an exceedingly persuasive reason for its policy.  Courts use heightened scrutiny for sex discrimination claims, arguably making relevant the Supreme Court’s Bostock decision earlier this year, which held that discrimination because of transgender status is sex discrimination within the meaning of the federal anti-discrimination law, Title VII.

Either way, however, the court concluded that the policy must fall, because the state’s arguments didn’t even support a “rational basis” for what it was doing.  Having allowed transgender people to get new birth certificates in the past, the state should have articulated a reason why it had changed that policy, but it could not credibly do so.  What the court left unstated was the likelihood that the change in policy was entirely political.

The state’s attempt to argue that its interest in having accurate birth records required this categorical policy was fatally undermined by the fact that changes to birth certificates are made in many other circumstances.  A person who gets a legal name change can get a new birth certificate showing their new legal name.  After an adoption, a new birth certificate can be issued listing the adoptive parents instead of the birth parents.  The court found that no persuasive justification had been offered for freely changing the information on birth certificates in these other circumstances but not for transgender people, especially in light of the difficulty and harm they suffered.

As noted, however, the court’s ruling was limited to the categorical ban, leaving yet to be determined the criteria Ohio was adopt for determining whether the change can be made in a particular case.  Furthermore, the state could attempt to appeal this ruling to the 6th Circuit Court of Appeals, but that court has already gone on record regarding gender identity discrimination as a form of sex discrimination in the case of the late Michigan transgender funeral director Aimee Stephens, who employment discrimination case was part of the Bostock decision by the Supreme Court.

Lambda Legal attorneys who worked on this case include Kara Ingelhart and Peter Renn.  Malita Picasso and John Knight of the ACLU’s LGBT Rights Project and Freda Levenson, Susan Becker, Elizabeth Bonham and David Carey of the ACLU of Ohio were co-counsel, as well as pro bono counsel Jennifer Roach from Thompson Hine LLP.

 

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Supreme Court Lets Stand 7th Circuit Decision on Lesbian Spouses and Birth Certificates

The U.S. Supreme Court has refused to review a ruling by the 7th Circuit Court of Appeals in Henderson v. Box, 947 F.3d 482 (2020), that the state of Indiana must extend to married lesbian couples the same parentage presumption it applies to married different sex couples: that a birth mother’s spouse is presumed to be a parent of her child, that  the child be deemed born “in wedlock,” and that both mothers be named as parents on the birth certificat.  On December 14, the Supreme Court denied the State of Indiana’s petition to review that ruling without explanation or any dissent.  Box v. Henderson, 2020 WL 7327836 (Dec. 14, 2020).

On one hand, this action might be seen as routinely expected, because the Supreme Court decided a similar case from Arkansas exactly this way in 2017.  In Pavan v. Smith, 137 S. Ct. 2075, the Court voted 6-3 to reverse a decision by the Arkansas Supreme Court.  That opinion was issued per curiam, although a close reading would identify the hand of Justice Anthony M. Kennedy, Jr., author of the Court’s 2015 marriage equality ruling, Obergefell v. Hodges, 135 S. Ct. 2584, in which the Court not only said that same-sex couples have a constitutional right under the 14th Amendment to marry, but also that such marriages must be treated by the states as equal in every respect to the marriages of different sex couples.  In Obergefell, Justice Kennedy specifically mentioned listing on birth certificates as one of the incidents of legal marriage from which same-sex couples had previously been excluded.

Justice Neil Gorsuch wrote a dissenting opinion in Pavan, joined by Justices Samuel Alito and Clarence Thomas, arguing that the Obergefell ruling did not necessarily compel the conclusion stated by the Court and that the Court should have scheduled briefing and a full hearing on the question rather than issue a summary per curiam ruling.

Since Pavan was decided, Justice Kennedy has retired and Justice Ruth Bader Ginsburg has died, being replaced respectively by Justices Brett Kavanaugh and Amy Coney Barrett, both religious conservatives.  When Indiana filed its petition for review in the Henderson case last spring, Justice Ginsburg was still on the Court and the Pavan v. Smith majority was intact.  The same-sex couples who had filed the lawsuit, represented by the National Center for Lesbian Rights, did not even file an opposition, assuming the Court would dismiss the petition.  But with Justice Ginsburg’s death and replacement, the calculus had changed, as the Pavan 6-member majority had been reduced to a 4-member minority of the Court.  The Supreme Court then requested the plaintiffs to file a reply to Indiana’s petition for review, and the possibility appeared that the Supreme Court might take up the issue anew.

At the heart of Indiana’s case was the contention that the presumption that a husband is the father is reality-based in biology, and there is no such basis for a reality-based presumption for the wife of a woman who gives birth, although the 7th Circuit had observed that one of the lesbian couples in the case comprised two biological mothers, as the second mother had donated the egg that was gestated by the birth mother.

Be that as it may, Indiana, in common with other states, has never treated the father’s parental status as conclusive, since it could be rebutted by evidence that a different man was the biological father, and ultimately a birth certificate records legal parentage, not biological parentage, as in the new birth certificates that are issued upon a child’s adoption.  The trial court, and ultimately the 7th Circuit, related that Indiana relied on self-reporting by the mother in determining a man’s name to record on a birth certificate, and the form the birth mother is given asks for the name of the father, not explicitly the name of the biological father, making it likely that many men are named as fathers on birth certificates despite the lack of a biological tie to the child.

Ultimately, wrote the 7th Circuit, “The district court’s order requiring Indiana to recognize the children of these plaintiffs as legitimate children, born in wedlock, and to identify both wives in each union as parents, is affirmed.”

By refusing to review this ruling, without any explanation or dissent by the conservative justices, the Supreme Court seems to have put the seal on this issue.  This is particularly reassuring in light of gratuituous comments by Justice Alito (joined by Justice Thomas) in a statement he issued when the Court refused to review former Kentucky county clerk Kim Davis’s petition to review an award of damages against her for refusing to issue marriage licenses to same-sex couples after the Obergefell decision was announced.  Davis v. Ermold, 2020 U.S. LEXIS 3709, 2020 WL 588157 (October 5). In Alito’s statement, and remarks he later delivered to a conservative public forum, Alito sharply criticized the Obergefell decision and suggested that the Court needed to “fix” the problems that ruling created for those with religious objections to same-sex marriage.  This focused renewed attention on the Henderson case and the possibility that the Court would take it and rule in a way that would detract from the equal legal status of same-sex marriages.  The decision not to take this case may represent an important bullet dodged for now.

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Michigan Claims Court Issues Split Ruling on State’s Public Accommodations Law

Michigan Court of Claims Judge Christopher M. Murray issued an opinion on December 7 in Rouch World v. Michigan Department of Civil Rights, Court of Claims Case No. 20-000145-MZ, holding that the state’s Elliot-Larsen Civil Rights Act (ELCRA), which, among other things, prohibits businesses from discriminating against customers because of their sex, cannot be interpreted by his court as banning sexual orientation discrimination, because the state’s Court of Appeals rejected the argument that sexual orientation discrimination is covered by the Act in a 1993 ruling.

On the other hand, finding that there is no Michigan court ruling on whether the ELCRA’s sex discrimination ban can be applied to discrimination against transgender people, Judge Murray followed the Supreme Court’s June 2020 ruling in Bostock v. Clayton County, 140 S. Ct. 1731, which interpreted the federal ban on sex discrimination in employment to apply to claims of discrimination based on transgender status.

Michigan Attorney General Dana Nessel announced that she would appeal Murray’s ruling as to sexual orientation discrimination, while the business that faces a gender identity discrimination claim announced that it would appeal that ruling.

Murray’s opinion concerned discrimination claims against two businesses.  Rouch World, an events venue that rents space for weddings and other celebrations, refused to book an event for a same-sex couple, citing the owners’ religious objections to same-sex marriages.  Uprooted Electrolysis, which provides permanent hair-removal treatment, turned down a transgender person seeking their service as part of her transition, also citing religious objections.

In both cases, the rejected customers filed complaints with MDCR, which began investigations pursuant to its Interpretative Statement 2018-1, which states that the ELCRA can be interpreted to cover such claims.  In both cases, the businesses subsequently filed suit in the Court of Claims, arguing that the Department does not have jurisdiction over sexual orientation and gender identity claims, and even if it did, that their religious objections privileged them to deny the services.  The plaintiffs asked the court to put an end to the investigations.

Judge Murray explained that the ELCRA does not define the word “sex” as used in the provision applicable to claims of discrimination by “a place of public accommodation,” which includes businesses selling goods or services to the public.  In 1993, the Michigan Court of Appeals ruled in Barbour v. Department of Social Services, 497 N.W. 2d 216, that “harassment or discrimination based on a person’s sexual orientation is not an activity proscribed by the Act.”  That decision is binding on trial courts in Michigan.  Judge Murray explained that “whether Barbour’s reasoning is no longer valid in light of Bostock v. Clayton County, and cases containing similar reasoning, is a matter for the Court of Appeals, not this court.”  Consequently, Attorney General Nessel, herself an out lesbian who helped persuade the Department to issue Interpretative Statement 2018-1, will appeal this part of the ruling to the Court of Appeals.

On the other hand, Murray found no prior opinion by a Michigan court addressing the question of whether gender identity discrimination claims are covered by the ELCRA.  Lacking such authority, Michigan courts will look to decisions concerning other statutes with similar language as well as federal rulings for interpretative guidance.  This brings the Bostock decision into play.

Significantly, the Michigan Supreme Court recently vacated a Michigan Court of Appeals ruling in a case under the ethnic intimidation statute for reconsideration in light of Bostock.  In that case, People v. Rogers, 331 Mich. App. 12, vacated, 950 N.W. 2d 48 (2020), the Court of Appeals ruled that the ethnic intimidation statute’s listing of sex does not cover hate crimes against transgender people.  The Michigan Supreme Court told the Court of Appeals to reconsider that ruling in light of Bostock, a clear signal that the Michigan court is prepared to treat the Bostock decision as a persuasive precedent for interpreting the state’s sex discrimination laws.

“Following the Bostock Court’s rationale,” wrote Murray, “if defendants determine that a  person treated someone who ‘identifies’ with a gender different than the gender that he or she was born as, then that is dissimilar treatment on the basis of sex, and they are entitled to redress that violation through the existing MDCR procedures.  Nothing in the ELCRA would preclude that action.”

The bottom line of Judge Murray’s decision is that the Department does not have jurisdiction of the sexual orientation discrimination claim against Rouch World unless the Michigan Court of Appeals decides to overrule its old Barbour decision, but that the Department does have jurisdiction to investigate Uprooted Electrolysis’s denial of service to a transgender client, at least so far as interpretation of the ELCRA goes.  Of course, the Supreme Court’s remand in the ethnic intimidation case is likely to persuade the Court of Appeals that it should also reconsider Barbour in light of Bostock.

The court refrained from ruling on the religious exemption claims, stating that issue “has not been sufficiently briefed to resolve at this juncture.”  The question of federal constitutional religious exemptions from compliance with state or local anti-discrimination laws is now before the U.S. Supreme Court in Fulton v. City of Philadelphia, which was argued on November 4 and will be decided sometime in 2021.  It is likely that many state agencies and courts dealing with religious exemption claims by civil rights defendants may delay ruling on such claims until the Supreme Court rules in Fulton.

Judge Murray ended his opinion by stating, “This is not a final order as it does not resolve all of the pending issues in this case.”  This cryptic remark implies that Uprooted Electrolysis may not immediately appeal the court’s determination that the ELCRA applies to the transgender discrimination claim, since its religious exemption claim has not yet been ruled upon.  However, the declaration that the MDCR does not have jurisdiction over the sexual orientation claim against Rouch World seems final as to that complaint, so Attorney General Nessel may be able to appeal that ruling.

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Passport Denial Violates Transgender Man’s Equal Protection Rights

U.S. District Judge Gloria M. Navarro ruled on November 23 that the State Department violated the 5th Amendment Equal Protection rights of Oliver Bruce Morris, a transgender man, by refusing to issue him a passport identifying him as male unless he could provide a doctor’s certification of clinical treatment for gender transition.  Morris v. Pompeo, 2020 U.S. Dist. LEXIS 219009 (D. Nevada).  Judge Navarro rejected Morris’s claim that the denial violated his due process rights, and abstained from deciding his Administrative Procedure Act claim on the ground that the relief ordered by the court – to process the passport application without requiring the physician’s letter – had mooted that claim.

Morris, who was identified as female at birth but has identified as male for several years, has health insurance but it doesn’t cover gender transition surgery.  He has been receiving hormone treatment, which is covered by his insurance, under the care of a licensed practical nurse.  He is identified as male on his driver’s license, and obtained a legal name change from a Nevada court.

Morris applied for a 10-year passport in October 2018. “On the application’s checkbox for ‘Sex,’” wrote Judge Navarro, “Plaintiff checked the ‘M’ box, indicating male. Plaintiff included three identity documents in his application: a Nevada driver’s license, which indicates his sex is male; an original copy of his birth certificate, which indicates his sex is female; and a court-ordered name change, indicating that he legally changed his name from “Chanesse Olivia Morris” to “Oliver Bruce Morris” on June 27, 2018.”

Evidently the bureaucrats at the State Department were stymied by the inconsistency between the driver’s license, the name-change court order, and the birth certificate, concerning Morris’s gender.  He received a letter asking him to “verify his sex,” wrote Judge Navarro. “The letter explained, ‘[i]n order to issue you a passport card reflecting a sex different from the one on some or all of your citizenship and/or identity evidence, please send us a signed original statement on office letterhead from your attending medical physician.’ The letter enumerated the information Plaintiff’s physician would have to certify under penalty of perjury, including, ‘[l]anguage stating that you have had appropriate clinical treatment for transition to the new sex.”

Now Morris was stymied, since he is not under a physician’s care, which would not be covered by his health insurance for this purpose.  As a person of limited means, he was being assisted on this application be a legal services attorney, who sent a letter on his behalf “explaining he would not provide the requested certification because he could not afford gender transition treatment, and the requirement violated his constitutional rights.”  The State Department sent several “final notices” repeating the request for a physician’s letter before denying the application due to Morris’s failure to “verify” his sex.  Nevada Legal Services attorneys Christena Georgas-Burns and David A. Olshan then filed suit on his behalf.

The complaint claims that the denial of the passport violated Morris’s 5th Amendment Due Process rights, alleging that he has a constitutional right to refuse medical treatment for gender transition, and his Equal Protection rights, arguing that because cisgender people are not required to provide a physician’s verification of their sex in order to get a proper passport, such a requirement cannot be posed to transgender people.   He also alleged that the barriers the State Department has erected in his case are outside the scope of its authority under the Administrative Procedure Act.  The government moved for summary judgment on the APA claim and to dismiss the constitutional claims, and Morris countered with a motion for summary judgment on all his claims.

The court rejected Morris’s Due Process claim, reasoning that the government is not requiring Morris to submit to surgical treatment in order to get a passport, as they would be happy to issue him a passport with a sex designation consistent with his birth certificate.  That sounds a bit nonsensical, since a passport with his male name and picture and a female sex designation would undoubtedly lead to problems should he try to use it as identification, especially in international travel.  Perhaps his Due Process claim would have gotten further by relying on the right to autonomy and self-identification mentioned by the Supreme Court in Lawrence v. Texas, but that theory was not argued on the summary judgment motion by Morris.  Be that as it may, however, the court’s acceptance of his Equal Protection claim renders the loss on the Due Process claim harmless in this context.

As to the Equal Protection claim, Judge Navarro’s ruling on Morris’s summary judgment motion treated his claim as an as-applied claim rather than a facial unconstitutionality claim, because of the particular proof issues in deciding the plaintiff’s summary judgment motion on a claim of discrimination that merits heightened scrutiny.  There is caselaw in the 9th Circuit – specifically, the circuit’s ruling in Karnoski v. Trump, 926 F.3d 1180, 1201 (9th Cir. 2019) – holding that the federal government faces heightened scrutiny when it is challenged for applying a policy in a way that discriminates against a transgender person.  (In Karnoski, the court was considering President Trump’s transgender military service ban, as concretized by Defense Secretary Jim Mattis in a policy implemented in April 2019.)  Morris’s complaint alleges facts sufficient to sustain a claim of unequal treatment.  Under heightened scrutiny, the government bears the burden on summary judgment of providing an “exceedingly persuasive justification” for imposing its requirement of a physician’s statement to verify a person’s sex and certifying clinical transitional treatment as a prerequisite to getting a passport consistent with the person’s gender identity.

Judge Navarro found that the government’s summary judgment motion was not accompanied by such proof, as it consisted of generalized statements about the importance of the passport as an identity document. “Here,” she wrote, “the Government frames its purported interest too broadly and fails to provide evidence that the interest is exceedingly persuasive. Defendant asserts interests in verifying passport applicants’ identities and ‘[i]ssuing passports that accurately state the bearer’s identity[.]’ There is little doubt that the State Department has an interest in accurately representing the identities of U.S. citizens to foreign nations. However, the only facet of identity at issue here is a passport applicant’s sex or gender. Defendant has provided no explanation, let alone any evidence, of why the State Department has an important interest in verifying a transgender passport applicant’s gender identity, nor a cogent explanation of why the Policy requiring a physician’s certification increases the accuracy of issued passports. Assuming, arguendo, that Defendant has a substantial interest in verifying transgender applicants’ gender identities, he has not shown why a doctor’s certification substantially furthers the interest with respect to transgender applicants given that not all transgender persons receive or require physician treatment.”

In other words, the court implicitly accepts the plaintiff’s argument that one’s gender identity and appropriate sex designation on a passport is not an artifact of genitalia.  One can be a transgender person and entitled to recognition as such without undergoing gender confirmation surgery.  The requirement for a physician to certify “clinical” treatment for transition is not supported by an “exceedingly persuasive” explanation here.

“Given that Plaintiff has prevailed on his equal protection claim,” wrote Judge Navarro, “the Court orders Defendant to review Plaintiff’s passport application without requiring a physician’s certification of Plaintiff’s gender. If Plaintiff’s application is otherwise sufficient under the relevant State Department regulations, Defendant shall issue Plaintiff a 10-year passport. As the Plaintiff has succeeded on his as-applied challenge, the Court declines to address whether the Policy is facially unconstitutional.”  And, as noted above, having provided Morris exactly what he is seeking under his constitutional claim, the court found it unnecessary to rule on the merits of his APA claim.

Thus, the government’s motion to dismiss the constitutional claims was granted as to the Due Process claim and denied as to the Equal Protection claim, and the Plaintiff’s motion for summary judgment was granted as to the Equal Protection claim and denied as to the Due Process claim, while the APA claim was dismissed as moot.

Judge Navarro was appointed to the district court by President Barack Obama in 2010.

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Supreme Court May Address Parental Presumption for Children of Married Lesbians This Term

Now that there is a 6-3 conservative majority on the Supreme Court, it is possible that the Court will begin a process of cutting back on marriage equality.  This is at least one interpretation of the Court’s request for additional briefing on a cert petition filed by the state of Indiana in Box v. Henderson, No. 19-1385, seeking review of the 7th Circuit’s January 17, 2020, decision in Henderson v. Box, 947 F.3d 482, in which the court of appeals applied the Supreme Court’s rulings in Obergefell v. Hodges, 576 U.S. 644 (2015) and Pavan v. Smith, 137 S. Ct. 2075 (2017), to rule that a state must apply the parental presumption regarding newborn children regardless of the sex of the birth mother’s spouse, if it always applies the presumption when the birth mother’s spouse is male.

When the petition was filed with the Court in June, the Respondents (same-sex mothers challenging the state’s policy) waived their right to file a response, apparently assuming that the Court would not be interested in revisiting an issue that it had decided per curiam with only three dissenting votes as recently as June 2017.   The petition was circulated to the justices for their conference of September 29, which would be held the week after the death on September 18 of Justice Ruth Bader Ginsburg, who was part of the Pavan v. Smith majority.  Another member of that majority who is no longer on the Court is Anthony M. Kennedy, whose retirement led to Justice Brett Kavanaugh’s appointment.  By the time the Court was to hold its conference on  the 29th, it was clear that Trump would nominate a conservative replacement for Ginsburg and that the Senate would rush to confirm the nominee to fulfil Trump’s goal to ensure a 6-3 Republican conservative majority on the Court in case he sought to contest adverse election results.

Evidently the Box v. Henderson petition, lacking a responsive filing, caught the eyes of one or more of the conservative justices, who had the Clerk of the Court send a request to the plaintiffs to file a responding brief, which was filed on November 10.  On November 23, the state of Indiana filed a Reply brief, which provided a news hook for media to report on November 24 that the new conservative majority might take up the case as a vehicle to cut back on marriage equality by holding that a state may decide that it is not required to presume that the wife of a birth mother is the other parent for purposes of officially recording the birth.

An argument that has been persuasive to lower courts, apart from the “equal treatment” for same-sex marriages statements in Obergefell and Pavan, is that states have applied the presumption in favor of the husbands of birth mothers even when it was clear that the husband was not the biological father, as for example when donor sperm was used to inseminate the wife with the husband’s consent, or when the husband and wife were geographically separated when the wife became pregnant.  Thus, under existing policies in many states, the parental presumption has not been limited to cases in which it was rational to assume that the birth mother’s husband was the child’s biological father.  In this connection, even if Chief Justice Roberts, part of the per curiam majority in Pavan despite his dissent in Obergefell, sticks with his vote in Pavan, there are now five conservatives to vote the other way, two of whom joined Justice Neil Gorsuch’s dissent in Pavan asserting that the issue was not decided simply on the basis of Obergefell.

With the filing of the state’s reply brief, the Petition has been redistributed for the Court’s conference of December 11.  Sometimes the Court rolls over cert Petitions for many conferences before reaching a decision whether to grant review.  If the Court grants certiorari before the end of January, the case would likely be argued during the current term and decided by the end of June. A later grant would most likely be argued during the October 2021 Term.

Counsel listed on the Respondents’ Brief in Opposition include Karen Celestino-Horseman (Counsel of Record) of Austin & Jones, P.C., Indianapolis; attorneys from the National Center for Lesbian Rights (Catherine Sakimura, Shannon Minter, and Christopher Stoll), San Francisco; Douglas Hallward-Driemeier of Ropes & Gray LLP, Washington (who was one of the oral advocates in the Obergefell case); Joshua E. Goldstein, also of Ropes & Gray LLP, Boston office; Raymond L. Faust, of Norris Choplin Schroeder LLP, Indianapolis, William R. Groth of Vlink Law Firm LLC, Indianapolis; and Richard Andrew Mann and Megal L. Gehring, of Mann Law, P.C., Indianapolis.  Several same-sex couples joined in this case, resulting in several Indianapolis law firms being involved.

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States Take Differing Stances on Parental Status of Same-Sex Partners and Spouses

Legal observers have been predicting that the Supreme Court will rule in Obergefell v. Hodges that same-sex couples have a right to marry under the 14th Amendment of the U.S. Constitution and to have such marriages recognized by every state, but such a ruling will not necessarily settle all the issues of parental rights of same-sex couples that continue to divide the courts. Litigation in four jurisdictions demonstrates the continuing problem of sorting out such rights.

The Massachusetts Supreme Judicial Court ruled on May 7 in Adoption of a Minor, 2015 Mass. LEXIS 248, 2015 WL 1095242, that the traditional presumption that a child born to a married woman is the legal child of her spouse applies to a lesbian couple, so they need not provide formal notice to their sperm donor that they are seeking a joint adoption in order to avoid problems if they travel or relocate outside Massachusetts. But on May 20, the New York 2nd Department Appellate Division, in Brooklyn, ruled in Paczkowski v. Paczkowski, 2015 N.Y. Slip Op. 04325, 2015 WL 2386457, that the parental presumption does not apply to a lesbian couple, affirming a Nassau County family court ruling that the non-biological mother has no standing to seek a joint custody order for the child born to her same-sex partner. In Oregon, the Court of Appeals ruled on May 13 in In re Domestic Partnership of Madrone, 2015 Ore. App. LEXIS 577, 2015 WL 2248221, that the question whether the former registered domestic partner of a birth mother should be considered the legal parent of the child turned on whether the women would have married had that option been available when the child was born, and in Wisconsin, Lambda Legal filed suit, also on May 13, in Torres v. Rhoades, Case No. 15-cv-288 (U.S. Dist. Ct., W.D. Wis.), on behalf of a married lesbian couple denied the benefit of the marital presumption by state officials who have thus far refused to list both women as parents on their child’s birth certificate.

The cases each present somewhat different facts, but all of them implicate the question whether some form of the parental presumption should apply when children are born to a lesbian couple as a result of donor insemination. The parental presumption, whether adopted as a judicial rule or through legislation, has differed in its strength from state to state, but has generally been applied by courts and government officials to ensure that a child born to a married woman not be deemed “illegitimate” and be entitled to the support of the biological mother’s spouse, and the presumption took on particular significance when married different-sex couples began to resort to donor insemination to deal with problems of male infertility, raising questions about the legal rights and responsibilities of the husbands.

In the Massachusetts case, petitioners J.S. and V.K., a married lesbian couple, filed a joint petition to adopt their son Nicholas who was born to J.S. in 2014, having been conceived through in vitro fertilization using a known sperm donor. The women were married when Nicholas was born, and both are listed as parents on his birth certificate. According to the opinion for the Supreme Judicial Court by Justice Fernande R.V. Duffly, the women “sought to adopt their son as a means of ensuring recognition of their parentage when they travel outside the Commonwealth or in the event of their relocation to a State where same-sex marriage is not recognized.” They sought to proceed with the adoption without given notice to the sperm donor, contending that since he was not a legal parent of Nicholas, no notice was required.

The family court judge denied their motion to dispense with the notice, certifying the question whether notice to a known biological father was required to the state appeals court. The Supreme Judicial Court transferred the case directly to its docket, and concluded that such notice was not required.
Justice Duffly made clear that the parental presumption applied in this case. “As to a child of a marriage who is conceived via artificial insemination or IVF, as here,” wrote Duffly, “[the statute] by its nature, contemplates that a third party must provide genetic material for the child’s conception. Nonetheless, as is consistent with our paternity statutes and long-standing presumption of the legitimacy of marital children, [the statute] confers legal parentage only upon the mother’s consenting spouse, not the sperm donor. It is thus presumed that marital children have only two lawful parents: the biological mother and her spouse.” While acknowledging that there are contexts in which a sperm donor might assert claims to parentage, they did not apply in this case, where the sperm donor was not seeking any parental standing. Thus, the court concluded, since the adoption statute “does not require the lawful parents of a child to give notice of the petition for adoption to a known sperm donor, we answer the reported question, ‘No.’ The order denying the petitioners’ motion to proceed with the adoption without further notice is reversed.”

The contrary ruling by the New York Appellate Division provides little rational explanation. As reported last summer, the case of Jann P. v. Jamie P. produced a startling ruling from Nassau County Family Court Judge Edmund M. Dane on June 30, 2014, holding that the state’s 2011 Marriage Equality Law, which provides that same-sex and different-sex marriages should be treated the same for all purposes of New York law, did not apply to the parental presumption. The appellate division’s ruling abandoned the trial court’s decision to provide anonymity to the parties, identifying them as Jann and Jamie Paczkowski. They were married when their son was born, but the marriage was a shaky one, and no adoption was undertaken.

When the couple separated and Jann sought a court order allowing her continued contact with her son, Judge Dane insisted that the parental presumption did not apply because it was physically impossible for Jann to have been the child’s biological parent. On May 20, the Appellate Division echoed this conclusion. “Here, the petitioner, who is neither an adoptive parent nor a biological parent of the subject child, failed to allege the existence of extraordinary circumstances that would establish her standing to seek custody,” wrote the court. “Contrary to the petitioner’s contention,” the statutory provisions concerning the parental presumption “do not provide her with standing as a parent, since the presumption of legitimacy they create is one of a biological relationship, not of a legal status, and, as the nongestational spouse in a same-sex marriage, there is no possibility that she is the child’s biological parent.”

The court’s wording signals the archaic legal formalism of its approach to this issue. Referring to “the subject child” as if this case did not involve flesh-and-blood people with emotional and psychological attachments – in this case, the bonding of a mother-child relationship extending over many months until Jann’s continued contact with her child was cut off – suggests that the judges were more concerned with legal categories than human relationships, totally at odds with the underlying philosophy of family law, which is to strive to protect the best interest of children in disputes involving their parents. The case cries out for reversal by the Court of Appeals or the legislature.
Surely, when the New York State legislature adopted a Marriage Equality Law that expressly provides that same-sex and different-sex marriages were to be treated as equal in all legal respects, it could not have implicitly intended to create an exception to the parental presumption statute. And that statute is not written in gendered terms.

Section 417 of the Family Court Act states, “A child born of parents who at any time prior or subsequent to the birth of said child shall have entered into a ceremonial marriage shall be deemed the legitimate child of both parents for all purposes of this article regardless of the validity of the marriage.” Clearly, the intent of the statute is to legitimize the birth of any child born to a married woman by recognizing both spouses as parents of the child. The practice commentary published in the statute book states that this presumption “should apply to same sex as well as heterosexual married couples.

The commentary cites a Monroe County decision from 2014, Wendy G.M. v. Erin G.M., 45 Misc. 3d 594, supporting this conclusion, in which the court ruled that a common law (non-statutory) policy could be applied to recognize the parental status of the biological mother’s wife. Ironically, and inexplicably, the Appellate Division’s decision in the Paczkowski case cites the Wendy G.M. decision without acknowledging that it would support Jann’s standing to seek custody, making it seem as if the two decisions are consistent. One wonders whether the judges whose names are attached to the Paczkowski ruling – Randall T. Eng, L. Priscilla Hall, Jeffrey A. Cohen, and Betsy Barros – bothered to read the Wendy G.M. decision.

The Oregon case is a bit more complicated. Karah and Lorrena, same-sex partners, did not have a legally recognized relationship when Lorrena bore a child through donor insemination, although they entered into a registered domestic partnership after the child was born. They had a commitment ceremony a few years before the child was conceived through donor insemination. There was evidence, however, that Lorrena had expressed ideological opposition to marriage as an institution, and she testified that having the child was originally her idea and she never intended for Karah to be a legal parent of the child. Despite their entering into a domestic partnership after the child was born, it seems that their relationship had deteriorated during Lorrena’s pregnancy, and the circumstances under which the domestic partnership papers were signed is disputed by the parties. On the other hand, they had agreed to adopt a new surname, Madrone, and that name was used for the child’s birth certificate, both women being listed as parents. After the subsequent break-up, Karah sought to establish her parental status, relying on a prior Oregon court decision recognizing parental standing for same-sex partners. Today same-sex partners can marry in Oregon as a result of a court ruling last year, but that option was not available when the child was born.

The court of appeals determined that Karah’s parental standing should turn on whether the women would have married had that option been available to them at the time the child was born. Thus, the court implicitly endorsed the view that if this same-sex couple had been married when the child was born, Karah’s parental status would have been the same as that of a husband who had consented to his wife becoming pregnant through donor insemination, applying the statutory parental presumption.

The Lambda Legal lawsuit in Wisconsin seeks to vindicate the same principle. Marriage equality has been available in Wisconsin since the U.S. Supreme Court announced on October 6, 2014, that it would not review a decision by the U.S. Court of Appeals for the 7th Circuit finding that Wisconsin’s ban on same-sex marriage was unconstitutional. This includes, of course, a requirement that Wisconsin recognize same-sex marriages contracted in other states.

Chelsea and Jessamy became friends in 2001, have lived as partners in a committed relationship since 2010, and were married in 2012 in New York. They live in Dane County, Wisconsin, and initiated the process of having a child together in 2013, using the services of a fertility clinic for Chelsea to conceive through assisted reproductive technology. Their child was born in March 2015 in Madison, and they filled out forms to obtain a birth certificate listing both of them as parents. But when they received the “Notification of Birth Certificate Registration” from the state’s Department of Health Services, Chelsea was listed as the only parent. Their lawyer corresponded with the Department, but the response was that DHS was “evaluating” the situation, and as of the filing of their complaint in the U.S. District Court on May 13, they had not received a correct birth certificate listing both of them as parents.

Their complaint points out that a Wisconsin statute embodies the parental presumption and applies it to situations where a wife becomes pregnant through assisted reproductive technology. Although the statute uses gendered language (referring to the husband and the wife), courts in other states, such as California, have held that such statutes should be construed as gender neutral in the case of same-sex married couples to be consistent with constitutional equality requirements. Their complaint alleges that failure to apply the parental presumption and issue the birth certificate violates the couple’s equal protection and due process rights under the 14th Amendment.

It may be that once the U.S. Supreme Court has issued a marriage equality ruling these parental presumption issues will eventually be sorted out in a consistent manner, but the differing approaches of state officials and courts suggests that this is one issue that will require further work to pin down the practical implications of marriage equality once the basic principle has been established.

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