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Kentucky Supreme Court Avoids Ruling on Clash Between Free Speech and Anti-Discrimination Law in T-Shirt Case

Posted on: November 3rd, 2019 by Art Leonard No Comments

In a case that drew 26 amicus briefs – an unusually high number for an argument in a Midwestern state high court, the Kentucky Supreme Court found an off-ramp from having to decide whether a small business that produces custom t-shirts has a right to refuse an order to print a shirt with whose message the business owner disagrees in Lexington-Fayetteville Urban County Human Rights Commission v. Hands on Originals, 2019 Ky. LEXIS 431, 2019 WL 5677638 (October 31, 2019).  The court decided that the appellant, the local human rights commission that had ruled against the business, had no jurisdiction because the entity that filed the discrimination complaint in the case was not an “individual” within the meaning of the local civil rights ordinance.

The case originated in February 2012 when a representative of the Gay & Lesbian Services Organization (GLSO), an advocacy organization in Lexington that was planning for its fifth annual Lexington Pride Festival, came to Hands On Originals, the t-shirt business, with an order for t-shirts to be used in connection with the Festival.  Hands on Originals is a small business with three owners, all of whom identify as Christians who operate the business consistently with their understanding of the Bible.  Their website has a non-discrimination statement, which includes “sexual orientations”, but says that “due to the promotional nature of our products, it is the prerogative of Hands on Originals to refuse any order that would endorse positions that conflict with the convictions of the ownership.”  The design that GLSO presented bore the name “Lexington Pride Festival” with rainbow-colored circles around an enlarged number “5” in recognition of the 5th year of the Festival, and no other text.  The employee who took the order reviewed it and quoted a price.

“The following month,” wrote Justice Laurence V. VanMeter in the court’s opinion, “a different GLSO representative contacted Hands On about the price quote and spoke with Adamson [one of the owners], who had not yet viewed the t-shirt design.  Adamson inquired into what the Pride Festival was and learned that the t-shirts would be in support of the LGBTQ+ community.  Adamson advised the GLSO representative that because of his personal religious beliefs, Hands On could not print a t-shirt promoting the Pride Festival and its message advocating pride in being LGBTQ+.  Adamson offered to refer GLSO to another printing shop.”  In the event, after word about this got out, a Cincinnati business printed the t-shirts for GLSO free of charge.  But GLSO’s president filed a complaint on behalf of the organization with the local human rights commission, charging violation of the Lexington-Fayetteville Human Rights Ordinance, which forbids discrimination against any individual based on their sexual orientation or gender identity by public accommodations.

The commission ruled in favor of the complainants, but was overruled by the Fayette Circuit Court, which instructed the commission to dismiss the charges.  The commission and GLSO appealed.  The Court of Appeals affirmed the circuit court, but the panel split, producing three opinions, out of which a majority concluded that the anti-discrimination provision was not violated by Hands On engaging in viewpoint or message censorship as a non-governmental entity.

Justice VanMeter’s opinion focused on the language of the ordinance, which provides that an “individual” claiming to be aggrieved by an unlawful practice can file a complaint with the commission.  The court concluded, by examining both the context of the ordinance and the contents of other states referenced in the ordinance, that “only an individual – being a single human – can bring a discrimination claim” under the ordinance.  Although an individual, a representative of GLSO, had filed the original complainant with the Commission, it was not filed in his individual capacity but rather as a representative of GLSO.  Thus, because “GLSO itself was the only plaintiff to file a claim” and “it did not purport to name any individual on whose behalf it was bringing the claim,” therefore GLSO “lacked the requisite statutory standing” to invoke the jurisdiction of the Human Rights Commission.

The court pointed out that Hands On “argued first to the Hearing Commissioner that GLSO, as an organization, did not have standing under the ordinance to bring a claim.”  The Hearing Commissioner rejected that argument, reaching a conclusion that the court rejects in this opinion: that an “individual” as named in the ordinance could also be an organization.  Hands On continued to push this argument through all levels of review, so it was not waived when the Kentucky Supreme Court agreed to review the lower court decisions.

“While this result is no doubt disappointing to many interested in this case and its potential outcome,” wrote Justice VanMeter, “the fact that the wrong party filed the complaint makes the discrimination analysis almost impossible to conduct, including issues related to freedom of expression and religion.  Normally in these cases, courts look to whether the requesting customer, or some end user that will actually use the product, is a member of the protected class.  And even when the reason for the denial is something other than status (conduct, for example), ways exist to determine whether the individual(s) (the requesting customer(s) or end user(s)) was actually discriminated against because of the conduct cited is so closely related to that individual’s status.  But in either scenario (whether the person allegedly discriminated against is the requesting customer or some end user) the individual is the one who has filed the lawsuit, so the court can properly determine whether that person has been discrimination against.”

VanMeter insisted that the court finds “impossible to ascertain” in this case whether the organization that filed the discrimination charge is a “member of the protected class.”  “No end user may have been denied the service who is a member of the protected class, or perhaps one was.  If so, then the determination would have to follow whether the reason for denial of service constitutes discrimination under the ordinance, and then whether the local government was attempting to compel expression, had infringed on religious liberty, or had failed to carry its burden” under the law.  “But without an individual . . .  this analysis cannot be conducted.”

This reasoning strikes us as hair-splitting in the extreme, but is not surprising considering that courts prefer to avoid deciding controversial issues if they can find a way to do so.  The Lexington-Fayetteville ordinance, by its terms, does not have protected classes.  Like the federal Civil Rights Act of 1964, it is a “forbidden grounds” measure, not a “protected class” measure.  Everybody, regardless of their race, is protected from race discrimination, for example.  There are no “protected classes” who have an exclusive claim to being protected against discrimination on any of the grounds mentioned in the ordinance.  Thus, VanMeter’s explanation is premised on a misconception of the ordinance.  But, as a decision by the Kentucky Supreme Court on a question of state law, it is final unless or until it is overruled by the Kentucky Supreme Court or rendered irrelevant by an amendment to the ordinance.  As it stands, however, it creates a large loophole in the coverage of the ordinance that was probably not intended by the local legislative bodies that enacted the measure.

Six members of the seven-member court sat in this case.  Four members of the court concurred in VanMeter’s opinion.  Justice David Buckingham wrote a separate concurring opinion.  Although he agreed with the court that GLSO lacked standing to file the charge, he wanted to express his view that the “Lexington Fayette Human Rights Commission went beyond its charge of preventing discrimination in public accommodation and instead attempted to compel Hands On to engage in expression with which it disagreed.”  He found support in the U.S. Supreme Court’s 1995 decision overruling the Massachusetts Supreme Judicial Court’s ruling that the organizers of the Boston Saint Patrick’s Day Parade case had violate the state’s human rights law by excluding a gay Irish group from marching in the parade, and a ruling earlier this year by the 8th Circuit court of Appeals reversing a district court decision concerning a videographer who sought a declaration that his business would not be required under Minnesota’s civil rights laws to produce videos of same-sex marriages.  In a lengthy opinion, Justice Buckingham cited numerous cases supporting the proposition that the government crosses an important individual freedom line when it seeks to compel speech.  “Compelling individuals to mouth support for view they find objectionable violates that most cardinal constitutional command,” he wrote, “and in most contexts, any such effort would be universally condemned.”  While reiterating his support for the ruling on “standing” by the majority of the court, he wrote, “if we were to reach the substantive issues, I would affirm the Fayette Circuit Court’s Opinion and Order,” which was premise in this First Amendment free speech argument.

Because the court’s decision is based entirely on its interpretation of the local ordinance and various Kentucky statutory provisions and avoids any ruling on a federal constitutional issue, it is not subject to appeal to the U.S. Supreme Court, which a straightforward affirmance of the Court of Appeals ruling on the merits would have been.

Most of the amicus briefs were filed by conservative and/or religious groups seeking affirmance of the Court of Appeals on the merits, and it is clear that the amici were determined to make this a major “culture wars” case in the battle against LGBTQ rights.  One amicus brief was filed on behalf of ten states that do not forbid sexual orientation or gender identity discrimination in their state civil rights laws.  There were also amicus briefs from progressive groups (including progressive religious groups) urging the court to reverse the Court of Appeals on the merits.  The only LGBT-specific organizational brief was filed by Lambda Legal.

Appellate Court of Illinois Recognizes Unjust Enrichment Cause of Action on Behalf Same-Sex Former Domestic Partner

Posted on: December 31st, 2014 by Art Leonard No Comments

The Appellate Court of Illinois ruled in Blumenthal v. Brewer, 2014 Il App (1st) 132250, 2014 Ill. App. LEXIS 904 (Dec. 19, 2014), that a state court judge who is the former same-sex partner of a physician can maintain a legal claim on the theory of unjust enrichment to seek compensation for her financial contributions towards the home they shared and the physician’s professional practice.  The court found that legislative and common law developments since 1979 had rendered the Illinois Supreme Court’s leading decision against lawsuits between former unmarried partners, Hewitt v. Hewitt, 394 N.E.2d 1204, obsolete.

Jane Blumenthal and Eileen Brewer met and became domestic partners in 1981 or 1982 when they were both graduate students at the University of Chicago.  Their partnership ended in 2008, after they had raised three children together.  By then, Blumenthal was a doctor in a lucrative partnership practice, and Brewer was an elected Illinois Superior Court judge. They had merged their finances during their partnership, and had registered as domestic partners when that option became available in Cook County in 2003.  They had cross-adopted each other’s children. They had purchased real estate together, and Blumenthal had used joint funds to buy into the medical partnership.  After Blumenthal moved out, Brewer assumed the continuing financial responsibilities of the house. The children are now all grown up and emancipated adults.  Blumenthal filed a partition action in 2010, seeking to divide the value of the house the women had purchased together to reclaim her share.  Brewer counterclaimed, seeking sole title to the property to “equalize” the parties’ assets, as she had been a stay-at-home mom for their kids until they were old enough for her to resume her legal career, Blumenthal’s medical partnership had been purchased with joint funds, and Brewer had carried the financial burden of the house since Blumenthal had moved out.  Blumenthal argued that under Hewitt v. Hewitt Brewer could not maintain such a counterclaim, and Cook County Circuit Judge LeRoy K. Martin agreed, dismissing her claim.  Brewer, represented by the National Center for Lesbian Rights (NCLR) and Chicago Attorney Angelika Kuehn, appealed with amicus support from the ACLU of Illinois and Lambda Legal.

When the Illinois Supreme Court decided Hewitt, there were strong legislative policies in effect supporting that court’s view that such a lawsuit could not be brought by an unmarried cohabitant, including a statute criminalizing unmarried cohabitation, the state’s statute abolishing the doctrine of common law marriage in Illinois, and court decisions disfavoring child custody for parents who were cohabiting outside of marriage.  Brewer argued successfully to the appellate court that the legislative and judicial landscape in Illinois had changed so drastically since 1979 that Hewitt no longer represented an accurate view of how Illinois law should treat such a claim today, and the court agreed in an opinion by Justice Margaret Stanton McBride.  The judge prefaced a detailed discussion of the historical evidence by stating: “We find that the public policy to treat unmarried partnerships as illicit no longer exists, that Brewer’s suit is not an attempt to retroactively create a marriage, and that allowing her to proceed with her claims against her former domestic partner does not conflict with this jurisdiction’s abolishment of common law marriage.”

In addition to agreeing that changes in the law had rendered Hewitt obsolete, the court pointed out that the decision “may have had unintended consequences.  The court acknowledged its intention to enforce legislative policies that intentionally penalized unmarried couples and their children as a means of discouraging cohabitation and encouraging marriage,” wrote McBride.  “The ruling, however, may have the contrary effect – refusing to hear claims between unmarried cohabitants creates an incentive for some to not marry.  A cohabitant who by happenstance or design takes possession or title to jointly-acquired assets is able to retain them without consequence when their ‘financially vulnerable’ counterpart is turned away by the courts.”  She found support for this argument in a law review article by Candace Saari Kovacic-Fleischer, “Cohabitation and the Restatement (Third) of Restitution and Unjust Enrichment,” 68 Wash. & Lee L. Rev. 1407, 1424 (2011), from which she quoted at length.

“After having reviewed the legislation that was enacted during the years that Brewer and Blumenthal were together, buying a house, having children, dividing up their domestic responsibilities and pursuing their legal and medical careers, we conclude that although Brewer and Blumenthal were not legally entitled to marry in this jurisdiction, the legislature no longer disfavors their 26-year cohabitation or Brewer’s claims against Blumenthal,” wrote Justice McBride. “Furthermore, Brewer does not allege an agreement with Blumenthal based on illicit consideration of sex, which was the primary historical rationale for rejecting cohabitation agreements.  Instead, Brewer, who never had the option of marrying Blumenthal in Illinois, alleged that the couple intentionally comingled and shared their assets based on a mutual commitment and expectation of a lifelong relationship, that they divided their domestic and work responsibilities to best provide for the three children they had together, and that neither partner intended for their decisions and family roles to leave Brewer at a financial disadvantage later in life.”  The court also noted, of course, that after the couple split up, Illinois passed first a civil union law and then a marriage equality law, further confirming the view that Illinois does not consider same-sex relationships to be “illicit” in the sense that term was used by the Illinois Supreme Court in Hewitt.

The court also noted that its decision was in line with developments in other states, including the leading California case of Marvin v. Marvin, the nation’s most celebrated “palimony” case, the revision of the common law summary in the Restatement (Third) of Restitution and Unjust Enrichment, and the changed view embraced in Corbin’s Contracts treatise, which identified the Marvin decision as having decisively influenced courts in other states to become receptive to palimony claims.  The Illinois Supreme Court had relied on previous editions of these two published sources in Hewitt.

McBride concluded that in light of the court’s determination that Hewitt no longer controlled the outcome, it was unnecessary for it to address Brewer’s argument that a contrary decision would violate the Illinois and federal constitutional guarantees of due process and equal protection of the laws.  The court vacated the circuit court’s dismissal order and remanded the case “with directions to consider the parties’ remaining arguments,” as to which the court expressed no opinion.  As part of her opposition to Brewer’s counterclaim, Blumenthal had contested some of Brewer’s factual assertions, but the trial court had not resolved that dispute when it determined that the counterclaim had to be dismissed as a matter of law.

A Brief Remembrance of Steven W. Siegel

Posted on: January 23rd, 2012 by Art Leonard No Comments

This morning I attended the funeral service for Steven W. Siegel, a friend of more than thirty years whose premature death at 65 is much to be deplored.  Although I thought the remembrances spoken at the service evoked this wonderful man very well, I wanted to add a few comments to help memorialize him in cyberspace.

When I first met Steve after joining Congregation Beth Simchat Torah (as it was then named), NYC's gay synagogue, in 1977, he was also a relatively new member but I believe had already claimed the synagogue's newsletter as his domain.  And this was fairly typical of Steve, who was a devoted historian and archivist.  He pushed the 92nd Street Y to develop an appropriately-organized archive of its sound recordings of musical and other cultural events, winning himself a job as an Archivist at a time when few such institutions employed people in such a capacity, and ultimately becoming Director of the Y's library as well, until that organization made the lamentable decision in 2009 to disperse its collection and convert the library space into offices, precipitating his early partial retirement.  (Steve continued to consult with the Y on its archives and to undertake private research jobs as a historian-genealogist until he became too ill to continue.)

When my Cornell classmate Mark Schwartz and I resolved after attending our 5th reunion event in 1979 to start an LGBT alumni association, Steve was an early recruit, being already very active in Cornell alumni activities, and played a major role in getting the Cornell University Gay and Lesbian Alumni Association (CUGALA) off the ground and sustaining it through difficult times. (He was a member of the class of 1968 in the College of Engineering.) 

Those were also the days when Steve was present and participating in the creation of the emerging field of Jewish genealogy, one of his lifetime passions.  Up to his death, he had served continuously as a board member of the Jewish Genealogical Society in New York City, had been a co-editor of its newsletter (after having co-edited an independent Jewish genealogy publication, Toledot, for several years), and had also served as the organization's president.  He was also very active in the NY archivist community.

Steve was very active in Cornell alumni affairs in addition to CUGALA – whose main coordinator he was for several decades.  He was active on the board of Cornell University Hillel and the Cornell Alumni Association, participated in interviewing high school students in the NYC metro area who were interested in learning about Cornell, was a president of his Cornell class, and frequently attended Cornell events in New York and Ithaca. 

But all this organizational involvement, while typical of Steve, who was a persistent and valued volunteer, hardly begins to say everything about him. 

For almost 30 years, he was partnered as soulmates with Rob Selden, who passed away a few years ago.  They were absolutely devoted to each other, despite maintaining separate residences.  At almost any public event you could imagine, they were together, traveling, going to organizational events, and were frequent patrons of opera, symphony concerts, vocal recitals and theater.  (My most frequent surprise encounters with them were in the intermissions at NYC Opera at Lincoln Center.)  Rob was sometimes a difficult person to get along with, being very argumentative, while Steve, although also a perfectionist, was much more accommodating to the quirks of others.  As a result, they worked very well as a couple, complementing each other, and sharing great enthusiasm and curiosity about everything going on.

Steve only confided about his battle with cancer with a relatively small circle of acquaintances he wanted to know what was going on.  I was privileged to be part of that group.  When Cornell University announced that Steve would be honored with a special alumni service award named after former CU President Frank Rhodes in a ceremony in Ithaca, I immediately contacted him about my husband Tim and I going to the ceremony.  As it turned out, we were able to facilitate Steve's last visit to Cornell for the September 16, 2011, event.  Tim rented a car and drove us, which was easier on Steve than taking the Cornell bus.  He put off by a week the start of a new regimen of chemotherapy in order to be able to make this trip, which was exhausting for him but I think very important for his morale. 

Although we continued to exchange email, I last saw Steve when we had dinner on October 22.  I had originally invited him to join me for the NY Philharmonic concert that night, but he had declined because he hoped to be in Ithaca that weekend for an alumni association board meeting.  But in the event he didn't feel well enough to make the trip, so we had dinner before I went to the concert, having previously exchanged my other ticket.  As per his usual request, we had Chinese food, of which Steve was a particular fan!  Although we continued to have email contact until mid-December and were planning another get-together, it was not to be.

I will really miss him, and I think so many people and organizations  he was affecting on a regular basis will miss him.  He was part of the glue holding CUGALA together for many years, and I hope some of the younger alumni who have shown interest will be able to fill that gap, but it will be difficult, given how much his personal energy and diligence meant to the organzation.  Farewell, friend!

A Suggested Paradigm Shift in the Health Care Debate

Posted on: June 1st, 2011 by Art Leonard 3 Comments

The current issue (cover date June 9, 2011) of The New Republic includes one of the most important pieces I've read about the issue of health care reform.  It is by Daniel Callahan (President Emeritus of the Hastings Center) and Sherwin Nuland (Retired Clinical Professor of Surgery from Yale University), and is titled "The Quagmire."   Callahan and Nuland succinctly and effectively make the argument that a basic reorientation of philosophy is necessary for U.S. health care if we are not to bankrupt ourselves with increasing health care costs.

As they see it, the essence of the problem is that advances in medical technology (very expensive advances, in terms of cost to patients and government) have produced incremental improvements in survival rates without curing any of the things that eventually kill most of us.  The result is that people are living much longer than they did a few generations ago, but their last few years are imposing backbreaking expenses on themselves, their families, and our broader society, without a significant pay-off in terms of quality of life. 

The ideal would be for modern medicine to allow all of us to live healthy and productive lives for 90+ years and then to die suddenly without any prolonged or painful illneses.  But that's not what our system has produced.  Instead, we are keeping people alive to die slowly from various degenerative conditions, and a vastly disproportionate amount of the money we are spending on health care is concentrated on those last few years of life.  For example, with rare exceptions of a few kinds of cancer that can be cured or put into permanent remission if caught very early (for example, some kinds of prostate cancer and breast cancer), most of the time people diagnosed with cancer will die from it, frequently after lengthy, painful and exhausting courses of expensive chemotherapy.  Nobody has found a cure for heart attack or stroke, just various forms of preventive care and palliative care.  Alzheimer's remains largely a mystery, but our health care system, if paid to do it, can keep people with Alzheimers alive for years after their active mental life has essentially ceased.

What Callahan and Nuland propose is a reorientation of our health care system to focus most of the expenditures where they can do the most good – child health, nutrition, sanitation, prevention (vaccinations, for example), and to help people to the extent we can do so to maintain a productive life through their working years, but that we should pretty much abandon high tech efforts to extend life into extreme and painful old age.  This means rationing of health care.  It isn't exactly "death panels" but some people will scream that slogan as soon as they read it.  (Ironically, these will be largely the same people who are demanding massive cuts to Medicare and Medicaid as a partial solution to government deficits, and who opposed the public option as part of health care reform, so that private insurance companies — which in a very real sense do ration care and operate the virtual equivalent of death panels by denying treatment coverage — can continue to take their cut, unnecessarily inflating overall health care costs.  People like Paul Ryan, for example….)

Anyway, agree or disagree either in broad outline or as to particular details, I think one must read and think about what Callahan and Nuland, men with excellent credentials and knowledge to bring to this policy debate, have to say.  I found much of it convincing.