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Illinois Federal Court Allows Discharged Gay Organist to Pursue ADA Hostile Environment Claim against Archdiocese of Chicago

Posted on: October 2nd, 2018 by Art Leonard No Comments

U.S. District Judge Edmond E. Chang ruled on September 30 that Sandor Demokovich, a church organist and choir director who was fired from his position at St. Andrew the Apostle Parish, Calumet City, in the Archdiocese of Chicago, after marrying his same-sex partner, may pursue a hostile environment disability harassment claim against his former employers under the Americans with Disabilities Act (ADA). Demkovich v. St. Andrew the Apostle Parish, 2018 U.S. Dist. LEXIS 168584 (N.D. Ill.).  In previous motion practice, Judge Chang found that Title VII and state and local antidiscrimination claims against the defendants for discriminatory discharge because of his sexual orientation and marital status are barred by the “ministerial exception” recognized by the Supreme Court in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 565 U.S. 171 (2012).  In this ruling, he found that claims of hostile environment harassment because of the plaintiff’s sex, sexual orientation and marital status are also barred, due to Free Exercise and Establishment Clause concerns.

Demkovich began working as Music Director, Choir Director and Organist at St. Andrew in September 2012, and was fired in September 2014. His immediate supervisor, Reverend Jacek Dada, St. Andrew’s pastor, knew that Demkovich was gay and that he was engaged to another man, and, according to Demkovich’s allegations, subjected him to abusive and harassing behavior, which built to a crescendo as the date of Demkovich’s impending wedding approached.  Witnesses averred that Dada told them he would fire Demkovich if Demkovich married, and he was true to his word.  In addition, Demkovich, who had an obvious weight problem traceable to his struggles with diabetes, also suffered under Dada’s unwelcome comments about his weight and medical condition.  “Reverend Dada made harassing remarks about Demkovich’s weight, often urging him to walk Dada’s dog to lose weight, and telling Demkovich that he needed to lose weight because Dada did not want to preach at his funeral,” wrote Chang, summarizing the allegations in the complaint.  “Dada also repeatedly complained about the cost of keeping Demkovich on the parish’s health and dental insurance plans because of his weight and diabetes.  In 2012, when Demkovich declined a dinner invitation from Dada because he did not have his insulin with him, Dada asked if Demkovich was diabetic and told him that he needed to ‘get his weight under control’ to help eliminate his need for insulin.”

Being an organist and choir director seems to be a profession that attracts gay men, to judge by the number of cases we have seen over the years, including some of the earliest sexual orientation discrimination cases. Lawsuits challenging dismissals of gay church organists and choir directors almost invariably founder on the courts’ solicitude for defenses based on the First Amendment protection of the decisions by churches about whom to employ in positions directly implicated in carrying out their religious mission, and there is little disagreement among those judges who have faced the question that a church organist and choir director plays a ministerial role in the life of a church.  As to that, Judge Chang found that Demkovich’s concession that his is a “minister” for this purpose precludes his pursuit of wrongful discharge discrimination claims, whether premised on Title VII and the ADA or similar state or local laws, based on the Supreme Court’s determination that the government should never be involved in telling a church whom to employ as a minister.

However, Chang found, the Supreme Court’s Hosanna-Tabor case was a discharge case, and can be read to be limited to discrimination claims with respect to tangible employment issues, such as hiring, promotion, assignments, compensation. The Court spoke in that case about the right of a church to decide whom to employ as its minister, but not necessarily how that individual would be treated based on characteristics other than their religion, as to which Title VII provides for an express exception allowing religious institution employers to establish religious criteria for employment.  On the other hand, he found, one must resort to circuit court precedent to determine whether the ministerial exemption should also bar hostile environment harassment claims by a ministerial employee against a religious employer.  Since these claims involve “intangible” harms, he concluded that it was possible that the ministerial exception does not apply to them.  Instead, on a case-by-case basis, the court would have to determine whether allowing a hostile environment claim to go forward would raise significant 1st Amendment free exercise or establishment concerns.

As to this, he concluded, given the Catholic Church’s well-known public opposition to same-sex marriage, alleging a hostile environment based mainly on adverse comments by a supervisor about an employee’s proposed same-sex marriage would intrude unduly into the 1st Amendment rights of the church, thus ruling out that claim as well. “Although the ministerial exception does not bar Demkovich’s hostile-environment claims (to repeat, he does not challenge a tangible employment action), the Court concludes that litigation over Reverend Dada’s alleged harassment based on Demkovich’s sex, sexual orientation, and marital status would excessively entangle the government in religion.”  He noted that defendants offered a “religious justification for the alleged derogatory remarks and other harassment: they ‘reflect the pastor’s opposition, in accord with Catholic doctrine, to same sex marriage,’” he wrote.

“Whether Catholicism in fact dictates opposition to same-sex marriage is not subject to court scrutiny,” wrote the judge, quoting 7th Circuit authority to the effect that “once the court has satisfied itself that the authorized religious body has resolve dthe issue, the court may not question the resolution.”  Furthermore, he observed, the Church’s “official opposition to gay marriage is commonly known (nor does Demkovich question it), and there is no reason to question the sincerity of the Archdiocese’s belief that the opposition is dictated by Church doctrine.”  Also, Demkovich’s ministerial role “weighs in favor of more protection of the Church under the First Amendment,” he continued, noting that “the church has absolute say in who will be its ministers.”  Chang pointed out several different ways in which allowing this hostile environment claim to proceed would raise Establishment Clause as well as Free Exercise Clause problems.

On the other hand, found Chang, there seemed no salient 1st Amendment concern in allowing Demkovich to pursue a hostile environment disability claim under the ADA, assuming that hostile environment claims are actionable under that statute – an issue not yet addressed by the Supreme Court.  Although the Church’s ministerial exemption bars suing it about a decision concerning whom to employ as a minister, wrote Chang, it was hard to discern a First Amendment right of the Church that would be abridged by questioning the disability-related hostile treatment of a minister whom the Church was willing to employee.

He wrote, “The Court first notes that the Seventh Circuit has not yet expressly decided that the ADA ever permits a hostile work environment claim. Instead, the Seventh Circuit has assumed – in both published and unpublished decisions – that there is such a claim under the ADA.  In light of the similarity between Title VII and the ADA in protection against discriminatory workplace conditions, this Court too assumes that the ADA does provide for hostile work environment claims.  When analyzing hostile work environment claims under the ADA, the Seventh Circuit has ‘assumed that the standards for proving such a claim would mirror those established for claims of hostile work environment under Title VII.”

Significantly, he noted, the Archdiocese “offers no religious explanation for the alleged disability discrimination. The Archdiocese justifies [Rev. Dada]’s comments as ‘reflecting the pastor’s subjective views and/or evaluation of Plaintiff’s fitness for his position as a minister.’  But this is not a religious justification based on any Church doctrine or belief, at least as proffered so far by the defense.  So the disability claim does not pose the same dangers to religious entanglement as the sex, sexual orientation, and marital-status claims.  Nothing in discovery should impose on religious doctrine on this claim.  Rather, the inquiry will make secular judgments on the nature and severity of the harassment (and whether it even happened), as well as what, if anything, the Archdiocese did to prevent or correct it.  The Religious Clauses do not bar Demkovich from pursuing the hostile-environment claims based on disability.”

The Archdiocese had also argued that “the alleged conduct was not severe or pervasive, was not physically threatening, and is not alleged to have altered the terms and conditions of Plaintiff’s employment,” but Chang noted that “this case is at the pleading stage, so Demkovich need not plead more facts than necessary to give the Archdiocese ‘fair notice of his claims and the grounds upon which those claims rest, and the details in his Amended Complaint present a story that holds together.’”  Judge Chang found that the allegations thus far were sufficient to place a hostile environment claim in issue for purposes of defeating a motion to dismiss.

Thus, the bottom line is that defendants’ motion to dismiss was granted as to the hostile environment claims based on sex, sexual orientation, and marital status, but denied as to the claims based on disability.”

Demkovich is represented by Kristina Buchthal Regal of Lavelle Law, Ltd., Palatine, IL.

Indiana Federal District Court Finds No 1st Amendment Protection for College Teacher’s Sexist, Racist, Homophobic and Islamophobic Classroom Comments

Posted on: September 30th, 2018 by Art Leonard No Comments

Ruling on cross-motions for summary judgment in a lawsuit against a state university by a tenured professor who was suspended after an investigation of classroom conduct and statements brought to light by student complaints, Senior U.S. District Judge James T. Moody ruled that the 1st Amendment did not protect, inter alia, certain statements the professor made about homosexuality. Poulard v. Trustees of Indiana University, 2018 U.S. Dist. LEXIS 167617 (N.D. Ind., Sept. 28, 2018).

Jean Poulard has taught political science at Indiana University Northwest Campus (IUN) for more than 30 years, earning tenure in 1990. On June 1, 2015, Gianluca DiMuzio, then chair of the political science department, in which capacity he looked at student course evaluations of department faculty, communicated to Ida Gillis, then Director of Affirmative Action for IUN, student evaluation comments raising concerns about Professor Poulard’s behavior and statements in the classroom. The student comment that first raised a red flag was that Poulard would “frequently voice his racist and sexist views” and that he was “obscenely flirtatious with his female students, often saying perverted things.”

Prof. Di Muzio also commented that he had personally observed Poulard kissing students on the hand and cheek. Gillis and DiMuzio extended their investigation over several years of student evaluations, uncovering a variety of incendiary classroom comments attributed to Poulard, among them a student writing, “I took great offense when he stated how wrong and disgusting it is to be gay and how terrible and messed up a child with same sex parents is going to be in the head.”  There was also a statement that “black people were destroying Chicago and his solution to crime would be a weekly hanging.”

When confronted with these statements in the ensuing disciplinary proceeding, Poulard denied making some statements, softened others (such as claiming he spoke in favor of capital punishment, not weekly hangings), but did not deny hugging and kissing students or his comments about gay people and gay parents.

Gillis wrote a report, supplemented by Di Muzio’s complaint, which was presented to the Vice Chancellor for Academic Affairs, who concluded that Poulard had violated the University’s Sexual Misconduct Code and Code of Academic Ethics, suspending him for a month without pay, placing a letter of reprimand in his personnel file, and requiring him to complete the University’s sexual misconduct training.

Poulard brought a federal suit, claiming breach of his tenured employment contract as well as violations of his constitutional rights to due process and freedom of speech. Judge Moody found that material fact disputes about when the University began to include a disclaimer of contractual effect in its Academic Handbook precluded summary judgment on the breach of contract claim, but rejected the due process claim, finding that the procedures leading up to the Vice Chancellor’s ruling comported with standards of procedural fairness.

As to the First Amendment claim, and particularly the comments about gays and gay parents, Moody found no 1st Amendment protection for Poulard’s remarks. Although some of his statements, for example, “regarding gays, Muslims, and African Americans and crime, could potentially be matters of public concern,” wrote Moody, that was only one factor in applying the Supreme Court’s Pickering standard governing public employee speech, especially as applied in the 7th Circuit under Piggee v Carl Sandburg College, 464 F. 3d 667 (2006).  “Applying a balancing test,” he wrote, “the Seventh Circuit found that the instructor’s interest in making comments regarding religion and homosexuality were not protected when balanced against the school’s interest in the instructor’s adherence to the subject matter of the course she was hired to teach (which in that case was cosmetology).”

Moody continued, “In the case at hand, [Vice Chancellor] McPhail specifically restricted plaintiff’s speech out of concern for ‘developing among students respect for others and their opinions.’ The court agrees with McPhail that IUN had strong interests in restricting plaintiff’s statements in order to preserve respect for the student body, harmony among the IUN population, and to prevent the exclusion and isolation of the minorities targeted by plaintiff’s speech.  McPhail also concluded that the statements were not germane to the topic of the class.  However, plaintiff argues that his case can be distinguished from Piggee on this issue, because, since he teaches a political science course, his statements and comments were within the scope of the course.  The court disagrees.”

“It is true that the teacher in Piggee taught cosmetology which was even further off topic from the instructor’s speech,” Moody explained. “However, here, plaintiff’s course was a course involving Latin American politics, an issue that was not addressed in any of the statements at issue.  Second, the court recognizes that faculty members have some right to engage in academic debates, pursuits, and inquiries.  And being a political science course should give professors some leeway to delve into topical or hot-button social and political issues.  However, statements about gays being ‘disgusting,’ criticizing religious (Muslim) clothing, and asserting that African Americans should be ‘hung,’ are not topical statements and do not invoke hot-button issues.  They sound much more like harassing statements that IUN has a strong interest in eliminating in order to foster an inclusive learning environment for all students, including gays, Muslims, and African Americans.  Accordingly, when performing the Pickering balancing test, the court concludes that the interests of IUN outweigh Poulard’s interests.”  Thus, the court granted defendants’ motion for summary judgment as to the 1st Amendment free speech claim.  Judge Moody also found that a separate free speech claim under the Indiana Constitution could be resolved on the same analysis.

Judge Moody was appointed to the bench by President Ronald Reagan.

Federal Court Orders Wisconsin to Cover Transition Medical Costs for Transgender State Employees

Posted on: September 25th, 2018 by Art Leonard No Comments

U.S. District Judge William M. Conley ruled on September 18 in Boyden v. Conlin, 2018 WL 4473347, 2018 U.S. Dist. LEXIS 158491 (W.D. Wis.), that Wisconsin’s refusal to cover “procedures, services, and supplies related to surgery and sex hormones associated with gender reassignment” for its transgender state employees violates the ban on sex discrimination in Title VII of the Civil Rights Act of 1964 and in the Affordable Care Act, as well as the Equal Protection Clause of the 14th Amendment.  Conley had previously awarded a preliminary injunction to transgender Medicaid participants in Wisconsin who were seeking similar coverage under that program, having concluded that they were likely to prevail on the merits of their claims. See Flack v. Wisconsin Department of Health Services, 2018 WL 3574875 (W.D. Wis., July 25, 2018). In this new decision, Judge Conley was ruling on motions for summary judgment by the plaintiffs and the defendants, so this is a final ruling on liability, although there may be a trial on damages if the state doesn’t settle the case.

A Wisconsin statute mandates the state to provide insurance coverage to “aid public employees in protecting themselves against the financial hardships of illness, thereby promoting economy and efficiency in public service by facilitating the attraction and retention of competent employees, by enhancing employee morale and by establishing equitable benefit standards through public employment.” A Government Insurance Board (referred to as GIB) adopts “Uniform Benefits” for the state’s Group Health Insurance Plan, which then contracts with private insurance companies to provide the mandated benefits to state employees.  Employees and their government employers pay money into an Employee Trust Fund (ETF) to finance the benefits.

The exclusion of coverage for hormones and surgery for gender transition has been part of the “Uniform Benefits” standard in Wisconsin in some form since 1994, when GIB adopted the exclusionary language, explaining that such benefits and services were generally deemed by insurance companies to be “experimental and not medically necessary.” The defendants claim that the exclusion of coverage is not total — that hormone treatment for gender dysphoria is covered “unless specifically made a course of treatment leading to or involving gender conforming surgery,” but there is some dispute about how this is interpreted and applied in practice.

“Still,” wrote Conley, “there is no dispute that mental health counseling as a stand-alone treatment for gender dysphoria is covered, whereas hormone therapy involving gender reassignment surgery is not covered; and there is no dispute that the surgery itself is not covered.” Furthermore, the “Uniform Benefits” also excludes from coverage “treatment, services, and supplies for cosmetic purposes,” with the explanation that “psychological reasons do not represent a medical/surgical necessity.”

During the Obama Administration, it appeared as if GIB might change its position, as the Department of Health and Human Services (HHS) was taking the position that the Affordable Care Act’s ban on sex discrimination in insurance benefits would include gender identity discrimination, but the guidance HHS put out stopped short of stating this meant the gender-confirming surgery must be covered. There seemed a possibility that GIB would authorizes changes for the plan year beginning January 1, 2017, but the state’s Republican administration was pressing GIB to find economies rather than expanding existing benefits.

The ETF staff at first recommended that the exclusion be removed, based on the possibility that the ACA would require coverage, and at its July 12, 2016, meeting, GIB voted unanimously to amend the uniform benefits to remove the exclusion effective January 1, 2017. But GIB subsequently reconsidered that decision at the request of the Governor’s Office, and on December 29, 2016, voted to reinstate the Exclusion if four contingencies were satisfied.  A Deputy Attorney General had sent GIB a memo arguing that the federal HHS rules interpreting the ACA to cover gender identity discrimination were “unlawful,” a position that a group of states including Wisconsin had taken in a lawsuit filed in the federal district court for the Northern District of Texas.  Subsequently, the federal district judge there issued a nationwide injunction, blocking HHS from enforcing its gender identity discrimination policy.

Also, of course, after Donald Trump was elected in November 2016, bringing in Republican majorities in both houses of Congress, Republican leaders announced their goal of repealing the ACA, so it appeared likely that the exclusion might not need to be lifted to comply with that law.

At a GIB meeting on December 13, 2016, an attorney from the Wisconsin Department of Justice recommended that “the Board follow the law as it currently stands,” noting that Wisconsin was a plaintiff in the Texas lawsuit. Ultimately, one of the contingencies that GIB embraced for rescinding their prior decision on December 30 would be the federal court in Texas issuing its injunction, the other contingencies being compliance with Wisconsin statutes, renegotiation of contracts with insurance companies that maintained or reduced premium costs, and receiving an opinion from the state’s lawyers that “the action taken does not constitute a breach of board members’ fiduciary duties.”  In January 2017, the administrators concluded that the contingencies justifying rescinding the prior vote had been met.

For Judge Conley, however, this political by-play was essentially irrelevant to his ruling on the claims by the plaintiffs, transgender state employees whose federal statutory and constitutional rights were being violated. He focused on the reasons articulated by GIB members for their votes, which varied from person to person.  Some were concerned about the Texas court’s preliminary conclusion that the Obama Administration’s interpretation of ACA was unlawful.  There was some discussion of costs, but nobody would testify that specific numbers were discussed by GIB, and several members testified that there was no discussion about the medical necessity or safety of the transition procedures, although in this litigation the state presented “expert testimony” (which Judge Conley found deficient) questioning both of those issues.

One GIB member testified that he voted to remove the exclusion because he “viewed the exclusion as discriminatory and supports the right of transgender individual to get the healthcare they need” and that “it’s not costly to add it to the group plan.” This proved to be an apt prediction of what Judge Conley ultimately found, based on the testimony of experts on behalf of the plaintiffs.

Wisconsin is within the 7th Circuit Court of Appeals’ jurisdiction.  The 7th Circuit’s rulings are binding on Judge Conley’s District Court in Madison, the state capital.  And, he found, the 7th Circuit has emerged as a champion of LGBT rights with its 2017 decisions in Hively v. Ivy Tech Community College, 853 F.3d 339 (7th Cir. 2017), and Whitaker v. Kenosha Unified School District, 858 F.3d 1034 (7th Cir. 2017).  In Hively, the appeals court held that discrimination because of sexual orientation is prohibited by Title VII’s ban on sex discrimination in employment.  In Whitaker, the court ruled that discrimination because of gender identity is prohibited by Title IX’s ban on sex discrimination in public schools.  Putting them together, Conley found it easy to conclude that gender identity discrimination violates Title VII as well, despite an old 7th Circuit decision, Ulane v. Eastern Airlines, Inc., 742 F.2d 1081 (7th Cir. 1984),  ruling out such claims, which has never been explicitly overruled by the circuit court.

He wrote that “all individuals, whether transgender or cisgender, have their own understanding of what it means to be a woman or a man, and the degree to which one’s physical, sexual characteristics need to align with their identity. For example, a cisgender woman who has a mastectomy for treatment of breast cancer may opt not to have reconstructive surgery.  That choice, however, may be untenable to another cisgender woman placed in the same position.  Similarly, a transgender woman may require breast augmentation to address her gender dysphoria, whereas another transgender woman may not.  Nothing about offering coverage without regard to one’s natal sex forces individuals to have surgery to conform their physical traits to their identified gender.  Instead,” he wrote, “the Exclusion implicates sex stereotyping by limiting the availability of medical transitioning, if not rendering it economically infeasible, thus requiring transgender individuals to maintain the physical characteristics of their natal sex.  In other words, the Exclusion entrenches the belief that transgender individuals must preserve the genitalia and other physical attributes of their natal sex over not just personal preference, but specific medical and psychological recommendations to the contrary.  In this way, defendants’ assertion that the Exclusion does not restrict transgender individuals from living their gender identity is entirely disingenuous, at least for some portion of that population who will suffer from profound and debilitating gender dysphoria without the necessary medical transition.”

In other words, this judge really “gets it.” The opinion exhibits a profound understanding of why this challenged Exclusion is really a form of sex discrimination, which is outlawed by the relevant statutes.  Furthermore, since it is sex discrimination in a government policy, it is subject to “heightened scrutiny” under the Equal Protection Clause, throwing the burden on the government to show that the policy substantially advances important state interests.  And, as to that, Judge Conley found that the evidence presented by the state as to its purported reasons for rejecting ETF’s recommendation falls short.

“Not only is the record devoid of any evidence to show that GIB members voted as they did for cost or efficacy reasons,” he wrote, “the evidence is overwhelming that the actual or genuine reason for the reinstatement [of the Exclusion] had to do with the DOJ’s guidance – specifically, the belief that the Texas court’s entry of an injunction absolved defendants of any legal obligation to provide coverage.” But, confusingly, the defendants did not put this forward as their reason in support of their motion for summary judgment, instead pointing to costs and efficacy, as to which their expert’s supporting testimony was woefully deficient.  Indeed, Judge Conley questioned whether he actually qualified as an “expert” at all.  “Accordingly,” he wrote, “the court concludes that the Exclusion does not survive heightened scrutiny,” and thus is unconstitutional.

While Judge Conley concluded that the individual named government defendants who were sued in their official capacity were entitled to qualified immunity against personal liability, since thus far there is no 7th Circuit or Supreme Court precedent holding that the exclusion is unconstitutional, this is no bar to equitable and monetary relief for the plaintiffs against the state agencies who made the challenged decisions.

This doesn’t conclude the case before Judge Conley. In the final part of his opinion, titled “Trial Plan,” he laid out the various claims for relief that plaintiffs can pursue at trial, having won a summary judgment that the Exclusion violates their statutory and constitutional rights.  “While the court will determine any equitable relief at trial, as well as award of attorneys’ fees and costs,” he wrote, “defendants have demanded a jury trial as to plaintiffs’ claims for compensatory and/or punitive damages, which is their right.  And so a jury there shall be.”  The court scheduled a pretrial conference for the last week in September.

The role of the jury in such a case is to determine that amount of money to which the plaintiffs are entitled for the violation of their rights. The state is undoubtedly counting on a jury of taxpayers to be revolted by the thought of awarding substantial sums to transgender plaintiffs, but they should not be so confident, as public opinion has been swinging behind the transgender rights movement. The judge will determine appropriate attorneys’ fees and costs to award to plaintiffs as the prevailing parties on the merits of their claims.

On September 24, Judge Conley issued an Opinion and Order setting a trial date on damages of October 9, 2018, and ruling on motions in limine and related motions.  Most notably, he found moot a motion to exclude testimony by the defendants’ experts, inasmuch as their testimony went to the issues of cost and efficacy, which were no longer in play as a result of the grant of summary judgment on the merits to plaintiffs. See 2018 U.S. Dist. LEXIS 162757.

Plaintiffs Alina Boyden and Shannon Andrews are represented by John Anthony Knight of the ACLU Foundation, Chicago, Laurence J. Dupuis, of the ACLU of Wisconsin Foundation, Inc., Milwaukee, WI, and local counsel Michael Godbe and Nicholas E. Fairweather, of Hawks Quindel, S.C., Madison, WI.

Federal Court Orders State Department to Issue Gender-Neutral Passport to Intersex Applicant

Posted on: September 24th, 2018 by Art Leonard No Comments

U.S. District Judge R. Brooke Jackson has ordered the U.S. State Department to issue a gender-neutral passport to Dana Alix ZZyym, who was identified as female at birth but who rejects the gender binary, identifying neither as male nor female. Lambda Legal represents Zzyym in this long-running lawsuit in the federal trial court in Denver.  Zzyym v. Pompeo, 2018 U.S. Dist. LEXIS 160018, 2018 WL 4491434 (D. Colo., September 19, 2018).

 

Zzyyym is described by Judge Jackson as “an intersex individual” who submitted a passport application in September 2014. In common with many intersex people, Zzyym uses the pronouns they, them, and their, but Judge Jackson skirts the pronoun issue by using ZZyym’s gender-neutral first name throughout the opinion in place of pronouns.

 

“Instead of checking the box labeled ‘M’ for male or ‘F’ for female on the application form, Dana instead wrote ‘intersex’ below the ‘sex’ category,” wrote Jackson. “By separate letter Dana informed the passport authorities that Dana was neither male nor female.  The letter requested ‘X’ as an acceptable marker in the sex field to conform to International Civil Aviation Organization (‘ICAO’) standards for machine-readable travel documents.  It is undisputed that in every other respect Dana is qualified to receive a passport.”

 

But the State Department denied the application. At the bureaucratic level at which passports are processed, there is no flexibility.  One must selection M or F or be denied.  In the denial letter, the Department said it would issue Dana a passport listing their gender as “female” because that was the sex listed on the driver’s license that they submitted to prove Dana’s identity.  Or, said the Department, Dana could have M listed if they provided “a signed original statement on office letterhead from your attending medical physician” attesting to their “new gender.”  Obviously, the low-level bureaucrats at State had trouble getting their heads around the concept of intersex, confusing it with transgender.

 

Dana submitted a letter appealing this denial, including “two sworn statements by physicians from the United States Department of Veterans Affairs Medical Center in Cheyenne, Wyoming, that verified Dana’s sex as ‘intersex.’” Dana also personally presented their case at the Colorado Passport Agency, explaining why they did not want their passport to indicate M or F.

 

But the Department persisted, explaining that it could not issue a passport unless the gender box was checked off as M or F. Why?  Because.  The form requires it.  Dana requested reconsideration, which was turned down in April 2015.

 

This led to the lawsuit, originally against Obama Administration Secretary of State John Kerry (in his official capacity), now against Michael Pompeo, as well as Director Sherman Portell of the Colorado Passport Agency. The lawsuit made multiple claims for relief, foremost arguing that the Department’s conduct was “arbitrary and capricious” in violation of the Administrative Procedure Act, which requires that agency action be undertaken for a reason.  The lawsuit also argued that by imposing this gender choice requirement the Department exceeded the authority delegated to it by Congress in the statutes governing issuance of passports, and that it violated 5th Amendment Due Process and Equal Protection rights. As relief, Zzyym ask the court to issue a “writ of mandamus” to compel the Department to issue a passport “accurately reflecting the plaintiff as intersex.”

 

On November 16, 2016, Judge Jackson ruled that “the agency’s decision-making process was not rational based upon the evidence in the record,” but rather than issue the requested writ of mandamus, he decided to send the case back to the Department for “reevaluation of its gender policy.” Too late, unfortunately, as this ruling was issued the week after Donald Trump’s election as president.  So it eventually fell into the lap of the new Trump-appointed leadership of the State Department, and one can only speculate about the puzzlement and consternation it may have caused in the new fact-free world of the Trump Administration.

 

“In March 2017, while the Department was reevaluating the policy, Dana requested that the Department issue a full-validity or temporary passport bearing an ‘X’ or other third-gender marking in the sex field in order for Dana to attend an international conference,” wrote Judge Jackson. But the Department refused. Why?  Need you ask?  No reason, just no.  The refusal letter did state, however, that the Department “would soon complete its review of the policy,” but you know where this leading.  On May 1, the Department again denied Dana’s application, issuing a memorandum purporting to “explain” its decision, but the explanation really just boiled down to a version of “that’s the way it is.”

 

Dana moved to reopen the case and their counsel filed a supplemental complaint to reflect the Department’s May action, seeking “injunctive relief and a judicial declaration that the State Department has exceeded its authority under the Administrative Procedure Act and has violated the Fifth Amendment to the U.S. Constitution.” In his ruling of September 19, Judge Jackson explains that there is no need to address the constitutional claim because the matter can be resolved in ZZyym’s favor under the APA.

 

Judge Jackson noted that U.S. passports did not record gender prior to 1976, when the Department “changed course and added a male and female checkbox. The applicant is required to choose one or the other.  In my order dated November 22, 2016, I found that the administrative record did not show that the Department’s decision-making process that resulted in the gender policy was rational.  The reasons provided by the Department for the policy failed to show a reasoned decision-making process and instead seemed to be ad hoc rationalizations for the binary nature of the gender field.”

 

The new memorandum issued by the Department fared no better. In the memo, the Department showed awareness that some other countries have accommodated non-binary individuals by using an “X” on travel documents, and they can be scanned by the standard passport reading equipment in use at border crossings and airports.  Now the Department advances five “reasons” for its “gender policy.”

 

First, the Department argued that requiring a gender selection of M or F helps to ensure the accuracy and verifiability of a passport holder’s identity, for which the Department relies on state-issued documents, such as birth certificates and driver’s licenses. Secondly, the sex of a passport applicant is a “vital data point in determining whether someone is entitled to a passport” since “the Department must data-match with other law enforcement systems” all of which “recognize only two sexes.”  Thus, State argues, “continued use of a binary option for the sex data point is the most reliable means to determine eligibility.”  The Department also argued that “consistency of sex data point ensures easy verification of passport holder’s identity in domestic contexts.”  In essence, they argue that introducing a third sex marker on passports could “introduce verification difficulties in name checks and complicate automated data sharing among these other agencies,” which would “cause operational complications.”  The Department also contended that “there is no generally accepted medical consensus on how to define a third sex.”  While acknowledging that people such as Dana exist, “the Department lacks a sound basis in which to make a reliable determination that such an individual has changed their sex to match that gender identity.”  This explanation suggests they don’t understand the difference between transgender and intersex.  Finally, they argued, they had to stick with the current policy because “changing it would be inconvenient.”  In other words, a totally bureaucratic response focused on technical convenience and unresponsive to the need to deal with individuals as they are.

 

“Looking at the proffered reasons and cited evidence provided by the Department,” wrote the judge, “I find that the Department’s decision is arbitrary and capricious,” and he went through the reasons step by step, explaining why they failed to show “rational decision making,” which is the minimal requirement under the APA to sustain an administrative decision. He showed how the earlier responses to Dana’s application undermined the explanations provided in the memorandum.  Even though M and F do not accurately identify Dana, the Department insists on using them, thus contradicting its explanation that it clings to the binary system for purposes of “accurate” identification of people.  And the judge found that the administrative record included data at every turn that contradicted the Department’s conclusions.

 

Most tellingly, there was never any real explanation as to why somebody’s sex needs to be indicated on their passport that would justify refusing to accommodate intersex people. “Apparently,” wrote Jackson, “the data field of ‘SEX (M-F)’ was recommended because experts thought ‘that with the rise in the early 1970s of unisex attire and hairstyles, photographs had become a less reliable means for ascertaining a traveler’s sex.”  Additionally, as naming conventions changed, relying on first names to identify sex became problematic.  An ICAO report from 1974 recommended adding the sex markers as an aid to identification, and at that time the recommendation was to add M-F as the indicators.  But since then the ICAO has modified its standards to use “X” for “unspecified,” so relying on the ICAO recommendation of 1974 no longer justifies refusing to use the “X”.

 

The court found that the Department contradicts itself by relying on the same sort of authorities to deal with transgender people’s passport applications as would be relied upon in transgender cases. Jackson pointed out that “the information relied upon in the administrative record also reflects a lack of consensus as to how individuals born intersex could be classified as either ‘male’ or ‘female,’” but “this has not prevented the Department from requiring intersex people to elect, perhaps at random, as it doesn’t seem to matter to the Department which one of those two categories Dana chooses.” The lack of a medical consensus is thus irrelevant to the Department’s current practices.

 

Finally, turning to the inconvenience and expense argument, Jackson notes that it is merely asserted without any data to back it up. “True,” he wrote, “common sense would tell anyone that altering a system will necessarily involve some effort and money.  However, the Department’s rationale here is the product of guesswork rather than actual analysis, and it does not rise to the level of reliable evidence that is needed to show that the Department’s policymaking was rational.”

 

Actually, Jackson concluded, the new memorandum “added very little” to what was presented to the court in 2016. Jackson also ruled against the Department on Zzyym’s argument that denying them a passport exceeded the Department’s delegated powers.  Congress has delegated to the Department the decision to deny passports for a variety of reasons, but, wrote Jackson, “The authority to issue passports and prescribe rules for the issuance of passports under 22 U.S.C. section 211a does not include the authority to deny an applicant on grounds pertinent to basic identity, unrelated to any good cause. . .”

 

“Because neither the Passport Act nor any other law authorizes the denial of a passport application without good reason,” concluded Jackson, “and adherence to a series of internal policies that do not contemplate the existence of intersex people is not good reason, the Department has acted in excess of its statutory authority.”

 

The court determined to grant Zzyym the injunctive relief they sought. “Dana has been pursuing a passport for close to four years now,” he wrote.  “I grant Dana’s request for injunctive relief and enjoin the Department from relying upon its binary-only gender marker policy to withhold the requested passport from Dana.”  The judge concluded that a writ of mandamus was not necessary, as injunctive relief would suffice.  Will the Trump Administration comply or pursue a pointless appeal?

 

Advocacy for Dana drew in several pro bono cooperating attorneys, local counsel from Denver, and Lambda Legal attorneys Camilla Bronwen Taylor, M. Dru Levasseur, and Paul David Castillo.

New Supreme Court Term Potentially Momentous for LGBT Rights

Posted on: September 24th, 2018 by Art Leonard No Comments

The Supreme Court begins its October 2018 Term, which runs through June 2019, on October 1. During the week of September 24, the Court holds its “long conference,” during which the Justices consider the long list of petitions for review filed with the Court since last spring, and assembles its docket of cases for argument after those granted late last term are heard.  While there are several petitions involving LGBT-related issues pending before the Court, it is unlikely that there will be any announcement about these cases until late October or November at the earliest.

Three of the pending petitions raise one of the most hotly contested LGBT issues being litigated in the lower federal courts: Whether Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination because of an individual’s sex, can be interpreted to extend to claims of discrimination because of sexual orientation or gender identity. One of the three cases also raises the question whether an employer with religious objections gender transition has a defense under the Religious Freedom Restoration Act.  Another petition presents the question whether a judge who has religious objections to conducting same-sex marriages has a 1st Amendment right to refuse to do so.

Although many state civil rights laws ban such discrimination, a majority of states do not, so the question whether the federal law applies is particularly significant in the Southeast and Midwest, where state courts are generally unavailable to redress such discrimination.

With President Donald J. Trump’s nomination of Brett Kavanaugh to fill the seat vacated by Justice Anthony M. Kennedy, Jr.’s, retirement, which was effective on July 31, petitions pending at the Supreme Court took on heightened significance while the Senate confirmation process was taking place. The Senate Republican leadership had hoped to speed the process so that Trump’s appointee would be seated on the Court by the time the term began on October 1, but accusations of long-ago sexual misconduct by Kavanaugh have caused the Judiciary Committee’s vote to be delayed.  Meanwhile, the eight-member Court had to confront the question during their long conference of whether to grant review on cases as to which the justices were likely to be evenly divided, when they were unsure when the ninth seat would be filled and who would fill it.  As of the end of September, they had already scheduled oral arguments on cases granted last spring running through the first week of November.

In Bostock v. Clayton County Board of Commissioners, a three-judge panel of the Atlanta-based 11th Circuit Court of Appeals affirmed a decision by the U.S. District Court for the Northern District of Georgia to dismiss Gerald Lynn Bostock’s Title VII claim alleging employment discrimination because of his sexual orientation. The panel held that it was bound by prior circuit precedent, a 1979 ruling by the old 5th Circuit in Blum v. Gulf Oil Corporation, which was recently reaffirmed by a panel of the 11th Circuit in Evans v. Georgia Regional Hospital, which was denied by review by the Supreme Court last December.

Three-judge panels are required to follow circuit precedents, which can be overruled only by an en banc court (the full circuit bench) or the Supreme Court. The 11th Circuit Bostock panel also noted that Mr. Bostock had “abandoned any challenge” to the district court’s dismissal of his alternative claim of gender stereotyping sex discrimination, which is significant because an 11th Circuit panel had ruled in 2011 in Glenn v. Brumby that a transgender plaintiff could bring a sex discrimination claim under a gender stereotyping theory.  The panel relied on a Supreme Court ruling from 1989, Price Waterhouse v Hopkins, which held that requiring employees to conform to the employer’s stereotyped view of how men and women should act was evidence of discrimination because of sex.  The court noted that in Evans, a majority of the 11th Circuit panel had rejected extending the same theory to uphold a sexual orientation claim, and this, of course, is also now binding 11th Circuit precedent.

Mr. Bostock sought en banc reconsideration of the panel decision by the full 11-member bench of the 11th Circuit, but he also filed a petition with the Supreme Court on May 25.  On July 18, the 11th Circuit denied the petition for rehearing en banc, voting 9-2.  Circuit Judge Robin Rosenbaum, who was the dissenting member of the three-judge Evans panel, released a dissenting opinion, joined by Circuit Judge Jill Pryor.

Although the Evans and Bostock panel decisions may have been foreordained by circuit precedent, recent developments persuaded the dissenters that the issue raised in this case “is indisputably en-banc-worthy. Indeed,” continued Rosenbaum, “within the last fifteen months, two of our sister Circuits have found the issue of such extraordinary importance that they have each addressed it en banc.  See Zarda v. Altitude Express, Inc.; Hively v. Ivy Tech Community College of Indiana.  No wonder.  In 2011, about 8 million Americans identified as lesbian, gay or bisexual,” citing a demographic study published by the Williams Institute at UCLA Law School.  “Of those who so identify, roughly 25% report experiencing workplace discrimination because their sexual preferences do not match their employers’ expectations.  That’s a whole lot of people potentially affected by this issue.”

Judge Rosenbaum strongly argued that the 11th Circuit’s implicit decision to “cling” to a “39-year-old precedent” that predates Price Waterhouse by a decade is ignoring “the Supreme Court precedent that governs the issue and requires us to reach the opposite conclusion,” as she had argued in her Evans dissent. “Worse still,” she wrote, “Blum’s ‘analysis’ of the issue is as conclusory as it gets, consisting of a single sentence that, as relevant to Title VII, states in its entirety, ‘Discharge for homosexuality is not prohibited by Title VII.’  And if that’s not bad enough, to support this proposition, Blum relies solely on Smith v. Liberty Mutual Insurance Co. (5th Cir. 1978) – a case that itself has been necessarily abrogated not only by Price Waterhouse but also by our own precedent in the form of Glenn v. Brumby. I cannot explain why a majority of our Court is content to rely on the precedential equivalent of an Edsel with a missing engine,” Rosenbaum continued, “when it comes to an issue that affects so many people.”

Rosenbaum argued that regardless of what a majority of the court’s views might turn out to be on the substantive issue, it had an obligation to, “as a Court, at least subject the issue to the crucial crucible of adversarial testing, and after that trial yields insights or reveals pitfalls we cannot muster guided only by our own lights, to give a reasonable and principled explanation for our position on this issue – something we have never done.” But, shamefully, the 11th Circuit has absented itself from the current interpretive battle.

Bostock is represented by Thomas J. Mew IV, Timothy Brian Green, and Brian J. Sutherland of Buckley Beal LLP, Atlanta, who filed the petition for certiorari on May 25, with Sutherland listed as counsel of record. Clayton County filed a “Waiver” of its right to respond to the petition on June 27, and the petition was circulated to the justices’ chambers on July 3, anticipating the “long conference.” But evidently some of the justices were not satisfied to consider taking this case without hearing from the “other side,” so on July 13 it sent a request for a response, to be due August 13.  Clayton County retained counsel, Jack R. Hancock and William H. Buechner, Jr., of Freeman Mathis & Gary LLP, Forest Park, GA, who filed the County’s response to the petition on August 10, opposing the petition.  They argued that the appeal was an attempt to get the Court to do Congress’s work, which should be rejected.  On August 29, the Supreme Court clerk again circulated all of these papers to the Justices’ Chambers and the petition was scheduled for consideration at the “long conference.”

The other case pending before the Supreme Court presenting the same question, but this time appealing from the employer’s side, is Altitude Express v. Zarda, from the New York-based 2nd Circuit. A three-judge panel had affirmed the district court’s decision to dismiss a Title VII sex discrimination claim by Donald Zarda, a gay sky-diving instructor, who based his claim on alternative assertions of gender stereotyping or sexual orientation discrimination, on April 18, 2017.  Zarda died in a sky-diving accident while the case was pending, but his estate stepped in to continue the lawsuit.  The 2nd Circuit’s Chief Judge, Robert Katzmann, attached a concurring opinion to the panel ruling, calling for the 2nd Circuit to reconsider this issue en banc in an appropriate case, noting the then-recent ruling by the 7th Circuit in Hively and other developments.

Thus encouraged, Zarda’s Estate sought and obtained en banc review, resulting in the 2nd Circuit’s decisive repudiation of its past precedent on February 26, 2018.  Judge Katzmann’s opinion for the en banc court held that discrimination because of sexual orientation is, at least in part, discrimination because of sex, and thus actionable under Title VII.  The Estate of Zarda is represented by Gregory Antollino, New York, NY, with Stephen Bergstein, Bergstein & Ullrich, LLP, Chester, NY, on the brief.

Saul D. Zabell and Ryan T. Biesenbach, Zabell & Associates, P.C., of Bohemia, N.Y., counsel for Altitude Express, filed a Supreme Court petition on May 29. Responsive papers were filed over the summer, and all the papers were distributed on September 5 to the Justices’ Chambers anticipating the “long conference.”  The federal government, consistent with positions announced in various contexts by Attorney General Jeff Sessions, rejects the 2nd Circuit’s en banc ruling and, if certiorari were granted in Bostock or in Altitude Express v. Zarda, would presumably seek to participate in oral argument.

The third pending Title VII petition, in Equal Employment Opportunity Commission v. R.G. & G.R. Harris Funeral Homes, Inc., comes from the Cincinnati-based 6th Circuit, where a three-judge panel ruled on March 7 that the Funeral Home’s discharge of transgender funeral director Aimee Stephens violated Title VII.  The American Civil Liberties Union represents Stephens.  The EEOC, which had ruled years earlier that it considered discrimination because of gender identity or gender transitioning to be discrimination because of sex, initiated the lawsuit in the U.S. District Court in the Eastern District of Michigan.  Stephens intervened as co-plaintiff.

Although the district judge accepted the EEOC’s argument that this could be a valid sex discrimination case using the gender stereotype theory, he concluded that the funeral home had a right under the Religious Freedom Restoration Act (RFRA) to be free of government prosecution, because of the burden it placed on the funeral home owner’s religious beliefs.

The 6th Circuit affirmed in part and reversed in part. In an opinion by Circuit Judge Karen Nelson Moore, the court agreed with the district judge that gender identity discrimination can be the basis of a Title VII claim, but the court went a step further than prior panel opinions by deciding, as the EEOC had argued, that discrimination “because of sex” inherently includes discrimination against employees who are transgender, without any need to analyze the question of gender stereotypes. The court of appeals reversed the district court’s ruling on the RFRA defense, finding that requiring the employer to continue to employ a transgender funeral director would not substantially burden his right to free exercise of religion.  The court specifically rejected the employer’s reliance on presumed customer non-acceptance of a transgender funeral director as a legitimate justification for the discharge.  The court also rejected the employer’s argument that because of the religiosity of the owner and the way he conducted his business, his funeral directors should be treated as “ministers” as to whom the owner would enjoy a 1st Amendment-based “ministerial exception” from complying with Title VII.

One might anticipate that a petition to review a Court of Appeals decision that was issued on March 7 would generate the necessary paperwork in time to be considered during the “long conference,” but in this case Alliance Defending Freedom (ADF), the anti-gay religious litigation group that is representing the funeral home, obtained an extension of time to file their petition, which was not docketed until July 20. Responses were due August 23. Then the Court granted a request from the Solicitor General’s Office, representing the government, for an extension of time to file a response, which was granted to September 24, 2018, the date on which the “long conference” would begin.  But the Solicitor General wrote to the Court again as this deadline approached requesting a further extension to October 24, which was granted.

At the end of September the government’s official response to this petition had not been filed. With the change of administration since the EEOC started this case, and the position on these issues announced by the Justice Department last year, the Solicitor General would probably urge the Court to take the case and reverse the 6th Circuit on both the Title VII and RFRA rulings.    As to the former, last year Attorney General Jeff Sessions issued written guidance that gender identity discrimination does not violate Title VII, and, as to the latter, President Trump issued an executive order, recently amplified by Attorney General Sessions, directing the Executive Branch to give maximum play to free exercise of religion claims.

But there is a further twist to the government’s response. Although the Solicitor General represents the government in the Supreme Court, an administrative agency such as the EEOC could represent itself, if it gets permission from the Solicitor General.  The EEOC is the plaintiff in this case, and the winning party in the 6th Circuit.  Trump’s appointments of new EEOC commissioners may change the agency’s view of these issues, but as of now the agency’s position is that gender identity discrimination violates Title VII.   One of the Supreme Court’s most important functions is to deal with interpretations of federal statutes as to which the lower courts are divided, and there are precedents in several of the circuit courts that differ from the 6th Circuit’s view in this case, but the trend of lower court decisions around the country is to recognize gender identity discrimination claims under Title VII using the gender stereotype theory.  Neither the Solicitor General nor the EEOC has announced who will be filing a response on behalf of the government, and what position the government may take in the case.

Counsel for the Funeral Home filed a blanket consent with the court to allow amicus briefs in this case. On the original response date of August 23, the Clerk recorded filing of amicus briefs from the Jewish Coalition for Religious Liberty, the Foundation for Moral Law, the State of Nebraska on behalf of itself and fifteen other states, and Public Advocate of the United States (despite its name, a private organization), all urging the Court to take the case and reverse the 6th Circuit for a variety of reasons, taking issue with the 6th Circuit’s decision on every conceivable point.

ADF, counsel for the funeral home, sent a letter to the Court on September 13, suggesting that because the three Title VII petitions present common questions of statutory interpretation, they should be considered together. After receiving the letter, the Court removed the two sexual orientation cases from the agenda for the long conference, which means that the extension of time granted to all the respondents in the Funeral Home case may delay the Court’s consideration of the other two Title VII petitions for several months.

It would be very surprising if the Court did not grant the petitions in Altitude Express and Harris Funeral Homes, as both court of appeals rulings extend existing splits in circuit court interpretations of Title VII, the nation’s basic employment discrimination statute, and employ reasoning that potentially affects the interpretation of many other federal sex discrimination statutes, such as the Fair Housing Act, the Equal Credit Opportunity Act, Title IX of the Education Amendments Act, and the Affordable Care Act. But it takes four votes to grant a petition for review in the Supreme Court, and as long as the Court remains evenly divided between Democratic and Republican appointees, it is possible that both “camps” will shy away from taking on cases where a tie vote on the merits would affirm the lower court ruling without an opinion or a nationally-binding precedent.

Also pending before the Court is a petition filed on behalf of Oregon Judge Vance D. Day, who was disciplined by the Oregon Commission on Judicial Fitness and Disability in a report that was approved by the Oregon Supreme Court for, among other things, refusing to perform same-sex marriages, claiming a 1st Amendment privilege.  The petition, filed on July 23, asks the Court to decide whether Judge Day’s constitutional rights were violated both procedurally and substantively, and raises the contention that judges have a constitutional right to refuse to perform same-sex marriages, despite the Supreme Court’s ruling that same-sex couples have a fundamental right to marry as well as to equal protection of the law.  Judge Day is represented by James Bopp, Jr., and other members of his Terre Haute, Indiana law firm.  Mr. Bopp is a frequent advocate in opposition to LGBT and reproductive rights.  The petition is on the agenda for the Court’s October 11 conference.

There are several other controversies brewing in the lower courts that could rise to the level of Supreme Court petitions during the October 2018 Term.

Following its Masterpiece Cakeshop decision on June 4, the Court vacated a decision by the Washington State Supreme Court against a florist who had refused to provide floral decorations for a same-sex wedding and sent the case back to the Washington court for reconsideration in light of the Masterpiece ruling. This is one of several cases pending in the lower courts, some rising to the federal court of appeals or state supreme courts level, raising the question of religious freedom exemptions from compliance with anti-discrimination laws.  The Supreme Court’s evasion of the underlying issue in Masterpiece means that the issue will come back to the Supreme Court, possibly this term, especially as some lower courts have already seized upon language in Justice Kennedy’s opinion observing that the Court has never recognized a broad religious exercise exemption from complying with anti-discrimination laws.  Cases are pending concerning wedding cakes, wedding invitations, and wedding videos. And, in a different arena, the Court recently denied a request by Catholic authorities in Philadelphia to temporarily block the City from suspending referrals of children to a Catholic adoption agency that refuses to deal with same-sex couples.  The District Court upheld the City’s position, as Gay City News previously report, finding a likely violation of Philadelphia’s public accommodations ordinance that covers sexual orientation and rejecting an exemption for the Catholic adoption agency. This kind of issue could also rise to the Supreme Court, depending how lower court litigation works out.

Litigation continues over a claim by some Houston Republicans that the City is not obligated to provide equal benefits to the same-sex spouses of Houston employees. The case is pending before a state trial judge after the Texas Supreme Court, in a blatant misinterpretation of the Obergefell decision, held that the U.S. Supreme Court had not necessarily decided the issue. This was “blatant” because the Obergefell opinion specifically mentioned insurance as one of the important reasons why same-sex couples had a strong interest in being able to marry, making marriage a fundamental right.  Insurance was mentioned as part of a list of reasons, another listed being “birth certificates,” and the Supreme Court specifically quoted from that list in Pavan v. Smith, the 2017 case in which it reversed the Arkansas Supreme Court, rejecting that court’s opinion that Obergefell did not decide the question whether same-sex parents had a right to be listed on birth certificates.  Pavan was decided just days before the Texas Supreme Court issued its obtuse and clearly politically-motivated decision in Pidgeon v. Turner!  One need not guess too hard at the political motivation.  Texas Supreme Court justices are elected, and that court was deluged with communications of protest and pressure from the state’s top elected Republican officials after an earlier announcement that the court was declining to review the Texas Court of Appeals’ decision in this case, which had found Obergefell and the 5th Circuit Court of Appeals’ subsequent marriage equality ruling, DeLeon, to be controlling on the issue.

Before long the Court will probably take up the question whether transgender public school students have a right under Title IX of the Education Amendments of 1972 and the Equal Protection Clause to use restroom and locker room facilities consistent with their gender identity. The Court granted a petition in Gavin Grimm’s case from Virginia and scheduled argument to take place during the October 2016 Term, but the Trump Administration’s withdrawal of the Obama Administration’s interpretation of Title IX persuaded the Court to cancel the argument and send the case back to the 4th Circuit for reconsideration. The 4th Circuit sent the case back to the district court, where the school district argued that it was moot because Grimm had graduated.  But Grimm continues to battle the district’s policy as an alumnus.  The district court has refused to dismiss a revised version of Grimm’s lawsuit.   This is one issue as to which there is not a significant split of lower court authority, but the issue continues to rage, school districts continue to discriminate against transgender students, the U.S. Departments of Education and Justice in the Trump Administration have reversed the Obama Administration’s position that sex discrimination laws protect transgender people, and religious litigation groups such as ADF continue to generate lawsuits, representing parents and students who oppose school district policies that allow transgender students to use the desired facilities.  The issue is far from settled, and it may work its way to the Court again soon.

Another candidate for Supreme Court review is Trump’s transgender military service ban, first tweeted in July 2017. The issue that may bring it up to the Court quickly is the government’s refusal to comply with pre-trial discovery orders, in which plaintiffs in the four pending challenges are seeking information about the alleged basis for the ban, noting Trump’s vague reference to having consulted “my generals and military experts” before his tweet, and the undisclosed identity of the members of Defense Secretary Mattis’s “Task Force” that produced the memorandum he submitted in support of his version of the ban that Trump authorized him to adopt in March 2018.  As of now, preliminary injunctions from the four district judges have kept the ban from going into effect and required the Defense Department to accept applications from transgender people, beginning January 1, 2018.  On September 18, District Judge Jesus Bernal in Riverside, California, became the fourth district judge to reject the government’s motion for summary judgment, and to refuse to dissolve the preliminary injunction he had previously issued.   Seattle District Judge Marsha Pechman’s discovery order is being appealed to the 9th Circuit Court of Appeals.  The Solicitor General recently filed a petition with the Supreme Court to stay Judge Pechman’s order, since her deadline for compliance was looming and the 9th Circuit had not acted on the government’s motion to stay, but the 9th Circuit then granted the motion and the petition was withdrawn.  If any one of the four district courts grants the plaintiffs’ motion for summary judgment, of course, the government will appeal on the merits and the case may end up in the Supreme Court.  This litigation may provide the vehicle for the Court to determine the extent to which government discrimination against transgender people violates the Equal Protection requirement of the 5th Amendment.

Watch this space for further developments!

Supreme Court of India Eloquently Rules for Gay Rights, Striking Criminal Penalties for Gay Sex

Posted on: September 6th, 2018 by Art Leonard No Comments

The Supreme Court of India ruled on September 6 that the Victorian-era Section 377 of the Indian Penal Code, the ban on “unnatural sex” that has been used to penalize same-sex activity, violates the fundamental rights of LGBT people. Building on a pioneering ruling by the Delhi High Court, and repudiating a decision by a two-judge panel of the Supreme Court that had reversed the High Court ruling, a five-judge panel of the 31-member Supreme Court, led by Chief Justice Dipak Misra, called upon the jurisprudence of numerous other countries to interpret the Constitution of India as a bastion for human rights, locating personal sexual freedom for LGBT people as a fundamental part of such rights.

As is customary in the high courts of British Commonwealth countries, the Supreme Court’s ruling is not embodied by any single opinion. In this case, the five-judge panel produced four substantial written opinions.  Chief Justice Misra’s 166-page opinion was joined in full by Justice A. M.  Khanwilkar.  Each of the other justices on the panel produced their own opinions, amounting in total to an extraordinary outpouring of human rights rhetoric, totaling 495 pages in the pdf file released by the Court.

India did not have any sex crimes statutes before the British colonization of the country beginning early in the19th century, imposing imperial rule atop the existing structure of local governments and eventually insisting that the India enact a Penal Code drafted by British lawyers, modeled on English penal law, itself derived from the sexual prohibitions imposed by the Catholic Church when it was the established English Church prior to the English Reformation during the reign of Henry VIII.

Section 377 of that colonial Code, enacted in 1860, was actually engrafting a foreign legal concept onto Indian society, making it ironic that the present-day defenders of Section 377, pointing to the decriminalization of gay sex in the great western democracies, now protest that the plaintiffs were attempting to impose foreign western concepts of individual sexual freedom on Indian society!

The road to the September 6 ruling was a long one. More than a decade ago, an non-profit AIDS services and advocacy organization, NAZ Foundation, filed a lawsuit in the Delhi High Court, making a powerful argument that the existing sodomy law was an impediment to confronting the AIDS crisis in India.  After lengthy proceedings and much deliberation, the High Court issued its ruling in 2009, finding that Section 377 was inconsistent with guarantees of liberty and privacy in the Indian Constitution.

Unlike the United States, where the right to appeal a trial court ruling is limited to the litigating parties, in India anybody affronted by a court decision can petition to appeal it. The Naz Foundation ruling, greeted by jubilant street demonstrations and waves of LGBT people “coming out” for the first time, provoked the forces of religious orthodoxy in India to file a petition with the Supreme Court.  Interestingly, the government, which had declined all efforts to repeal or modernize Section 377, did not seek the appeal, and was reluctantly dragged into the case.  The Supreme Court normally hears appeals in panels of just two judges.  The appeal seemed to take forever, but it resulted in a ruling in 2014, under the title Koushal v. NAZ Foundation, which reversed the lower court, refusing to invalidate what had become a venerable statute that the new state of India after World War II had deliberately decided to keep, while amending or repeal various other provisions of the colonial penal laws.  The court minimized the significance of what it was doing, by claiming that only a tiny portion of the population identified as gay, so the constitutional claim was trivial, almost beneath the attention of the court.

The ruling threw fear into the LGBT community, as many had come out in reaction to the trial decision, and were worried that they were now open to police harassment, employment and housing discrimination, shunning by their families, and violence on the streets. All of these fears were realized to some extent, but the massive celebrations and new openness of the LGBT community in the wake of the High Court opinion, which was generally well-received in the press, had begun to move public opinion toward more acceptance of LGBT rights.  In fact, the current government, much more conservative than its predecessors on many issues, has not made defending Section 377 a priority.  As attempts were made to get first the two-judge panel and then the larger court to reconsider the Koushal ruling, the government did not spring to defend.  There are various procedural devices in Indian law for seeking review of a Supreme Court ruling, and ultimately what succeeded was a deluge of petitions to the Court from various prestigious groups and famous individuals, putting their reputations on the line.

A panel of the Supreme Court headed by Chief Justice Misra heard arguments in January 2018 about whether to convene an enlarged panel of judges to reconsider the Koushal decision. They were spurred on by other recent developments, including important Supreme Court decisions recognizing the equality rights of transgender people and the privacy rights of all Indians that were put in danger by the government’s adoption of new technology to track the identity of India’s 1.3 billion people.  The privacy decision, by a super-large nine-judge panel of the court, had included biting comments by several of the judges who criticized the Koushal decision as inconsistent with basic precepts of the Indian Constitution.

It was not surprising, when Chief Justice Misra appointed himself to head a new five-judge panel to hear this case, now titled Navtej Singh Johar & Others v. Union of India, that commentators all agreed that the court would definitely overrule Koushal and strike down the application of Section 377 to private, consensual adult sex, and such was the case. The only suspense, after gleeful press reports of the oral arguments held in July, was how wide-ranging the opinion would be.  Indeed, the government pleaded with the court to limit its ruling narrowly to the application of Section 377 to sexual acts, and to refrain from making any rulings about other kinds of anti-LGBT discrimination or same-sex marriage.

It is impossible in the scope of this article to provide extensive discussion of the four opinions. Chief Justice Misra’s opinion is like to be the most quoted and influential, for obvious reasons. Much of it is taken up with a philosophical treatment of the nature of the Constitution of India and theories of constitutional interpretation.  Misra fervently rejects any contention that a Constitution is a static document with a meaning and reach fixed at the time of its adoption.  In sometimes flowery language, he asserts a dynamic approach to constitutional interpretation that requires the courts to take account of changing knowledge and social attitudes, extending the broadly phrased principles of freedom, liberty and equality to ensure maximum protection for individual rights.

He sounds at times like recently-retired U.S. Supreme Court Justice Anthony Kennedy, quoting extensively from the Obergefell (marriage equality) and Lawrence (gay sex) decisions of the Supreme Court, and embracing Justice Kennedy’s favorite term for interpreting the liberty guaranteed by the U.S. Constitution: human dignity. Just as the word “dignity” recurs frequently in Kennedy’s gay rights opinions, Misra uses the term frequently.  For example, he wrote, “we have no hesitation to say that Section 377 IPC, in its present form, abridges both human dignity as well as the fundamental right to privacy and choice of the citizenry, howsoever small.  As sexual orientation is an essential and innate facet of privacy, the right to privacy takes within its sweep the right of every individual, including that of the LGBT, to express their choices in terms of sexual inclination without the fear of persecution or criminal prosecution.”

Misra emphasizes the theme of individual autonomy, just as Justice Kennedy did in striking down the Texas sodomy law in 2003. “The sexual autonomy of an individual to choose his/her sexual partner is an important pillar and an insegregable facet of individual liberty,” he wrote.  “When the liberty of even a single person of the society is smothered under some vague and archival stipulation that it is against the order of nature or under the perception that the majority population is peeved when such an individual exercises his/her liberty despite the fact that the exercise of such liberty is within the confines of his/her private space, then the signature of life melts and the living becomes a bare subsistence and resultantly, the fundamental right of liberty of such an individual is abridged.”

The judge took special note of how Section 377 has been oppressive to the transgender community. “We must realize that different hues and colours together make the painting of humanity beautiful and this beauty is the essence of humanity.  We need to respect the strength of our diversity so as to sustain our unity as a cohesive unit of free citizens by fostering tolerance and respect for each others’ rights, thereby progressing towards harmonious and peaceful co-existence in the supreme bond of humanity.  Attitudes and mentality have to change to accept the distinct identity of individuals and respect them for who they are rather than compelling them to ‘become’ who they are not.  All human beings possess the equal right to be themselves instead of transitioning or conditioning themselves as per the perceived dogmatic notions of a group of people.  To change the societal bias and root out the weed, it is the foremost duty of each one of us to ‘stand up and speak up’ against the slightest form of discrimination against transgenders that we come across. Let us move from darkness to light, from bigotry to tolerance and from the winter of mere survival to the spring of life – as the herald of a New India – to a more inclusive society.”

One could go on at great length, quoting inspiring language by Misra and his colleagues in their three opinions, but the point is made. This five-judge panel unanimously agrees that constitutional concepts of privacy, autonomy, human dignity and equality are inconsistent with Section 377 as it applies to private, adult consensual activity.  Justice Misra explained that other sections of the penal law, include some recently enacted as part of a more general law reform, have combined to ensure that sexual activity falling outside this protected sphere could be still be prosecuted, especially noting provisions protecting minors from sexual exploitation and clarifying the application of the rape law in a wide range of non-consensual cases than had previously been covered.  Although the court refrained, as requested by the government, from ranging beyond the direct question presented to it, there was language in the opinion which might be exploited later to attached anti-LGBT discrimination and bans on same-sex marriage.

This ruling may have profound consequences well beyond India, which is the world’s second largest county by population after China (which repealed its laws against gay sex in 1997) and until September 6, 2018, was the largest democracy to maintain criminal penalties for gay sex. As a result of this ruling, 18% of the world’s LGBT population has in one giant leap been liberated from criminalization of their sexuality.

The persistence of Section 377 or provisions derived from it as part of the penal codes imposed by Britain on its far-flung 19th century colonial empire continue to haunt the lives of LGBT people in many former British colonies.  The Indian Supreme Court’s action, relying on phrases and concepts that are common in the post-colonial constitutions of many of these countries, may prove a powerful example leading to similar rulings elsewhere. In the meantime, of course, new celebrations broke out in India as word of the decision quickly spread.

7th Circuit Ruling Creates Federal Precedent to Protect Older Gays in Residential Facilities

Posted on: August 27th, 2018 by Art Leonard No Comments

A unanimous three-judge panel of the U.S. Court of Appeals for the 7th Circuit ruled on August 27 that a lesbian resident of a rental facility for seniors in Illinois may seek to hold the management of the facility accountable for severe harassment against her by other residents due to her sexual orientation.  The ruling reversed a decision by U.S. District Judge Samuel Der-Yeghiayan, a George W. Bush appointee, to dismiss her case.  The court of appeals decision marks an important appellate precedent for the protection of older LGBT people living in residential facilities.  The case is Wetzel v Glen St. Andrew Living Community, LLC, Case No. 17-1322 (7th Cir., Aug. 27, 2018).

Marsha Wetzel moved into Glen St. Andrew Living Community after her partner of 30 years died. Under the Tenant’s Agreement she signed with the facility, she is entitled to a private apartment, three meals daily served in a central location, access to a community room, and use of laundry facilities.  The agreement requires her (and all other tenants under their agreements) to refrain from “activity that [St. Andrew] determines unreasonably interferes with the peaceful use and enjoyment of the community by other tenants” or that is “a direct threat to the health and safety of other individuals.”  The Agreement also authorizes the facility to bring eviction proceedings against a tenant who violates the Agreement.

Wetzel was not closeted, speaking openly with staff and other residents about her sexual orientation when she moved in. “She was met with intolerance from many of them,” wrote Chief Judge Diane Wood in summarizing the allegations in Wetzel’s Complaint.  For purposes of ruling on the facility’s motion to dismiss her case, the court’s role is to accept Wetzel’s allegations as true and to decide whether those allegations, if proved at trial, would constitute a violation of her rights under the Fair Housing Act, which forbids discrimination because of sex.

Judge Wood’s summary of the Complaint makes horrific reading. “Beginning a few months after Wetzel moved to St. Andrew and continuing at least until she filed this suit (a 15-month period), residents repeatedly berated her for being a ‘fucking dyke,’ ‘fucking faggot,’ and ‘homosexual bitch.’  One resident, Robert Herr, told Wetzel that he reveled in the memory of the Orlando massacre at the Pulse nightclub, derided Wetzel’s son for being a ‘homosexual-raised faggot,’ and threatened to ‘rip [Wetzel’s] tits off.’  Herr was the primary, but not sole, culprit.  Elizabeth Rivera told Wetzel that ‘homosexuals will burn in hell.’”

The Complaint also describes incidents of physical abuse, focused on knocking Wetzel off the motorized scooter she depends upon to get around, spitting at her, and striking her from behind accompanied by anti-gay epithets.

When she complained to the staff, there was a “brief respite,” but soon the misconduct continued. Indeed, Judge Wood wrote, “the management defendants otherwise were apathetic.  They told Wetzel not to worry about the harassment, dismissed the conduct as accidental, denied Wetzel’s accounts, and branded her a liar.”  Furthermore, Wetzel alleges, they retaliated against her by relegating her “to a less desirable dining room location” after she notified them about one incident of physical harassment by another resident, “barred her from the lobby except to get coffee” and “halted her cleaning services, thus depriving her of access to areas specifically protected in the Agreement.”  They also false accused her of smoking in her room and one St. Andrews worker “slapped her across the face” when she denied having violated the no-smoking rule.

In what sounds like a transparent attempt to set her up for an eviction for non-payment, they failed to send her the customary rent-due notice sent to all tenants, but she remembered to pay on time, “but she had to pry a receipt from management.”

As a result of these management responses, Wetzel sharply curtailed her activities outside her room, staying away from common spaces including the dining room, and finally, fed up with this mistreatment, filed this lawsuit, alleging violations of the FHA as well as state laws. (Illinois laws forbid sexual orientation discrimination in housing and public accommodations.)

The facility did not argue in defense that the FHA does not ban sexual orientation discrimination. They could hardly raise such an argument in the 7th Circuit, because that court was the first appellate court to rule that sexual orientation claims are a subset of sex discrimination claims, under the similar anti-discrimination provisions of Title VII of the Civil Rights Act of 1964.

Instead, the defendant argued that the landlord cannot be held liable for discrimination by other tenants under the FHA without a showing of discriminatory animus by the landlord. Furthermore, it argued that FHA deals with refusals to rent, and does not cover “post-acquisition harassment claims.”  In other words, as Judge Wood explained, once an apartment has been rented, the defendant argued that the FHA is no longer relevant to claims brought by “a tenant already occupying her home.”  The defendant countered Wetzel’s retaliation claim by arguing, once again, that it lacked an allegation that defendants were motivated by discriminatory animus.

District Judge Der-Yeghiayan agreed with the defendants’ FHA arguments and dismissed the case. The dismissal of the FHA claim removed the basis for federal jurisdiction, and the judge declined to keep the state claims alive, dismissing them for lack of jurisdiction, although federal courts do have discretion to continue to consider state law claims in such cases.

Writing for the appeals court, Judge Wood relied on cases of workplace harassment decided under Title VII for a standard to apply to a harassment case brought under the FHA, for which there was no precedent in the 7th Circuit.  “The harassment Wetzel describes plausibly can be viewed as both severe and pervasive,” she wrote, referring to the Title VII standard.  “For 15 months, she was bombarded with threats, slurs, derisive comments about her family, taunts about a deadly massacre, physical violence, and spit.  The defendants dismiss this litany of abuse as no more than ordinary ‘squabbles’ and ‘bickering’ between ‘irascible,’ ‘crotchety senior resident[s].’  A jury would be entitled to see the story otherwise.”

The question for the court was whether there was a basis to impute liability to St. Andrew for the hostile housing environment, a question new for the 7th Circuit.  Again, the court borrowed from principles established under another statute, this time focusing more on Title IX of the Education Amendments Act, under which schools have been held liable for harassment of students by other students, when the harassment was brought to the attention of school authorities and they failed to take appropriate steps to assure that the harassed students were not denied equal educational opportunity because of their sex.

The question was whether the facility management had “actual knowledge of the severe harassment Wetzel was enduring and whether they were deliberately indifferent to it. If so,” wrote the judge, “they subjected Wetzel to conduct that the FHA forbids.”  The court rejected St. Andrew’s argument that the landlord-tenant relationship is so different from the school-student relationship as to make such a test inappropriate.  The court, finding that the defendant had inaccurately described the court’s holding, responded: “We have said only that the duty not to discriminate in housing conditions encompasses the duty not to permit known harassment on protected grounds. The landlord does have responsibility over the common areas of the building, which is where the majority of Wetzel’s harassment took place.  And the incidents within her apartment occurred precisely because the landlord was exercising a right to enter.”

The court rejected St. Andrew’s argument that its ruling would unfairly hold St. Andrew liable for actions it was “incapable of addressing,” pointing out that the tenant Agreement signed by all residents imposed obligations on tenants not to engage in conduct that would constitute a “direct threat to the health and safety of other individuals” and to refrain from conduct that would “unreasonably” interfere with “the peaceful use and enjoyment of the community by other tenants.” This is, on its face, directly applicable to the conduct of other residents directed at Wetzel.  And the Agreement gives the facility the right to seek to evict tenants who violate these rules.  Yet, according to Wetzel’s Complaint, the facility took action against her for complaining rather than against her harassers for their misconduct.

The court also noted a rule published by the Department of Housing and Urban Development (HUD) in 2016, providing that a landlord could be held liable under the FHA for failing to “take prompt action to correct and end a discriminatory housing practice by a third party” (such as a fellow resident in a rental building) if the landlord “knew or should have known of the discriminatory conduct and had the power to correct it.” The court said it did not need to rely on this rule, however, stating that “it is enough for present purposes to say that nothing in the HUD rule standings in the way of recognizing Wetzel’s theory” for landlord liability in her case.

The court also discounted St. Andrew’s argument that this case is just about “bad manners” by some residents. “It is important,” wrote Wood, “to recognize that the facts Wetzel has presented (which we must accept at this stage) go far beyond mere rudeness, all the way to direct physical violence.”  She noted that under Title VII courts have routinely had to distinguish between hostile environment harassment and mere incivility.

The court also decisively rejected St. Andrew’s claim that the FHA anti-discrimination provision does not apply once the apartment is leased to the tenant. The statute bans discrimination regarding “services or facilities,” and the court pointed out that “few ‘services or facilities’ are provided prior to the point of sale or rental; far more attach to a resident’s occupancy.”  In this case, Wetzel’s allegations included her virtual exclusion from the enjoyment of the common areas of the building, and denial of certain services to which she was entitled under the tenant Agreement.  “At a minimum, then,” wrote the court, “Wetzel has a cognizable post-acquisition claim because discrimination affected the provision of services and facilities connected to her rental.  Beyond that, the discrimination diminished the privileges of Wetzel’s rental.”

The court also rejected St. Andrew’s argument, which the district court had accepted, that the anti-retaliation provision of the statute required proof of the landlord’s discriminatory intent. “Indeed,” wrote Judge Wood, “if we were to read the FHA’s anti-retaliation provision to require that a plaintiff allege discriminatory animus, it would be an anomaly.  Like all anti-retaliation provisions, it provides protections not because of who people are, but because of what they do.”  The focus, thus, is on whether the landlord takes some adverse action after a tenant complains about violation of her rights under the FHA, not whether the landlord is biased against somebody because she is a lesbian.

In sending the case back to the district court, the Court of Appeals revived Wetzel’s FHA claim and also directed to the court to “reinstate the state-law claims that were dismissed for want of jurisdiction.”

Wetzel is represented by Lambda Legal and cooperating attorneys from Foley & Lardner LLP.

New Jersey Appeals Court Rules Lesbian Co-Parent May Seek “Bystander” Emotional Distress Compensation for Death of Child She was Raising With Her Same-Sex Partner

Posted on: August 21st, 2018 by Art Leonard No Comments

 

The New Jersey Appellate Division, the state’s intermediate appeals court, issued an important decision on August 17 expanding the range of “bystanders” to whom negligent actors may have liability for causing emotional distress to include non-marital same-sex families. A unanimous three-judge panel, taking account of the momentous developments in public attitudes about LGBT families over the past 38 years, ruled in Moreland v. Parks, 2018 WL 3945312, 2018 N.J. Super. LEXIS 120, that the lesbian co-parent of a young child who died as a consequence of a tragic traffic incident should not have been dismissed from the case by a Mercer County trial judge.

It was as recently as 1980 that the New Jersey Supreme Court first recognized, in the case of Portee v. Jaffee, 84 N.J. 88, that a mother who witnessed the agonizing death of her young son, who had become trapped between an elevator’s outer doors and the wall of the elevator shaft, could sue for the emotional distress she suffered due to the negligence of the defendant building owners and the elevator company in causing her son’s death. Through a slow process of doctrinal evolution, the courts have gradually shed their earlier reluctance to award damages for emotional distress to people who had not themselves suffered a direct physical injury, but the courts were cautious about expanding the range of such potential liability.

Portee is New Jersey’s controlling state Supreme Court precedent in “bystander” cases, and the Portee court ruled that bystanders eligible to seek compensation for severe emotional distress in such cases should be limited to “a marital or intimate, familial relationship between the plaintiff and the injured person.” In a further development in New Jersey law, the Supreme Court ruled in Dunphy v. Gregor, 136 N.J. 99 (1994), that the fiancé of a man killed in a traffic incident, who had witnessed the vehicle strike his body and attempted to comfort him while awaiting an ambulance, could sue the driver of the vehicle for negligent infliction of emotional distress, even though couple were not yet legally married.  The court emphasized that they were cohabiting and engaged to be married at the time, and considered this a sufficient “familial relationship.”

In the Moreland case decided on August 17, co-plaintiff Valerie Benning was standing on a street corner with her then-same-sex partner (now spouse), I’Asia Moreland and their children. Benning and Moreland had been living together for seventeen months, and were jointly raising Moreland’s two children (who were born before their relationship began) and Benning’s young godson.  Benning was holding the hand of two-year-old L’Maya as they waited for the traffic signal to change so they could cross the street to attend the “Disney on Ice” show playing at the Sun Bank Arts Center in Trenton.  Suddenly, a fire truck collided in the intersection with a pickup truck, and the pickup truck struck L’Maya, who was “propelled” sixty-five feet south of the intersection, and who later died from her injuries in the hospital.

Benning was also knocked down, and the next thing she remembered was lying on the ground and the confused panic that ensued around her, struggling to her feet and running towards L’Maya and hearing screaming from observers of the scene, then the ambulance trip to the hospital and the hysteria she suffered upon learning L’Maya was dead. The opinion quotes extensively from her deposition describing her experience, and the emotional and psychological trauma she suffered.

Moreland and Benning filed suit against multiple defendants, claiming a variety of damages. The Appellate Division’s ruling was about the trial judge’s decision to grant the defendants’ motion to dismiss Benning’s claim for compensation for the emotional distress she suffered as a “bystander” to the events causing L’Maya’s death.

At the time of this incident in 2009, Moreland and Benning were not legally related to each other, and Benning was not legally related to L’Maya. (Marriage equality did not come to New Jersey until several years later, at which time the women did marry, but as of 2009 they had not registered as N.J. civil union partners.)

The trial judge had to determine whether Benning’s relationship to L’Maya came within the scope of the New Jersey Supreme Court’s ruling in Portee, of an “intimate, familial relationship between plaintiff and the injured person.” The trial judge, who is not named in the court’s opinion, said that an “intimate” relationship would not “suffice” unless it could be considered “familial.”  “There is a requirement that they have to be family,” wrote the judge.  “Portee talks about familial relationship but it didn’t say family-ish or something similar to a family.  It says familial and there are cases that must use the word family.  It has to be family and there’s no question of fact that Ms. Benning was not.  The evidence is that she was a girlfriend and she might have been part of the child’s household, but by any definition that I can find in the law about family, Ms. Benning doesn’t meet it.  The undisputed facts are that she was neither a biological or adoptive parent.”

The judge also noted the lack of any expert psychological testimony. To the trial judge, it wasn’t enough that there was evidence that within weeks of Benning and Moreland living together, L’Maya had begun referring to Benning as “mom.” Said the judge, “just using the word mom all by itself doesn’t count for much, whether there’s a secure relationship, a bonded relationship, a reliant relationship, whether this is someone that the two-year-old would have looked to for a comfort, the facts just aren’t there to be able to know those things.”

The trial judge pointed out that the kind of evidence that would exist if there was a custody or visitation or adoption proceeding, such as a psychologist’s report, was unfortunately missing in this case.

The court also distinguished the Dunphy case, writing, “Ms. Moreland and Ms. Benning weren’t even engaged at the time. I understand the laws regarding same sex relationships had change over time but there was a statute that did allow for that in New Jersey and whether they could have availed themselves of any such laws in other jurisdictions hasn’t been addressed in any of the papers” submitted to the court.  In ruling to dismiss the claim, the trial judge wrote, “Ms. Benning was a part of a very small child’s life for 17 months at most.  There’s no evidence that there was any permanent bond or that the relationship that she shared with the decedent was one that was deep, lasting, and genuinely intimate.”

Benning’s lawyer argued that dismissing this claim was inappropriate, because the question of “familial relationship” required a full hearing of the facts about this relationship, and should not be disposed of as a “matter of law” without an opportunity for such a hearing. They asked the Appellate Division to review this dismissal of the claim, but at first it refused to do so.  Then they appealed to the New Jersey Supreme Court, which directed the Appellate Division to accept the appeal, solely to address the question “whether Benning falls within the class of litigants entitled to bring a civil action against defendants under the tort of negligent infliction of emotional distress.”

Writing for the Appellate Division panel, Judge Jose L. Fuentes traced the development of this legal doctrine in New Jersey through Portee and Dunphy, writing, “Critical to our analysis here is not only the Dunphy Court’s unambiguous rejection of any attempt to restrict the claimants to married persons, but also the articulation of the public policy underpinning the tort itself: ‘The basis for that protection is the existence of an intimate familial relationship with the victim of the negligence. . . When that emotional security is devastated because one witnesses, in close and direct proximity, an accident resulting in the wrongful death or grievous bodily injury of a person with whom one shares an intimate familial relationship, the infliction of that severe emotional injury may be the basis of recovery against the wrongdoer.”

The Appellate Division concluded that Benning had “presented sufficient evidence from which a jury could find that she and two-year-old L’Maya had an intimate familial relationship at the time of the child’s tragic death.” The trial court’s job in ruling on this type of motion was to view the evidence presented up to that point in “the light most favorable to the non-moving party,” and to ask whether a jury could conclude from that evidence that Benning and L’Maya had a familial relationship.  “A rational jury can find that Benning was a de facto mother to this child, and felt her loss as deeply as any parent facing that horrific event,” wrote Judge Fuentes.  “Benning’s deposition testimony supports this finding.”

Fuentes’ opinion noted how social change has expanded the public’s understanding far beyond what it was when Portee was decided in 1980. “Thirty-eight years ago,” he wrote, “gay, lesbian, and transgender people were socially shunned and legally unprotected against invidious discrimination in employment, housing, and places of public accommodation under our State’s Law Against Discrimination.  The notion of same-sex couples and their children constituting a ‘familial relationship’ worthy of legal recognition was considered by a significant number of our fellow citizens as socially and morally repugnant and legally absurd.  The overwhelming majority of our fellow citizens now unequivocally reject this shameful, morally untenable bigotry; our laws, both legislatively and through judicial decisions, now recognize and protect the rights of LGBTQ people to equal dignity and treatment under law.”

The court emphasized that “what constitutes a ‘familial relationship’ is perforce a fact-sensitive analysis, driven by evolving social and moral forces,” so to rely on the understandings prevailing when Portee was decided was inappropriate, and the trial judge should have denied the defendants’ motion and given Benning an opportunity to provide more evidence about the nature of the relationship. The court suggested that Benning would have been “better served” had her counsel introduced evidence in opposition to the defendants’ motion “with certifications from individuals who knew and saw these two women interact with these children on a day-to-day basis,” as this could have “assisted the motion judge in his decision.”

Benning was represented on appeal by Robin Kay Lord, with Clifford D. Bidlingmaier III, of Kardos, Rickles, Hand & Bidlingmaier, assisting on the brief. The case attracted amicus participation in briefing and arguing the appeal from Garden State Equality, New Jersey’s state LGBT rights organization, represented by Jennifer L. Hamilton, and from the New Jersey State Bar Association, whose out gay former president Tom Prol also presented a brief and oral argument.

Trump Administration Suffers More Setbacks in Defending Transgender Military Ban

Posted on: August 14th, 2018 by Art Leonard No Comments

Two federal district judges have issued new rulings in lawsuits challenging the Trump Administration’s ban on military service by transgender individuals, mainly adverse to the government.  [Addendum:  After this was drafted, we received a decision from a federal magistrate judge in Baltimore on discovery issues in one of the other challenged to the transgender ban.  Our summary appears at the end of this posting.]

After the San Francisco-based U.S. Court of Appeals for the 9th Circuit refused to lift Seattle U.S. District Judge Marsha Pechman’s preliminary injunction against the policy on July 18, she issued a new ruling on July 27 granting the plaintiffs’ motion to compel discovery and denying the government’s motion for a protective order that would shield President Trump from having to respond to any discovery requests.  The Justice Department immediately announced that it would appeal this ruling to the 9th Circuit Court of Appeals.  Judge Pechman had previously denied motions for summary judgment in the case, having found that there was a need for discovery before such a ruling could take place.

On August 6, D.C. District Court Judge Colleen Kollar-Kotelly, who had issued the first preliminary injunction against the policy last year, issued two decisions. In one, she rejected the government’s request to vacate her preliminary injunction as moot, finding that the plaintiffs have standing to challenge the “new” policy described by Defense Secretary James Mattis in his February 2018 memo to the President, and agreeing with Judge Pechman that the “new” policy is not essentially different from the “old” one announced by President Trump a year ago. However, Judge Kollar-Kotelly granted a motion by the government to dismiss President Trump as an individual named defendant in the case.

Two other lawsuits challenging the policy are pending in federal district courts in Riverside, California, and Baltimore, Maryland. In both cases, the judges have received motions from the parties that are awaiting decision, similar to those filed with Judges Pechman and Kollar-Kotelly.

To recap for those coming late to this story, Trump tweeted a ban on transgender military service on July 26, 2017, and issued a memorandum a month later describing the policy in slightly more detail, charging Secretary Mattis to propose a plan for implementation by late February, 2018, with the goal of implementing the policy later in March. Trump’s memo specified that Mattis’s previous directive to allow transgender applicants to join the military, which had been announced at the end of June 2017 to go into effect on January 1, 2018, was to be indefinitely delayed, as Trump’s policy would not allow transgender people to enlist.  Mattis announced that no action would be taken against now-serving transgender personnel pending the implementation of the policy in March 2018, but there were reports of transgender personnel suffering cancellations of promotions and desire assignments and of planned medical procedures after the policy was announced.

Mattis’s memo to the president in February proposed some modifications to the policy that had been announced in Trump’s August memorandum. Transgender personnel who were already serving and had transitioned and were “stable” in their preferred gender would be allowed to continue serving, based on a determination that the investment in their training outweighed whatever “risk” they posed to the readiness of the military.  Furthermore, transgender individuals who had not transitioned or been diagnosed with “gender dysphoria” would be allowed to enlist and serve, provided they refrained from transitioning and served in the sex identified at birth.  Otherwise, those diagnosed with “gender dysphoria” would be prohibited from enlisting or serving, and those who could not comply with these requirements would be discharged.  The proposal was based on a “finding” by a rigged special committee apparently dominated by committed opponents of transgendered service that allowing transgender people to serve in the military was harmful to the operational efficiency of the service – a finding based on no factual evidence and oblivious to the fact that transgender people had been serving openly without any problems since the Obama Administration lifted the prior ban at the end of June 2016.

Four lawsuits had been filed in response to the summer 2017 policy announcement, and in a matter of months the four district courts had issued preliminary injunctions, having found it likely that the plaintiffs would prevail on their argument that the policy violates the Equal Protection requirements of the 5th Amendment of the Bill of Rights. As compelled by the preliminary injunctions, the Defense Department allowed transgender people to submit applications to enlist beginning January 1, 2018, after losing a last-ditch court battle to continue the enlistment ban, but there were reports that the applications they received were getting very slow processing, and all indications are that few have been accepted for service.

Trump responded to Mattis’s February 2018 memo by “withdrawing” his prior memo and tweet, and authorizing Mattis to adopt the implementation plan he was recommending by late March. The Justice Department then filed motions in all the lawsuits seeking to lift the preliminary injunctions. Their argument was, in part, that the “new” policy was sufficiently different from the one that had been “withdrawn” as to moot the lawsuits. They further contended that the plaintiffs who were already serving and would be allowed to continue serving under the “new” policy no longer had standing to challenge the policy in court.  The Department also argued that plaintiff’s attempts to conduct discovery in the case should be put on hold until there was a definitive appellate ruling on their motion to lift the preliminary injunctions.

On April 13, Judge Pechman rejected the government’s motion to lift the preliminary injunction, having already ordered that discovery proceed. In his initial tweet, Trump had claimed that he had consulted with generals and other experts before adopting the policy, but the identities of these people were not revealed, and the government has stonewalled against any attempt to discover their identities or any internal executive branch documents that might have been generated on this issue, making generalized claims of executive privilege.  Similarly, the February memorandum released under Mattis’s name did not identify any of the individuals responsible for its composition, and naturally the plaintiffs are also seeking to discover who was involved in putting it together and what information they purported to rely upon.

Judge Pechman’s July 27 order to compel discovery specified the materials sought by the plaintiffs, and pointed out that under federal evidentiary rules, any claim of privilege against disclosure is subject to evaluation by the court. “The deliberative privilege is not absolute,” she wrote.  “Several courts have recognized that the privilege does not apply in cases involving claims of governmental misconduct or where the government’s intent is at issue.”

The question, under 9th Circuit precedents, is “whether plaintiffs’ need for the materials and the need for accurate fact-finding override the government’s interest in non-disclosure.  In making this determination, relevant factors include: (1) the relevance of the evidence; (2) the availability of other evidence; (3) the government’s role in the litigation; and (4) the extent to which disclosure would hinder frank and independent discussion regarding contemplated policies and decisions.”  There is a formal process for invoking privilege, which requires the government to “provide precise and certain reasons for preserving the confidentiality of designated material.”

In this case, Judge Pechman had previously determined that discrimination because of gender identity involves a “suspect classification” for purposes of equal protection requirements, which means the government has the burden of proving that there is a compelling justification for the discrimination. In this case, however, the government has articulated only a generalized judgment that service by transgender individuals is too “risky” based on no facts whatsoever.  Judge Pechman concluded in granting the plaintiffs’ discovery motion that “the deliberative process privilege does not apply in this case.”

The government had moved for a protective order “precluding discovery directed at President Trump.” While conceding that Trump has “not provided substantive responses or produced a privilege log” listing specifically what information has to be protected against disclosure, the government contended that “because the requested discovery raises ‘separation of powers concerns,’ Plaintiffs must exhaust discovery ‘from sources other than the President and his immediate White House advisors and staff’ before he is required to formally invoke the privilege.”

Judge Pechman noted that so far the government has refused to provide any information about how the policy decision was made or developed, and has failed to identify the specific documents and other information for which it claims privilege. In a footnote, she commented, “The Court notes that Defendants have steadfastly refused to identify even one general or military official President Trump consulted before announcing the ban.”  Thus, she found, there was no basis for the court to evaluate “whether the privilege applies and if so, whether Plaintiffs have established a showing of need sufficient to overcome it.”  Indeed, she concluded in a prior decision, as far as the record stands, it looks as if Trump made the whole thing up himself without relying on any military expertise. Thus, she has preliminarily rejected the government’s contention that the policy would enjoy the deference normally extended to military policies adopted based on the specialized training and expertise of the military policy makers.

Judge Kollar-Kotelly’s August 6 ruling focused on an issue that Judge Pechman had previously decided: whether the plaintiffs had standing to continue challenging the policy after Mattis’s memo supplanted the “withdrawn” earlier policy announcements. She had little trouble in determining that all the plaintiffs, even those who are currently-serving transgender personnel who would be allowed to consider serving under the “new” policy, still had standing, which requires a finding that implementing the policy would cause them harm.

“The Court rejects Defendants’ argument that Plaintiffs no longer have standing because they are not harmed by the Mattis Implementation Plan,” she wrote, stating that “the effect of that plan would be that individuals who require or have undergone gender transition would be absolutely disqualified from military service, individuals with a history or diagnosis of gender dysphoria would be largely disqualified from military service, and, to the extent that there are any individuals who identify as ‘transgender’ but do not fall under the first two categories, they would be allowed to serve, but only ‘in their biological sex’ (which means that openly transgender persons would generally not be allowed to serve in conformance with their identity.)” Furthermore, those who have already transitioned and are now serving would be doing so under the stigma of having been labeled as “unfit” for military service and presenting an undue risk to military readiness, and would likely suffer prejudice in terms of their assignments and their treatment by fellow military personnel, as well as emotional harm.

“The Mattis Implementation Plan sends a blatantly stigmatizing message to all members of the military hierarchy that has a unique and damaging effect on a narrow and identifiable set of individuals, of which Plaintiffs are members,” she wrote. They would be serving “pursuant to an exception to a policy that explicitly marks them as unfit for service.  No other service members are so afflicted.  These Plaintiffs are denied equal treatment because they will be the only service members who are allowed to serve only based on a technicality; as an exception to a policy that generally paints them as unfit.”

She concluded that “because their stigmatic injury derives from this unequal treatment, it is sufficient to confer standing.” She pointed out that beyond stigmatization, the Implementation Plan “creates a substantial risk that Plaintiffs will suffer concrete harms to their careers in the near future.  There is a substantial risk that the plan will harm Plaintiffs’ career development in the form of reduced opportunities for assignments, promotion, training, and deployment.  These harms are an additional basis for Plaintiffs’ standing.”  She rejected the government’s contention that these harms were only “speculative.”

Furthermore, she rejected the claim that Trump’s “withdrawal” of his August 2017 memorandum and the substitution of the Mattis Implementation Plan made the existing lawsuits moot, agreeing with Judge Pechman that the “new” plan was merely a method of “implementing” the previously announced policy. She found that the Implementation Plan “prevents service by transgender individuals,” just as Trump had directed in August 2017, and the minor deviations from the complete categorical ban were not significant enough to make it substantially different.

Thus she refused to dissolve the preliminary injunction. She refrained from ruling on motions for summary judgment on the merits of the equal protection claim, because there are sharply contested facts in this case and no discovery has taken place, so it can’t be decided purely as a matter of law. The facts count here in court, even if they don’t seem to count in the White House or the Defense Department.

However, Judge Kollar-Kotelly granted the government’s motion to partially dissolve the injunction as it applies personally to Trump, and granted the motion to “dismiss the President himself as a party to this case. Throughout this lawsuit,” she wrote, “Plaintiffs ask this Court to enjoin a policy that represents an official, non-ministerial act of the President, and declare that policy unlawful.  Sound separation-of-power principles counsel the Court against granting these forms of relief against the President directly.”  Thus, she concluded, there was no reason to retain Trump as a defendant.  If the Plaintiffs prevail on the merits, an injunction aimed at the Defense Department’s leadership preventing the policy from taking effect will provide complete relief.

The Plaintiffs complained that removing Trump from the case as a defendant would undermine their attempt to discover the information necessary to make their case, since individuals who are parties to litigation are particularly susceptible to discovery requests. The judge wrote that “it would not be appropriate to retain the President as a party to this case simply because it will be more complicated to seek discovery from him if he is dismissed.  To the extent that there exists relevant and appropriate discovery related to the President, Plaintiffs will still be able to obtain that discovery despite the President not being a party to the case.”  And, she concluded, “Plaintiffs will be able to enforce their legal rights and obtain all relief sought in this case without the President as a party.”

The judge treated as moot the Defendants’ motion for a protective order shielding Trump from having to respond to discovery requests. “However,” she wrote, “the Court reiterates that dismissing the President as a party to this case does not mean that Plaintiffs are prevented from pursuing discovery related to the President.  The court understands that the parties dispute whether discovery related to the President which has been sought by Plaintiffs is precluded by the deliberative process or presidential communication privileges, and the Court makes no ruling on those disputes at this point. The Court will be issuing further opinions addressing other dispositive motions that have been filed in this case.  After all of those opinions have been issued, if necessary, the Court will give the parties further guidance on the resolution of the discovery requests in this case.”  In a footnote, Judge Kollar-Kotelly noted Judge Pechman’s July 27 discovery order, and that defendants were appealing it to the 9th Circuit.  The judge emphasized that the preliminary injunction remains in effect for all of the remaining defendants in the case, so the policy may not be implemented while the case continues.

The possibility that Trump will be ordered to submit to questioning under oath in at least one of these cases remains a reality, but any attempt by the Plaintiffs to do so would undoubtedly arouse spirited opposition from the Defense Department, officially based on claims of privilege, but realistically due to the likelihood that Trump would perjure himself under such questioning. Recall the historical precedent:  The House of Representatives voted to impeach President Clinton based, in part, on the charge that he committed perjury during questioning before a grand jury by the Special Counsel investigating his affair with Monica Lewinski.  Thus, at least in that case, the House considered presidential perjury to be an impeachable offense.

Plaintiffs in the Seattle case, Karnoski v. Trump (in which the president remains a defendant), are represented by Lambda Legal and pro bono attorneys from Kirkland & Ellis. Plaintiffs in the D.C. case, Jane Doe 2 v. Trump, are represented by the National Center for Lesbian Rights, GLBTQ Legal Advocates & Defenders (GLAD), and pro bono attorneys from Wilmer Cutler Pickering Hale & Dorr LLP and Foley Hoag LLP.

Addendum:

On August 14, U.S. Magistrate Judge A. David Copperthite, to whom Baltimore U.S. District Judge Marvin J. Garbis had referred discovery matters in Stone v. Trump, another one of the pending cases, issued a ruling granting in part the plaintiffs’ motion to compel discovery of deliberative materials regarding Trump’s July 2017 tweet, August 2017 memorandum, the “activities of the DoD’s so-called panel of experts and its working groups” who put together the memorandum ultimately submitted by Mattis to the President in February 2018, and deliberative materials regarding that Implementation Plan and the President’s March memorandum, “including any participation or interference in that process by anti-transgender activists and lobbyists.” However, noting that a motion is pending before Judge Garbis to dismiss Trump as a defendant in the case, Judge Copperthite declined to rule on the government’s request for a protective order that would shield Trump from having to respond to discovery requests directed to him, “pending the resolution of the motion to dismiss President Trump as a party.”  Cooperthite wrote that “no interrogatories or document requests will be directed to President Trump as a party, but may be directed to other parties pursuant to this Memorandum Opinion.  If the Motion to Dismiss is denied, the Court will revisit the issue of the protective order as to President Trump.”

Cooperthite faced a practical dilemma in dealing with the government’s requests to shield Trump from discovery. “On July 27, 2017, President Trump tweeted transgender persons would no longer be able to serve in the military and as for any deliberative process, simply stated this policy occurred after consulting with ‘my Generals and military experts.’  There is no evidence to support the concept that ‘my Generals and military experts’ would have the information Plaintiffs request.  There is no evidence provided to this Court that ‘my Generals and military experts’ are identified, in fact do exist, or that they would be included in document requests and interrogatories propounded to the Executive Branch, excluding the President.  By tweeting his decisions to the world, the President has, in fact narrowed the focus of Plaintiffs’ inquiries to the President himself.  The Presidential tweets put the President front and enter as the potential discriminating official.”  So there is a real question whether discovery that doesn’t include President Trump is at all meaningful, since the ultimate legal question in the litigation is the intent of the government in adopting the ban which is, at bottom, Trump’s intent.  On the other hand, discovery directed at President Trump raises serious questions about separation of powers and the traditional respect for the confidentiality of internal White House policy deliberations.

“So many factors are unknown at this juncture in the litigation,” wrote Copperthite. “It is unknown whether Plaintiffs can obtain the information necessary from the non-Presidential discovery to define the ‘intent’ of the government with respect to the transgender ban.  Defendants offer as an alternative, a stay of discovery with respect to the President, until the Motion to Dismiss the President as a party is decided.  If the President, as the discriminating official, tweeted his transgender ban sua sponte as alleged, this Court sees no alternative to obtaining the intent of the government other than denying the protective order with respect to President Trump.”  However, he wrote, precedents “instruct this Court to give deference to the executive branch because ‘occasions for constitutional confrontation between the two branches should be avoided whenever possible.’”  Thus, Copperthite decided to put off deciding the protective order issue until after Judge Garbis decides whether to dismiss Trump as a party, but for now will order the defendants only to comply with discovery requests directed to defendants other than Trump, Secretary Mattis and the Secretaries of the various military branches.

Trump Administration Issues Directive Authorizing Federal Contractors to Discriminate Based on Religious Beliefs

Posted on: August 14th, 2018 by Art Leonard No Comments

Acting Director Craig E. Leen of the Office of Federal Contract Compliance Programs (OFCCP), an agency within the U.S. Department of Labor that is responsible for enforcing the non-discrimination policies with which federal contractors must comply, issued a “Directive” to agency staff and federal contractors on August 10, construing three recent Supreme Court decisions and two Trump Executive Orders to allow contractors to discriminate in carrying out their contracts based on their religious beliefs.

The first decision cited by Leen is Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Supreme Court’s June 4, 2018, ruling that reversed a lower court decision against a Denver-area baker who refused to make a wedding cake for a same-sex couple. The Supreme Court did not rule in Masterpiece Cakeshop that businesses have a general right to deny services to gay couples based on the owners’ religious beliefs, however.  The Court finessed that issue, finding instead that the lower court’s ruling had to be reversed because the Court discerned evidence that the Colorado Civil Rights Commission had exhibited overt hostility to religion in its treatment of baker Jack Phillips, who refused to bake a wedding cake for a same-sex couples based on his religious objections to same-sex marriage.  The evidence for this “hostility” boiled down to public statements by two commissioners, one of whom accurately summarized the legal rule that religious beliefs do not excuse a business from complying with state anti-discrimination law, and the other characterizing as “ugly” the use of religion to justify discrimination.  Justice Anthony Kennedy’s decision for the Court emphasized that generally businesses do not enjoy a right to discriminate based on the owners’ religious beliefs, and that a “neutral forum” free of overt hostility to religion could enforce the anti-discrimination laws against a religious objector.

Kennedy’s ruling also contended that Phillips could have believed he was entitled to decline the business because, at the time, same-sex marriages were not allowed or recognized in Colorado, and that the Commission had evinced hostility to religion by dismissing charges brought by a man who was turned down by several bakers who refused his request to make cakes decorated with religiously-based anti-gay scriptural quotes and slogans. The Court’s majority apparently believed the Commission was insufficiently evenhanded in dealing with cases involving religious views.

But Leen’s directive, consistent with two Trump Executive Orders and a Memorandum issued last fall by Attorney General Jeff Sessions, reorients the issue as “discrimination” against religious individuals when they are required to comply with non-discrimination requirements that conflict with their religious beliefs. “Recent court decisions have addressed the broad freedoms and anti-discrimination protections that must be afforded religion-exercising organizations and individuals under the United States Constitution and federal law,” he wrote, painting individuals and businesses who want their religious beliefs to take priority over any contrary legal obligations as “victims.”

Twisting recent Supreme Court opinions to support this assertion, Leen summarized Masterpiece Cakeshop as holding that “the government violates the Free Exercise clause when its decisions are based on hostility to religion or a religious viewpoint.” He summarized Trinity Lutheran Church of Columbia, In., v. Comer (2017), in which the Court held that a state could not categorically disqualify religious organizations from receiving state funds for non-religious purposes, as holding that the “government violates the Free Exercise clause when it conditions a generally available public benefit on an entity’s giving up its religious character, unless that condition withstands the strictest scrutiny.”  That case involved the state’s denial of funds to a religious school for repaving its playground, based on a state constitutional provision against providing taxpayer money to religious institutions.  Finally, Leen summarized the Supreme Court’s notorious Burwell v. Hobby Lobby ruling (2014), a 5-4 decision, as holding that “the Religious Freedom Restoration Act applies to federal regulation of the activities of for-profit closely held corporations.”   That case involved a demand by a business corporation owned by a small group of devout Catholics that they should not have to provide contraception coverage for their employees as required by regulations under the Affordable Care Act.  Very few federal contractors subject to federal anti-discrimination rules, which apply only to substantial federal contracts, are “closely held corporations,” so that characterization of RFRA does not seem particularly applicable to the cases where this Directive is likely to be implicated.

Leen also cited Trump’s Executive Order 13831, which states, “The executive branch wants faith-based and community organizations, to the fullest opportunity permitted by law, to compete on a level playing field for grants, contracts, programs and other Federal funding opportunities,” and Trump’s Executive Order 13798, which says, “It shall be the policy of the executive branch to vigorously enforce Federal law’s robust protections for religious freedom. The Founders envisioned a Nation in which religious voices and views were integral to a vibrant public square, and in which religious people and institutions were free to practice their faith without fear of discrimination or retaliation by the Federal Government. . .  Federal law protects the freedom of Americans and their organizations to exercise religion and participate fully in civic life without undue interference by the Federal Government.”  Sessions’ memorandum ran with these directives, asserting that the government should generally refrain from enforcing federal laws against people and businesses that have religious objections to complying with them.

The Directive instructs the OFCCP staff and notifies federal contractors that, in essence, they can discriminate in employing people or providing services under federal contracts if they are doing so based on their religious beliefs. The Supreme Court arguably opened the door to this kind of thinking in the Hobby Lobby and Trinity Lutheran cases, but it is rather a stretch to cite Masterpiece Cakeshop for this purpose, in light of Justice Kennedy’s invocation of Newman v. Piggie Park Enterprises, a 1968 case that held that a southern barbecue restaurant chain could not refuse to serve black customers based on the owner’s religious belief in racial segregation, as well as Employment Division v. Smith, a 1990 case that held that people do not enjoy a Free Exercise right to refuse to comply with state laws of general application that are on their face neutral with respect to religion.

Writing for the Court in Employment Division, Justice Antonin Scalia suggested that allowing individuals to claim exemptions from the law based on their individual religious beliefs unless the government could prove that it had a compelling interest was not required by the First Amendment. “Any society adopting such a system would be courting anarchy, but that danger increases in direct proportion to the society’s diversity of religious beliefs, and its determination to coerce or suppress none of them,” he wrote.  Although the Court’s holding was unanimous in that case, four justices concurred in an opinion arguing that Scalia had gone too far in contending, for a majority of the Court, that there was no need for the government to show there was an important government interest that justified burdening an individual’s free exercise of religion – in that case, a Native American who was denied unemployment benefits when he was fired after he flunked the employer’s drug test due to his ritual use of peyote.

Enforcing religiously-neutral anti-discrimination rules is not “hostility to religion” by the government. It is undertaken to prevent categorical discrimination against applicants and employees or those seeking government-funded benefits or services, because of their personal characteristics, such as race, national origin, sex or sexual orientation.  Notably, the federal laws and regulations that OFCCP is supposed to enforce do not apply to government contractors that are religious corporations or associations or religious educational institutions, “with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.”

This “Directive” is not a regulation adopted in accordance with the requirements of the Administrative Procedure Act, and Justice Alito’s opinion for the Court in Hobby Lobby, responding to concerns raised by Justice Ruth Bader Ginsburg in her dissenting opinion, denied that the Religious Freedom Restoration Act could be invoked as a defense in an employment discrimination case. How this will all play out if OFCCP refuses to hold contractors to their non-discrimination requirements in situations involving LGBT victims of religiously-motivated discrimination is yet to be seen, but the portents are not good in light of Trump’s nomination of Brett Kavanaugh to the Supreme Court, where, if confirmed, he would join the conservative majority in place of Justice Kennedy.  It is also worth noting that in his concurring opinion in Masterpiece Cakeshop, Justice Neil Gorsuch, Trump’s first Supreme Court nominee, implied that the Court should reconsider its holding in Employment Division v. Smith.