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Federal Court Issues Preliminary Injunction against Enforcement of New York City Adult Establishment Zoning Regulations

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

Continuing litigation efforts that date back a quarter of a century, a group of “gentlemen’s cabarets” (which the court alternatively describes as “strip clubs”) and adult bookstores located in Manhattan have brought suit to challenge the constitutionality of 2001 Amendments to the NYC Zoning Resolution as applied to “adult establishments.”  Numerous prior assaults on this measure, first passed during the Giuliani Administration in an attempt by the City to sharply reduce the number of adult establishments and to relocate them away from residential districts or close proximity to religious institutions, schools and other places where minors tend to congregate, were largely unsuccessful once they proceeded to the appellate level.  Surprisingly, however, given the City’s earnest attempts to beat back all challenges, U.S. District Judge William H. Pauley III relates that the City has not actively enforced the Resolution for eighteen years – effectively since the end of the Giuliani Administration.  Mayors Bloomberg and De Blasio turned their attentions elsewhere.  But the plaintiffs are concerned with the measure still on the books and the possibility it might be enforced against them in the future – thus this lawsuit.  725 Eatery Corp. d/b/a “Lace” v. City of New York, 2019 WL 4744218, 2019 U.S. Dist. LEXIS 169873 (S.D.N.Y., Sept. 30, 2019).

In this ruling, Judge Pauley grants the plaintiffs’ motion for a preliminary injunction against enforcement of the measure while the litigation goes forward on the merits.  This is in some sense largely symbolic, in light of the City’s prolonged failure to enforce the measure.

The list of counsel accompanying the opinion goes on for two pages, and the judge mentions that in connection with the pending motions, “the parties have offered a Homeric record of affidavits, documentary evidence, and stipulations.”  Most significant among the objections, perhaps, is that the Resolution was purportedly justified by a 1995 study of ‘secondary effects’ attributable to the presence of adult establishments, especially when several were located close together.  The reality is that, as a result of early enforcement efforts during the Giuliani Administration together with economic, residential and commercial development activity in the City over the past twenty years, the studies are clearly out-of-date and no longer easily support the Council’s conclusion that the rather drastic restrictions on the siting of adult establishments is still necessary in terms of public order and impact on property values.  Enforcement under Giuliani reduced the number of adult establishments and led to many of them significantly modifying their activities to try to avoid being labeled as adult establishments.

As Judge Pauley explains: “Tracing its origins to the City’s early 1990s crusade against adult entertainment businesses, this litigation has been ensnared in a time warp for a quarter century.  During that interval, related challenges to the City’s Zoning Resolution have sojourned through various levels of the state and federal courts.”  A major portion of the opinion is devoted to reciting in great detail the history of that litigation, from the initial 1995 enactment through the consequential 2001 amendments and a series of judicial decisions which culminated in a 2017 ruling by the New York Court of Appeals holding that the most recent version of the measure is constitutional, which was stayed until the Supreme Court denied review early in 2018.  For the People Theatres of N.Y., Inc. v. City of New York, 29 N.Y.3d 340, 57 N.Y.S.2d 69, 79 N.E.3d 461 (N.Y. 2017).

This new law suit was brought by Manhattan establishments that would not be considered “adult establishments” under the 1995 Regulation (which was construed by the courts to exempt establishments that devoted less than 40% of their space or stock to adult uses) but would be considered “adult establishments” under the 2001 amendments (which broadened coverage to deal with alleged “sham” reconfigurations that the City claimed had resulted in adult establishments continuing to operate while evading coverage).  In this case, the plaintiffs alleged deprivations of their 1st and 14th Amendment rights, arguing that if the 2001 Amendment were actively enforced, they “would decimate – and have already dramatically reduced – adult-oriented expression.”  The plaintiffs pointed out, restricting themselves to Manhattan numbers, that “the fifty-seven adult eating or drinking establishments existing at the time the City adopted the 2001 Amendments have now been culled to as few as twenty such establishments.  And for their part, the bookstore plaintiffs claim that of the roughly forty adult bookstores with booths that existed at the time of the 2001 Amendments, only twenty to twenty-five bookstores currently exist.”  They also pointed out that of these bookstores, virtually none are located in “permissible areas” under the 2001 Amendments.  The bookstore plaintiffs also pointed out that if the City were to actively enforce the 2001 rules, there would be very few places in the City, much less Manhattan, where such businesses could operate, essentially reduced to “undeveloped areas unsuitable for retail commercial enterprises, such as areas designated for amusement parks or heavy industry or areas containing toxic waste.”  They also noted yet again that the study of “secondary effects” conducted by the City prior to enactment of the 1995 measure has never been updated, never been validated in light of the 40% rule, and had addressed a Cityscape radically different from what exists today.

In deciding whether to grant a preliminary injunction – and noting that the City is not actively enforcing the current regulations – the court addressed several crucial factors: whether enforcement would inflict an irreparable injury on the plaintiffs, the likelihood the plaintiffs would succeed on their constitutional arguments, the balance of hardship on the plaintiffs and the City, and the Public Interest.

First, Judge Pauley concluded, “assuming that the 2001 Amendments – which purportedly impose a direct limitation on speech – violate the Constitution, Plaintiffs have demonstrated irreparable harm.”  This conclusion was based on many court opinions finding that monetary damages are insufficient to compensate somebody for a loss of their constitutional rights.

Turning to likelihood of success on the merits, the judge found that the weak link in the defendants’ opposition was the reduction of the number of locations where adult establishments could operate if the 2001 Regulations were enforced.  Precedents require that any regulation of adult uses must, because of its impact on freedom of speech, leave “reasonable alternative channels” for the speech to take place and be heard.  In other words, the zoning rules must allow enough appropriate locations so that adult businesses can operate and members of the public can access their goods and services.  “On this preliminary record,” wrote Pauley, “this Court is skeptical that the 2001 Amendments leave open sufficient alternative avenues of communication.  With respect to the outer boroughs, the DCP [Department of Consumer Protection] generated a map for each borough identifying the areas allowing and prohibiting adult establishments as of October 31, 2019. . . .  Compared to the maps the DCP created in connection with the 1995 Regulations, the 2019 maps appear to offer slightly less available space for adult entertainment.  But the City’s maps do not seem to indicate how the amount of available land would be affected by the requirement that adult establishments be located at least 500 feet from sensitive receptors or other adult establishments.”  After a critical analysis of the evidence presented, Pauley concluded that “plaintiffs have sufficiently demonstrated at this stage that the enforcement of the 2001 Amendments will deny them adequate alternative channels to offer their adult expression.”

Finally, the court determined “that the balance of hardships weighs in favor of Plaintiffs, and the issuance of preliminary injunctive relief would not disserve the public interest.”  The plaintiffs submitted affidavits showing that enforcement would cause them to lose their businesses, breaching contracts and leases, having to lay off employees, and suffering the financial and time costs of relocation.  Furthermore, since the City has not been actively enforcing these rules for eighteen years, according to the court, a preliminary injunction would not result in any harm to the City.  “While this Court credits Defendants’ contention that the 2001 Amendments are designed to abate the pernicious secondary effects of adult establishments,” wrote Pauley, “it also recognizes that the City ‘does not have an interest in the enforcement of an unconstitutional law.’”

Pauley’s concluding remarks leave little doubt about his skepticism about the further need for the adult zoning rules as last amended in 2001.  “The adult-use regulations that are the subject of these now-revived constitutional challenges are a throwback to a bygone era,” he wrote.  “The City’s landscape has transformed dramatically since Defendants last studied the secondary effects of adult establishments twenty-five years ago.  As Proust might say, the ‘reality that [the City] had known no longer existed,’ and ‘houses, roads, avenues are as fugitive, alas, as the years,’” quoting from Remembrance of Things Past (1913).  But, the judge was careful to caution that this was not a final ruling on the merits, and that issuing the preliminary injunction “says nothing about whether Plaintiffs will in fact succeed on the merits of their claims.” He set a status conference for October 31, and directed the parties to file a “joint status report” by October 24 “detailing their respective positions on how to proceed with the balance of this action.”  He also directed that they confer on a discover plan as the case moves forward.  Of course, in light of the passage of time and the changes in the City, what would make sense would be for the City to negotiate a settlement that would involve substantial revisions to the adult-use zoning provisions to reflect the changed situation.

The number of law firms with a piece of this case is altogether too long to list here.

Alliance Defending Freedom Asks Supreme Court to Revisit Religious Exemption Issue

Posted on: October 1st, 2019 by Art Leonard No Comments

Alliance Defending Freedom (ADF), a religious freedom litigation group, is asking the Supreme Court to take a second look at Arlene’s Flowers v. State of Washington, No. 19-333 (Docketed September 12, 2019), in which the Washington Supreme Court held that a florist who refused to provide her usual custom floral design and installation wedding services for a same-sex couple had violated the state’s anti-discrimination law, and did not have a valid 1st Amendment defense.  The Washington court’s original decision was vacated by the Court in June 2018 for reconsideration in light of the Court’s ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018), but the Washington Supreme Court reiterated its earlier holding, 441 P.3d 1203 (Wash. 2019), finding that the record of proceedings in the Superior Court and the Supreme Court in the earlier litigation showed no evidence of hostility to religion and thus was not affected by the Supreme Court’s ruling in Masterpiece.

The Petition proposes two questions for review:  1. Whether the State violates a floral designer’s First Amendment rights to free exercise and free speech by forcing her to take part in and create custom floral art celebrating same-sex weddings or by acting based on hostility toward her religious beliefs; and 2. Whether the Free Exercise Clause’s prohibition on religious hostility applies to the executive branch.

In the first question, the Petitioner asks the Court to take up the underlying constitutional issues in Masterpiece Cakeshop, which the Court evaded in its opinion, and to resolve them once and for all, pointing to litigation from around the country in which small businesses had declined to provide goods or services for same-sex weddings, based on the religious beliefs of the proprietors, and had been hauled into state human rights commissions or courts on charges of violating anti-discrimination laws.  There have been mixed results in these cases.  Beginning with a recalcitrant wedding photographer in New Mexico and continuing with cases involving bakers, florists, commercial wedding venues, stationers and videographers, administrative agencies and courts consistently ruled against allowing religious belief exemptions from generally-applicable anti-discrimination laws covering sexual orientation.  However, more recently, there has begun what may be a pendulum swing in the opposite direction, sparked in part by persistent appeals by ADF from adverse administrative and trial court rulings in affirmative litigation seeking declaratory judgments to establish religious exemptions.

In Masterpiece, the Court found several grounds taken together upon which to reverse the Colorado Court of Appeals’ ruling against the baker, most notably characterizing some public comments by Colorado commissioners that the Court found to evidence open hostility to the baker’s religious views.  The Court also noted an inconsistency in the Colorado Commission’s dismissal of complaints against bakers by a religious provocateur who sought to order cakes decorated to disparage same-sex marriages and was turned down.  The Court also noted that at the time the couple approach the baker, same-sex marriage was not yet legal in Colorado, so the baker could have believed he had no obligation to make such a cake.  While reasserting the general principle that businesses do not enjoy a religious freedom exemption from complying with public accommodation anti-discrimination laws, the Court observed that litigations raising religion freedom claims are entitled to a “neutral” forum to decide their cases, not one evidencing hostility to their religious views.

In Arlene’s Flowers, ADF had filed a statement with the Court after Masterpiece suggesting that evidence of hostility could be found in that case, and the Washington Supreme Court took the remand as a charge to scour the record for signs of such, which it did not find.  The Washington court read Masterpiece to be focused solely on the hostility or non-neutrality of the forum deciding the case.  That case did not involve a hearing before an administrative agency, as the first decision was by the trial court.

In its second proposed question, ADF argues that this was error by the Washington Supreme Court, contending that while the Masterpiece ruling was based on open hostility by commissioners, it could not properly be read to impose a ban on governmental hostility only on government actors performing the function of adjudicating cases.  ADF argues that the Attorney General of Washington evinced hostility and discrimination against religion by seizing upon news reports to come down hard on the florist, threatening litigation if she did not certify that in future should would provide her services to same-sex couples for weddings, making public comments criticizing religious objection to providing such services, and failing to bring similar action based on news reports about a coffee-shop owner expelling “Christians” from his establishment “based on religious views they expressed on a public street.”  ADF also criticized as “unprecedented” the Attorney General’s action in suing under the state’s Consumer Protection Law as well as the anti-discrimination law.

The Petition’s statement of facts is artfully written to suggest a saintly woman who loves gay people and happily sells them flowers for a variety of occasions, but just balks at providing custom weddings services based on her sincerely-held religious beliefs.  It argues that there is no evidence in the record of hostility toward gay people by the florist, emphasizing the long relationship she had selling floral goods to the men whom she turned down for wedding-related services, and maintaining that she had not turned down their business because they were gay but rather due to her religious objections to their wedding, and trying to draw that distinction as requiring dismissal of the discrimination complaint entirely.

The Petition argues that the Washington  Supreme Court took too narrow a view of the Supreme Court’s doctrine concerning the obligation of the government to refrain from hostility towards religion, pointing to cases where the Court had found legislatures as well as adjudicators to have violated the 1st Amendment, and argued that executives, such as the Attorney General, were no less bound by the First Amendment.  The Petition builds on a recent ruling by the 8th Circuit in the videographer case reported last month, Telescope Media Group v. Lucero, 2019 WL 3979621 (Aug. 23, 2019), and seeks to position the Petitioner, a florist, in the same category of First Amendment expression.  In effect, the Petition asks the Court to hold that any business that engages in creative expression for hire cannot be compelled to provide its services for an activity of which it disapproves on religious grounds.

Without making it a central part of the argument, the Petition notes several instances in which various members of the Court have suggested a need to reconsider its long-standing precedent in Employment Division v. Smith, 494 U.S. 872 (1990), intimating that this is the ideal case to do so.  That was the case that reversed decades of 1st Amendment free exercise precedents to hold that religious objectors do not enjoy a privilege to refuse to comply with religiously-neutral state laws of general application that incidentally may burden their free exercise of religion.  Employment Division prompted Congress to pass the Religious Freedom Restoration Act, applying the pre-Employment Division caselaw to the interpretation of federal statutes, and leading many states to pass similar laws.  A ruing overruling Employment Division and reinstating prior would law would, in effect, constitutionalize the Religious Freedom Restoration Act, making it more difficult in many cases for LGBTQ people suffering discrimination to vindicate their rights through legislative action, since the state and federal legislatures cannot overturn a Supreme Court constitutional ruling.

Federal Court Enjoins Michigan Policy Requiring Faith-Based Adoption Agencies to Certify Same-Sex Couples as Suitable Adoptive or Foster Parents

Posted on: September 28th, 2019 by Art Leonard No Comments

Chief U.S. District Judge Robert J. Jonker ruled that a faith-based adoption and foster care agency should not be endangered with loss of its license to function as a certified child placement agency under contract with the state of Michigan while a lawsuit proceeds challenging the state’s current interpretation of its non-discrimination law resulting from the settlement agreement between the state and some same-sex couples in a separate case.  Buck v. Gordon, 2019 U.S. Dist. LEXIS 165196, 2019 WL 4686425 (W.D. Mich., Sept. 26, 2019).

The ruling follows a complicated series of events and is based on a detailed review by the court of the systems and procedures in place for adoption and foster care in Michigan.

According to Judge Jonker’s opinion, a Michigan regulation and the federal law under which financial assistance is channeled to Michigan to support the state’s adoptive and foster-care system requires that people seeking to be certified as qualified to be adoptive or foster parents not be subjected to discrimination because of sexual orientation or gender identity, among many prohibited grounds of discrimination.

Because some of the private agencies under contract with the state to provide these services are “faith-based” agencies whose religious views would prevent them from certifying single people or same-sex couples as qualified, and the state legislature did not want to see such agencies abandon the field, the state enacted a statute in 2015 allowing faith-based agencies to refer applicants to other agencies to perform the evaluation process and issue the certifications if the agency’s religious beliefs would prevent them from being able to certify an applicant or couple.

Some same-sex couples challenged this “religious freedom” statute as violating their constitutional rights in Dumont v. Gordon, Case No. 2:17-cv-13080 (E.D. Mich., filed Sept. 20, 2017).  The state defended the statute, and St. Vincent Catholic Charities, a long-time faith-based provider of such services, was drawn into the case, because the same-sex couples had approached St. Vincent and were referred elsewhere for their home study and certification.  After out lesbian Dana Nessel was elected Attorney General, during a campaign in which she criticized the state law which, which she said was authorizing discrimination against LGBT people, she changed the state’s position, and her office negotiated a settlement under which the state undertook to enforce the anti-discrimination rules without any exception for faith-based agencies.

St. Vincent, whose contract with the state covering adoption services expires September 30, 2019, was warned that unless it dropped its policy of referring same-sex couples to other agencies, its contract might not be renewed, which would mean not only the loss of state money but the loss of its status as a contracted services provider, which meant it could no longer function in the adoption placement service.  Its contract for foster care services runs through September 30, 2021, so is not in immediate danger of non-renewal.

In this lawsuit, St. Vincent and some of the foster and adoptive parents who have worked with it in the past brought suit challenging the state’s action, seeking the protection of the statute that was challenged in the earlier case, and a declaration that any requirement for St. Vincent to drop its objection to examining and certifying same-sex prospective adoptive or foster parents would violate the 1st and 14th Amendments.  In addition to naming state officials, the lawsuit names the U.S. Secretary of Health and Human Services, as federal non-discrimination regulations are also implicated.  As a result, the lawsuit also rests on the federal Religious Freedom Restoration Act.

As Judge Jonker describes the system, although St. Vincent routinely refers same-sex couples to other agencies for certification, once an individual or couple are certified to be adoptive or foster parents, they may adopt or foster through St. Vincent.  St. Vincent has placed children with same-sex couples, and opens the various supportive services it provides to adoptive and foster families of such couples.  The only issue as to which there is disagreement between St. Vincent and the state, according to their Complaint, is the issue of evaluating the prospective parents and certifying them.

Judge Jonker concluded that in light of these facts, St. Vincent should be entitled to a preliminary injunction while the case is being litigated, with the pressing deadline of September 30 for renewal of their current contract as an adoption service provider looming just days after the injunction was issued.

The first essential test for injunctive relief is whether St. Vincent is likely to be successful in their claim of a constitutional violation.  Finding that this test was met, the judge said that this case is not covered by Supreme Court precedents holding that no religious exemption is required when a challenged law is neutral with respect to religion and is of general applicability, of which the leading case is Employment Division v. Smith, 494 U.S. 872 (1990).  Taking account of the historical background to the challenged policy here, the judge found that “the historical background, specific series of events, and statements of Defendant Nessel all point toward religious targeting.”

Reviewing the sequence of events described above, he found that “the 2018 campaign for Michigan Attorney General and General Nessel’s statements create a strong inference that the State’s real target is the religious beliefs and confessions of St. Vincent, and not discriminatory conduct.”  He based this conclusion on St. Vincent’s allegation that it “has never prevented a same-sex couple from fostering or adopting a child.”  If St. Vincent was required to accept applications from same-sex couples and carry out its evaluation, it would be put to the task of stating whether the couple should be certified to be adoptive or foster parents, a determination that it would want to make in accord with its religious principles, which would mean denying the certification.  Instead, St. Vincent makes referrals of such couples to other agencies, knowing that those agencies will certify the couples if they meet the objective criteria specified by state regulations.

Furthermore, he appointed out, under the system in Michigan, children who need an adoptive or foster placement are referred to contracted agencies through the Michigan Adoption Resource Exchange (MARE) and, he found, “St. Vincent has actually placed children though the MARE system with same-sex adoptive parents.”  Once a prospective couple has been certified, St. Vincent avows, they are treated the same as any other certified couple with regard to all its adoption and fostering placements and services.

“The State is willing to prevent St. Vincent from doing all this in the future simply because St. Vincent adheres to its sincerely held religious belief that marriage is an institution created by God to join a single man to a single woman,” he wrote.  “Because of that religious belief, St. Vincent says it cannot in good conscience review and certify an unmarried or same-sex parental application.  St. Vincent would either have to recommend denial of all such applications, no matter how much value they could provide to foster and adoptive children; or St. Vincent would have to subordinate its religious beliefs to the State-mandated orthodoxy, even though the State is not compensating them for the review services anyway.”  St. Vincent makes referrals of single folks and same-sex couples to other agencies to avoid being put into this quandary.

The court notes that until Attorney General Nessel took office, the state had been defending this practice in the prior litigation, and Nessel’s rhetoric during the campaign convinced the judge that the settlement of the Dumont lawsuit and the agreement to enforce the non-discrimination policy against all contracting agencies showed that the new policy is targeting religion even though it appears neutral on its face.

Judge Jonker determined that this is a “strict scrutiny” case because it targets religious belief, and that under this demanding test, the new policy is likely to be held unconstitutional.  He also found that this case was materially distinguishable from the Philadelphia case decided by the 3rd Circuit Court of Appeals earlier this year, Fulton v. City of Philadelphia, 922 F.3d 140 (2019), because of differences in the facts: the Catholic agency in Philadelphia was refusing to deal with same-sex couples at all, while St. Vincent refers them to other agencies for certification, and once they are certified, will place children with them and provide supportive services.

The court also determined that the balance of harms as between issuing or not issuing the injunction weighed in favor of issuing it, against both the state and the federal government, because of the possibility (remote, it would seem) that the Trump Administration would cut off funds to a state that has passed a law allowing faith-based agencies to abstain from providing some services based on their religious beliefs.  As to the public interest, the court found that it is in the interest of the public not to shut down any adoption or foster care agencies in light of the significant number of children in Michigan that need placements and the supportive services that St. Vincent provides, including to same-sex couples and their adoptive or foster children.

The court rejected the state’s argument that these issues had already been decided in Dumont  in favor of applying the non-discrimination policy to all agencies. The judge pointed out that Dumont was settled by the parties after Nessel changed the state’s position.  There was no judgment on the merits by the court, so there was no final judgment determining the underlying legal issue and no reason to find the issue res judicata.

The court’s use of the Supreme Court’s Masterpiece Cakeshop ruling in rendering this decision is noteworthy.  In Masterpiece, the Supreme Court refrained from ruling on the underlying constitutional question whether a baker has a 1st Amendment right to decline to produce custom wedding cakes for same-sex couples, instead ruling for the baker based on the Court’s detection in the record of overt hostility to religion by some of the members of the Colorado civil rights commission that was deciding that case at the administrative level.  Since then, several lower courts have focused on the Supreme Court’s “hostility to religion” language, and Judge Jonker does in this case, finding that Nessel’s “hostility to religion” expressed during her election campaign feeds into the question whether the state’s current position targets religion, even though the policy is facially neutral, applying the non-discrimination policy to all adoption and foster care services, not just faith-based ones.

Judge Jonkin prefaced his opinion with a careful statement about what was not at issue.  “This case is not about whether same-sex couples can be great parents,” he wrote.  “They can.  No one in the case contests that.  To the contrary, St. Vincent has placed children for adoption with same-sex couples certified by the State.”  To the judge, this case was about whether St. Vincent can continue to operate in a way consistent with the religious creed to which it subscribes, or whether it must violate those religious beliefs if it is to continue providing adoption and foster care services.

The Becket Fund for Religious Liberty of Washignton D.C. provided legal representation to the plaintiffs and St. Vincent.  Michigan’s Department of the Attorney General represented the state defendants, and the U.S. Justice Department represented the federal defendants.  The plaintiffs in Dumont v. Gordon, Kristy and Dana Dumont, were represented as amici by attorneys from the ACLU and pro bono counsel from Sullivan & Cromwell LLP.

Although this was just a ruling on a preliminary injunction, it signals quite clearly that Judge Jonker’s final ruling on the merits is likely to go the same way.  The State could appeal the ruling to the 6th Circuit Court of Appeals.  Judge Jonker, who is the chief judge for the Western District of Michigan, was appointed by President George W. Bush in 2007.

Federal Court Dismisses Challenge to Maryland Law Against Conversion Therapy for Minors

Posted on: September 24th, 2019 by Art Leonard No Comments

On September 20, U.S. District Judge Deborah K. Chasanow of the federal district court in Maryland granted that state’s motion to dismiss a lawsuit brought by Liberty Counsel on behalf of a conversion therapy practitioner who was challenging the state’s recently enacted law that provides that “a mental health or child care practitioner may not engage in conversion therapy with an individual who is a minor.” The ban is enforceable  through the professional licensing process enforced by the Department of Health and Mental Hygiene.  The named defendants are Governor Larry Hogan and Attorney General Brian Frosh.  The case is Doyle v. Hogan, 2019 WL 4573382, 2019 U.S. Dist. LEXIS 160709 (D. Md., Sept. 20, 2019).

The plaintiff, Christopher Doyle, argued that the law violates his right to freedom of speech and free exercise of religion, seeking a preliminary injunction against the operation of the law while the litigation proceeds.  Having decided to dismiss the case, however, Judge Chasanow also denied the motion for preliminary relief as moot.  Liberty Counsel immediately announced an appeal to the U.S. Court of Appeals for the 4th Circuit, which has yet to rule on a constitutional challenge against a conversion therapy ban.

Several U.S. Circuit courts have rejected similar challenges.  The New Jersey statute, signed into law by Governor Chris Christie, was upheld by the 3rd Circuit Court of Appeals, which ruled that the state has the power to regulate “professional speech” as long as there was a rational basis for the regulation.  King v. Governor of New Jersey, 767 F. 3d 216 (3rd Cir. 2014). The California statute, signed into law by Governor Jerry Brown, was upheld by the 9th Circuit, which characterized it is a regulation of professional conduct with only an incidental effect on speech, and thus not subject to heightened scrutiny by the court.  Pickup v. Brown, 740 F.3d 1208 (9th Cir. 2015).  Liberty Counsel is also appealing a similar ruling by a federal court in Florida to the 11th Circuit.

The task of protecting statutory bans on conversion therapy against such constitutional challenges was complicated in June 2018 when U.S. Supreme Court Justice Clarence Thomas, writing for the Court in a 5-4 decision involving a California law imposing certain notice requirements on licensed and unlicensed pregnancy-related clinics, wrote disparagingly of the 3rd and 9th Circuit conversion therapy opinions.  National Institute of Family and Life Advocates v. Becerra, 138 S. Ct. 2361 (2018). The California statute required the clinics to post notices advising customers about pregnancy-related services, including family planning and abortion, that are available from the state, and also required non-licensed clinics to post notices stating that they were not licensed by the State of California.  The clinics protested that the statute imposed a content-based compelled speech obligation that violated their free speech rights and was subject to “strict scrutiny.” Such speech regulations rarely survive a strict scrutiny constitutional challenge.

The Supreme Court voted 5-4 to reverse a decision by the 9th Circuit, which had ruled that the notices constituted “professional speech” that was not subject to “strict scrutiny.”  In so doing, Justice Thomas rejected the idea that there is a separate category of “professional speech” that the government is free to regulate.  He asserted that “this Court has not recognized ‘professional speech’ as a separate category of speech.  Speech is not unprotected merely because it is uttered by ‘professionals.’”

“Some Court of Appeals have recognized ‘professional speech’ as a separate category of speech that is subject to different rules,” Thomas observed, citing among examples the 3rd Circuit and 9th Circuit conversion therapy cases.  “These courts define ‘professionals’ as individuals who provide personalized services to clients and who are subject to ‘a generally applicable licensing and regulatory regime.’ ‘Professional speech’ is then defined as any speech by these individuals that is based on ‘[their] expert knowledge and judgment,’ or that is ‘within the confines of [the] professional relationship,’” this time quoting from the 3rd Circuit and 9th Circuit opinions.  “So defined, these courts except professional speech from the rule that content-based regulations of speech are subject to strict scrutiny,” again citing the 3rd and 9th Circuit cases.

After reiterating that the Supreme Court has not recognized a category of “professional speech,” Thomas does concede that there are some circumstances where the court has applied “more deferential review” to “some laws that require professionals to disclose factual, noncontroversial information in their ‘commercial speech,” and that “States may regulate professional conduct, even though that conduct incidentally involves speech.”  But, the Court concluded, neither of those exceptions applied to the clinic notice statute.

As a result of Justice Thomas’s comments about the 3rd and 9th Circuit cases, when those opinions are examined on legal research databases such as Westlaw or Lexis, there is an editorial indication that they were “abrogated” by the Supreme Court.  Based on that characterization, Liberty Counsel sought to get the 3rd Circuit to “reopen” the New Jersey case, but it refused to do so, and the Supreme Court declined Liberty Counsel’s request to review that decision.

Liberty Counsel and other opponents of bans on conversion therapy have now run with this language from Justice Thomas’s opinion, trying to convince courts in new challenges to conversion therapy bans that when the practitioner claims that the therapy is provided solely through speech, it is subject to strict scrutiny and likely to be held unconstitutional.  The likelihood that a law will be held unconstitutional is a significant factor in whether a court will deny a motion to dismiss a legal challenge or to grant a preliminary injunction against its enforcement.

Liberty Counsel used this argument to attack conversion therapy ordinances passed by the city of Boca Raton and Palm Beach County, both in Florida, but U.S. District Judge Robin Rosenberg rejected the attempt in a ruling issued on February 13, holding that despite Justice Thomas’s comments, the ordinances were not subject to strict scrutiny and were unlikely to be found unconstitutional. She found that they were covered under the second category that Justice Thomas recognized as being subject to regulation: where the ordinance regulated conduct that had an incidental effect on speech.  Otto v. City of Boca Raton, 353 F. Supp. 3d 1237 (S.D. Fla. 2019).

Liberty Counsel argued against that interpretation in its more recent challenge to the Maryland law.  It argued in its brief, “The government cannot simply relabel the speech of health professionals as ‘conduct’ in order to restrain it with less scrutiny,” and that because Dr. Doyle “primarily uses speech to provide counseling to his minor clients, the act of counseling must be construed as speech for purposes of First Amendment review.”

The problem is drawing a line between speech and conduct, especially where the conduct consists “primarily” of speech.  Judge Chasanow noted that the 4th Circuit has explained, “When a professional asserts that the professional’s First Amendment rights ‘are at stake, the stringency of review slides ‘along a continuum’ from ‘public dialogue’ on one end to ‘regulation of professional conduct’ on the other,” continuing: “Because the state has a strong interest in supervising the ethics and competence of those professions to which it lends its imprimatur, this sliding-scale review applies to traditional occupations, such as medicine or accounting, which are subject to comprehensive state licensing, accreditation, or disciplinary schemes.  More generally, the doctrine may apply where ‘the speaker is providing personalized advice in a private setting to a paying client.’”

And, quoting particularly from the 3rd Circuit New Jersey decision, “Thus, Plaintiff’s free speech claim turns on ‘whether verbal communications become ‘conduct’ when they are used as a vehicle for mental health treatment.”

Judge Chasanow found that the Maryland statute “obviously regulates professionals,” and although it prohibits particular speech “in the process of conducting conversion therapy on minor clients,” it “does not prevent licensed therapists from expressing their views about conversion therapy to the public and to their [clients.]”  That is, they can talk about it, but they can’t do it!  “They remain free to discuss, endorse, criticize, or recommend conversion therapy to their minor clients.”  But, the statute is a regulation of treatment, not of the expression of opinions.  And that is where the conduct/speech line is drawn.

She found “unpersuasive” Liberty Counsel’s arguments that “conversion therapy cannot be characterized as conduct” by comparing it to aversive therapy, which goes beyond speech and clearly involves conduct, usually involving an attempt to condition the client’s sexual response by inducing pain or nausea at the thought of homosexuality.  She pointed out that “conduct is not confined merely to physical action.” The judge focused on the goal of the treatment, reasoning that if the client presents with a goal to change their sexual orientation, Dr. Doyle would “presumably adopt the goal of his client and provide therapeutic services that are inherently not expressive because the speech involved does not seek to communicate [Doyle’s] views.”

She found that under 4th Circuit precedents, the appropriate level of judicial review is “heightened scrutiny,” not “strict scrutiny,” and that the ordinance easily survives heightened scrutiny, because the government’s important interest in protection minors against harmful treatment comes into play, and the legislative record shows plenty of data on the harmful effects of conversion therapy practiced on minors.  She notes references to findings by the American Psychological Association Task Force, the American Psychiatric Association’s official statement on conversion therapy, a position paper from the American School Counselor Association, and articles from the American Academy of Child and Adolescent Psychiatry and the American Association of Sexuality Educations, Counselor, and Therapists.  Such a rich legislative record provides strong support to meet the test of showing that the state has an important interest that is substantially advanced by banning the practice of conversion therapy on minors.

Having reached this conclusion, the judge rejected Liberty Counsel’s argument that the ban was not the least restrictive way of achieving the legislative goal, or that it could be attacked as unduly vague.  It was clear to any conversion therapy practitioner what was being outlawed by the statute, she concluded.

Turning to the religious freedom argument, she found that the statute is “facially neutral” regarding religion.  It prohibits all licensed therapists from providing this therapy “without mention of or regard for their religion,” and Liberty Counsel’s Complaint “failed to provide facts indicating that the ‘object of the statute was to burden practices because of their religious motivation.’”  She concluded that Doyle’s “bare conclusion” that the law “displays hostility toward his religious convictions is not enough, acting alone, to state a claim” that the law violates his free exercise rights.  She also rejected the argument that this was not a generally applicable law because it was aimed only at licensed practitioners.  Like most of the laws that have been passed banning conversion therapy, the Maryland law does not apply to religious counselors who are not licensed health care practitioners.  Because the law is enacted as part of the regulation of the profession of health care, its application to those within the profession is logical and has nothing to do with religion.  As a result, the free exercise claim falls away under the Supreme Court’s long-standing precedent that there is no free exercise exemption from complying with religiously-neutral state laws.

Having dismissed the First Amendment claims, Judge Chasanow declined to address Liberty Counsel’s claims under the Maryland Constitution, since there is no independent basis under the court’s jurisdiction to decide questions of state law.

Joining the Office of the Maryland Attorney General in defending the statute were FreeState Justice, Maryland’s LGBT rights organization, with attorneys from the National Center for Lesbian Rights and Lambda Legal.  Also, the law firm of Gibson Dunn & Crutcher of Washington, D.C., submitted an amicus brief on behalf of The Trevor Project, which is concerned with bolstering the mental health of LGBT youth.

Senior District Judge Chasanow was appointed to the court by President Bill Clinton in 1993.

 

Federal Court Narrows Discovery in Trans Military Case, but Rejects Government’s Broad Privilege Claims

Posted on: September 20th, 2019 by Art Leonard No Comments

U.S. District Judge Colleen Kollar-Kotelly, ruling in the first of four pending lawsuits challenging the current version of the military policy on transgender service, issued a wide-ranging ruling on September 13 attempting to settle some of the remaining problems in deciding what information the plaintiffs are entitled to obtain through discovery as the case continues. The case, renamed since President Trump was removed as a defendant and James Mattis quit as Defense Secretary, is now called Jane Doe 2 v. Mark T. Esper, 2019 WL 4394842, 2019 U.S. Dist. LEXIS 156803 (D.D.C., September 13, 2019)

The decision makes clear that the court has rejected the government’s argument that the so-called “Mattis Plan,” implemented in April 2019 after the Supreme Court voted to stay the preliminary injunctions that had been issued by the district courts, is entitled to virtually total deference from the court, thus precluding any discovery into how the Mattis Plan was put together, allegedly by a task force of experts convened by Defense Secretary James Mattis in response to the president’s request for a plan to implement the total ban on transgender service that he announced by tweet in July 2017.

When Trump came into office, transgender people were serving openly in the military as a result of a policy announced at the end of June 2016 by President Obama’s Defense Secretary, Ashton Carter.  The Carter policy lifted the existing ban on open transgender military service, but delayed lifting the ban on enlistment of transgender people for one year.  The first move by the Trump Administration concerning this policy was an announcement by Secretary Mattis at the end of June 2017 that he would not lift the enlistment ban until January 2018 in order to make sure that all necessary policies were in place to evaluate transgender applicants for enlistment.

A few weeks later, catching just about everybody by surprise, President Trump tweeted his announcement of a total ban on transgender people serving.  This was followedby a White House memorandum in August 2017, delaying enlistment of transgender people indefinitely, but allowing those already in the military to continue serving until March 2018 while Secretary Mattis came up with an implementation plan to recommend to the president.

Starting in August 2017 and continuing into the fall, four law suits were filed in federal district courts around the country challenging the constitutionality of the ban as announced by the President.  Federal district judges issued preliminary injunctions in all four lawsuits while denying the government’s motion to dismiss them, setting the stage for discovery to begin.  Discovery is the phase of a lawsuit during which the parties can request information, testimony and documents from each other in order to build a factual record for the decision of the case, and under federal discovery rules, anything that may be relevant to decide the case may be discoverable, subject to privileges that parties may assert.

In February 2018, Secretary Mattis released a report, purportedly compiled by a task force of senior military personnel and experts whom Mattis did not identify, discussing transgender military service and recommending a policy that differed in many respects from the absolute ban Trump had announced.  Under this proposed policy, the enlistment ban would be relaxed for transgender people who have not been diagnosed with gender dysphoria and are willing to serve in their gender as identified at birth.  The policy would allow transgender people who were serving to continue doing so.  Those who were transitioning as of the date the policy was implemented would be allowed to complete their transition and serve in their desired gender.  Otherwise, transgender personnel would have to serve in their gender as identified at birth, and would be separated from the service if they were diagnosed with gender dysphoria.  Nobody would be allowed to initiate transition while in the military once this policy was implemented.  There was no guarantee that transgender personnel would be allowed re-enlist at the end of their term of enlistment unless they met the same standards as a new applicant.  In short, the proposed policy would allow some transgender people to serve, but not all who were otherwise qualified, and would place certain restrictions on those who were allowed to continue serving.

Trump’s response to the recommendation was to revoke his prior policy announcements and to authorize Mattis to implement what became known as the Mattis Plan.  However, all the preliminary injunctions were still in place, so the government concentrated on getting the injunctions dissolved or withdrawn and getting the district judges to dismiss the cases on the ground that the policy they were attacking no longer existed.  The district judges resisted this move, some appeals were taken to the courts of appeals, and ultimately the Mattis Plan was implemented more than a year after it was proposed to the president, when the Supreme Court cut through the procedural difficulties and ruled, without a written opinion, that the Mattis Plan could go into effect while the lawsuits continued.

The focus of the lawsuits now switched to challenge the constitutionality of the Mattis Plan, and the parties went back to battling about discovery after it was clear that the district courts would not dismiss these lawsuits merely because one plan had been substituted for another.  Although some transgender people can serve under the Mattis Plan, the Plan still discriminates both against transgender people who have been diagnosed with gender dysphoria and against those who have not by requiring them to forego obtaining a diagnosis and transitioning if they want to serve.

One of the issues for Judge Kollar-Kotelly was deciding whether the government was correct to argue that because the Mattis Plan resulted from a Task Force study and recommendation process, it was entitled to standard military deference, under which courts disclaim the power to second-guess the personnel policies the military adopts.  The government focused particularly on a concurring opinion in the D.C. Circuit panel opinion that had quashed the preliminary injunction in this case, which arguably supported the view that plaintiffs were not entitled to discovery of documents and testimony related to the “deliberative process” by which the Mattis Plan was devised.

The judge responded that this was the central issue of the case: whether the Mattis Plan is entitled to standard military deference.  She found that the concurring judge, Stephen Williams, was alone in his view, as the other two members of the D.C. Circuit panel, faithful to Supreme Court precedents, had not opposed discovery, find that the deference question turned on whether the Mattis Plan is “the result of reasoned decision-making” that relates to military readiness concerns.  If, as the plaintiffs suspect and have argued all along, Trump’s motivation in banning transgender military service was motivated by politics, not by any evidence that the Ashton Carter policy had harmed the military by allowing unqualified people to serve, it would not be the result of “reasoned decision-making “and thus not entitled to deference.

Agreeing with the plaintiffs, Judge Kollar-Kotelly wrote that she could not decide the appropriate level of deference (or non-deference) without access to information about how the Mattis Plan was devised.  Thus discovery should continue ,focused on that.  However, she rejected the plaintiffs’ argument that they should be allowed to conduct discovery on Mattis’s initial decision to delay enlistments for six months, or on the process by which Trump formulated the July 2017 total ban announced in his tweet and elaborated in the White House’s August 2017 memorandum. Those, she found, are no longer relevant when the focus of the lawsuit has shifted to the constitutionality of the Mattis Plan.

As to that, however, the judge ruled that the government’s attempt to shield access to relevant information under the “deliberative process privilege” was not applicable to this case.  Just as the current state of the record is inadequate to determine the level of deference, discovery of the deliberative process by which the Mattis Plan was devised is necessary to determine whether it is the “result of reasoned decision-making.”

The judge reviewed a checklist of factors created by the D.C. Circuit Court of Appeals in earlier cases to determine whether the deliberative process privilege should be set aside in a particular case, and found that the plaintiffs’ requests checked all the necessary boxes.  The information is essential to decide the case, it is not available elsewhere than from the government, and the court can use various procedures to ensure that information that needs to be kept confidential can be protected from general exposure through limitations on who can see it, known as protective orders.  Furthermore, the parties can apply to the court for determination of whether any particular document need not be disclosed in discovery on grounds of relevance.

The government was particularly reluctant to comply with the plaintiffs’ request for “raw data and personnel files.”  The plaintiffs sought this in order to determine whether the factual claims made in the Task Force Report are based on documented facts, especially the claims in the Report that allowing persons who have been diagnosed with gender dysphoria to serve will be harmful to military readiness because of limitations on deployment during transitioning and geographical limitations on deployment due to ongoing medical issues after transition.  Critics have pointed out that the Report seems to be based more on the kind of propaganda emanating from anti-transgender groups than on a realistic appraisal of the experience in the military since Secretary Carter lifted the former ban effective July 1, 2016.  Since transgender people in various stages of transition have been serving openly for a few years, there are medical and performance records that could be examined to provide such information, but the government has been refusing to disclose it, claiming both that it raises privacy concerns and that disclosure is unnecessary because the Mattis Plan is entitled to deference as a military policy.

The judge found that it should be possible for these records to be discovered by redacting individually identifying information and imposing limitations on who can see the information and how it can be used.  Thus, the privacy concerns raised by the government should not be an impediment.  And this information, once again, is very relevant to the question whether the statements about the service qualifications of transgender people are based on biased opinions rather than facts, thus discrediting the claim that the policy is the result of reasoned decision-making.

The Trump Administration’s strategy in this, as in many other ongoing lawsuits concerning controversial policy decisions, has been to fight against discovery at every stage and to appeal every ruling adverse to them, including trying to “jump over” the courts of appeals to get the Supreme Court to intervene on the government’s behalf, now that Trump has succeeded in fortifying the conservative majority on the Court with the additions of Justices Gorsuch and Kavanaugh.  It would not be surprising if the government seeks to appeal Judge Kollar-Kotelly’s ruling to the D.C. Circuit once again to put off (perhaps permanently) the day when they will have to give up the identities of the Mattis Task Force members and open the books on how this policy – obviously political in its conception and implementation – was conceived.

Of course, if the White House changes hands in January 2021, a Democrat president could reverse the ban in any of its forms with a quick Executive Order restoring Secretary Carter’s policy from 2016.  As the four lawsuits continue to be bogged down in discovery disputes, that may be the way this story eventually ends.  If Trump is re-elected, the story continues to drag out while the Mattis Plan stays in place.

The plaintiffs are represented by a growing army of volunteer big firm attorneys and public interest lawyers from GLAD (GLBTQ Legal Advocates & Defenders) and the National Center for Lesbian Rights.

2nd Circuit Holds That It Was Not “Clearly Established” That Sexual Orientation Discrimination in Public Employment is Actionable Under the Equal Protection Clause Prior to Obergefell and Windsor

Posted on: September 8th, 2019 by Art Leonard No Comments

In the course of deciding an appeal by some supervisory public employees of a district court’s refusal to accord them qualified immunity from a discharged employee’s claim of discrimination because of perceived sexual orientation (that took place in 2010), a panel of the U.S. Court of Appeals stated in Naumovski v. Norris, 2019 U.S. App. LEXIS 23891, 2019 WL 3770193 (Aug. 12, 2019), that it was not then “clearly established” by the Supreme Court or the 2nd Circuit prior to the rulings in U.S. v. Windsor and Obergefell v. Hodges that sexual orientation discrimination is actionable under in a 42 U.S.C. Sec. 1983 claim alleging a violation of the Equal Protection Clause.

The opinion for the panel by Circuit Judge Jose Cabranes suggests that it might be “possible today that sexual orientation discrimination in public employment may be actionable under Section 1983,” but at the time of the conduct challenged in this case “such a constitutional prohibition was not yet ‘clearly established’” so the defendants were entitled to qualified immunity from the claim.  In a footnote, Judge Cabranes acknowledged that as early as 1996, in Romer v. Evans, 517 U.S. 634, and again in 2003, in Lawrence v. Texas, 539 U.S. 558, the Supreme Court “had already begun to scrutinize laws that reflected ‘animosity’ toward gays,” but in this case the plaintiff had not alleged “such class-based animosity or desire to harm.”  He also noted that under Engquist v. Oregon Dept. of Agriculture, 553 U.S. 591 (2008), the plaintiff could not bring a “class of one” equal protection case “simply on the basis that her termination was individually arbitrary.”

On March 10, 2010, Binghamton University’s Athletic Director, James Norris, informed Elizabeth Naumovski, then assistant coach of the women’s basketball team, that she would be discharged if she did not resign.  She resigned and filed her discrimination charges with the NY State Division of Human Rights and the EEOC.  After exhausting administrative remedies against the school, she filed suit in federal court, adding discrimination claims under the Constitution against the Athletic Director and the Head Coach of the team as well as the university employer.  Norris and Scholl sought unsuccessfully to get U.S. District Judge David Hurd to dispose of the claims against them on grounds of qualified immunity, as part of his overall ruling on motions for summary judgment, and this appeal to the 2nd Circuit concerns Judge Hurd’s failure to grant their motions, which he implicitly did by denying them summary judgment.

Naumovski, a single woman in her thirties, became the subject of rumors concerning her possible relationship with a woman on the team, identified in the opinion as J.W.  Complaints from other students that Naumovski was showing favoritism to this woman came to the head coach and the then-assistant athletic director, James Norris, who, according to Judge Cabranes, “states that he understood the rumors to refer to a relationship of favoritism between a coach and a student-athlete, rather than to a sexual relationship between the two.”  Norris discussed these rumors with the Athletic Director, “who assured him that the allegations were the baseless fabrications of disgruntled former members of the Binghamton Athletics community.”  Norris was promoted to the athletic directorship on September 30, 2009.

In response to the persisting rumors during the fall term of 2009, Head Coach Nicole Scholl “imposed various restrictions on interactions between coaches and student-athletes to avoid any perception of impropriety.”  According to Naumovski’s allegations, “As a result of the increased scrutiny triggered by these restrictions, Naumovski began to suffer from depression and stress-induced weight loss.” She met with Norris to address the rumors, and claims he told her that “your problem is that you’re a single female in your mid-30s,” implying that the rumors were due to a perception that she was a lesbian.  Norris denies having made that comment, a potential material fact in the overall scheme of the litigation, in terms of the school’s potential liability.

The rumors persisted into 2010, as Norris continued to receive complaints about “favoritism” by Naumovski towards J.W. Friction developed between Naumovski and Head Coach Scholl, who felt that “Naumovski was trying to undermine her leadership of the team.”  Wrote Cabranes, “Naumovski does not deny tension between herself and Scholl; rather, she claims that any such tension ceased after a February 9, 2010 meeting with Scholl.  Naumovski further claims that Scholl and Norris never expressed any additional concerns about her coaching performance after that time.”  However, during a phone call on February 21, Scholl and Norris agreed that Naumovski’s employment should be terminated at the end of the basketball season in March. “The decision was purportedly based on Naumovski’s demonstrated favoritism toward certain student-athletes and the disruptive impact of her workplace conflicts with Scholl,” writes Cabrances, relating the defendants’ claims.  Meanwhile, Norris continued to receive student complaints and things came to a head when J.W.’s family received “an anonymous, vulgar letter accusing her of ‘screwing’ Naumovski,” which J.W. told Naumovksi about, and which led J.W.’s mother to call Norris; it is disputed whether the letter was mentioned in that phone call.  However, a week after that call, Norris informed Naumovski that she was being fired for performance reasons, but she could resign to forestall being fired, which she did.

Naumovski’s suit alleges discrimination based on her sex, perceived sexual orientation, and national origin (Canadian), in violation of Title VII of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, the Equal Protection Clause and the First Amendment (42 USC 1983), as well as the NY Constitution and NY Human Rights Law.  Defendants moved for summary judgment after discovery.  “The motion remained pending for several years,” write Cabranes, not being decided until April 17, 2018, when District Judge Hurd granted summary judgment to Binghamton University and the State University of New York on all constitutional claims but allowed statutory claims to proceed to trial. (Perhaps Judge Hurd was waiting to rule on the motions for a final resolution by the Circuit of whether sexual orientation claims are actionable under Title VII, which emerged with the Zarda v. Altitude Express en banc ruling in February 2018.) As to the individual defendants, Scholl and Norris, Hurd dismissed all claims except for Naumovski’s sex-based disparate treatment and hostile work environment claims under 42 USC 1983 (Equal Protection), failing to address the issue of their qualified immunity from constitutional claims even though they sought to invoke immunity in their summary judgment motion.  Judge Hurd subsequently denied a motion by Norris and Scholl for reconsideration on the immunity argument as untimely under local rules, asserting that it did not raise any new issues, and they appealed to the 2nd Circuit.

Judge Cabranes devoted considerable space in his opinion to explaining the different proof requirements on the statutory claims and the constitutional claims.  In particular, he noted, under Title VII, the plaintiff can win by showing that her sex or perceived sexual orientation was a “motivating factor” for discrimination, but on the constitutional equal protection claim, her burden would be to show that it was a “but-for” factor.  He also devoted a portion of the opinion to itemizing the various other ways in which the statutory and constitutional claims receive different treatment, finding that the district court seems to have conflated the two separate modes of analysis in its decision.  Furthermore, he pointed out that the statutory claims under employment discrimination law run only against the institutional employer, not against individuals, while the constitutional claims could be asserted against individuals who are “state actors,” but who enjoy qualified immunity from personal liability unless it is “clearly established” by appellate precedent that the discrimination with which they are charged is, if proven, unconstitutional.

Turning to the subject of the appeal, Judge Hurd’s implicit denial (or failure to recognize) qualified immunity from the constitutional claims for Norris and Scholl, Cabranes noted that the 2nd Circuit’s review of the district court’s “implicit” rejection of the qualified immunity claims “is complicated by several factors.  First, the District Court never addressed the claims of qualified immunity in its Memorandum-Decision and Order; it is therefore impossible to review its specific reasoning in denying relief on this ground.  Second, while both the Complaint and the District Court’s Memorandum-Decision and Order conclude that Defendants’ alleged conduct constitutes sex discrimination (either through disparate treatment or subjection to a hostile environment), neither explains precisely how Defendants’ conduct can be so construed.  Third, the District Court opinion conflates its analysis of Naumovski’s Title VII and Sec. 1983 claims, rendering our task of reviewing only the Sec. 1983 claims more difficult.”  Attempting to “reconstruct the logic” of the District Court’s denial of immunity to Scholl and Norris on the constitutional claims, the court concluded that “no theory can sustain the District Court’s implicit denial of Defendant’s qualified immunity.”

First addressing the sex discrimination claim, the court found that there was a lack of evidentiary allegations to support the claim, apart from Naumovski’s allegation about Norris’s remark concerning her status as a single woman in her 30s, which the court concluded did not “constitute sufficient evidence to make out a case of employment discrimination,” characterizing it as “the sort of ‘stray remark’ that is insufficient to support an inference of discriminatory intent.”  While Judge Hurd referred to “other indicia” of discrimination intent, the appeals court was not convinced:  “The only ‘other indicia,’ however, is evidence suggesting that Scholl and Norris interpreted the rumors as alleging a sexual relationship between Naumovski and J.W., rather than mere favoritism from one to the other.  The invocation of such evidence is unavailing.  Even if we assume Scholl and Norris interpreted the allegations against Naumovski as sexual in nature, that fact provides no additional support for a conclusion that Scholl’s and Norris’s own actions were based on discriminatory animus toward women in general or any subcategory of female employees in particular,” wrote Cabranes.  Thus, the conclusion that summary judgment should have been granted on the sex discrimination claim.

The court also discussed the possibility that Naumovski could succeed on a sex-stereotyping claim; i.e., “Norris and Scholl stereotyped Naumovski based on her sex (possibly in combination with other characteristics) as more likely to have engaged in a romantic or sexual relationship with J.W.  Defendants then fired Naumovski (at least in part) because of their wrongful and discriminatory belief that she engaged in sexual impropriety with a student and, subsequently, attempted to conceal that stereotyping played any role in their termination decision.”  While the court agreed that such a theory might work in some cases, “Naumovski cannot succeed on such a theory” because of the “but-for” proof requirement for a constitutional violation.  In order to prevail, “Naumovski must establish that a reasonable jury could find that Defendants would not have terminated her based on their stated reasons alone.  To be sure, there may well be cases in which misconduct findings based on sex stereotyping meet the ‘but-for’ discrimination standard,” Cabranes continued.  “Here, however, we do not think that the evidence, even construed in the light most favorable to Naumovski, satisfies that standard.”  Cabranes gives an extended explanation for this conclusion, noting in particular that “Naumovski does not materially dispute that Scholl’s personality and coaching style clashed with her own,” which on its own would be a legitimate reason to let go an assistant coach who was an at-will employee.

Turning to the perceived sexual orientation discrimination claim, Cabranes came to the issue of most direct relevance to Law Notes: whether public officials enjoy qualified immunity from constitutional liability for discriminating against their employees because of actual or perceived sexual orientation.  He pointed out that if the district court was relying on the 2nd Circuit’s 2018 Zarda decision for this proposition, “it erred for at least two reasons.”  First, Zarda was a statutory interpretation case under Title VII, not a constitutional case, thus the Circuit’s decision that discrimination “because of sex” under Title VII includes discrimination because of sexual orientation was not a ruling the sexual orientation claims should be treated the same as sex discrimination claims under the 14th Amendment.  Second, the conduct at issue in this case (2009-2010) predated Zarda by many years.  Given the 2nd Circuit’s pre-Zarda caselaw, Cabranes pointed out, at the time Naumovski was fired, “the ‘clearly established law’ … was that sexual orientation discrimination was not a subset of sex discrimination.”

“Nor could the District Court rely on freestanding constitutional principles separate from Zarda,” continued Cabranes.  “To date, neither this court nor the Supreme Court has recognized Sec. 1983 claims for sexual orientation discrimination in public employment.  Moreoever, when the conduct in this case occurred, neither of the Supreme Court’s landmark same-sex marriage cases – United States v. Windsor and Obergefell v. Hodges – had been decided.  It was, therefore, not yet clear that all state distinctions based on sexual orientation were constitutionally suspect.”  At this point, Cabranes wrote a footnote acknowledging the existence of Romer and Lawrence, but distinguishing them based on Naumovski’s factual allegations. Cabranes’ opinion does not explicitly state that a public official would not enjoy qualified immunity today from an adverse personnel decision based on sexual orientation, but he implies that after Windsor and Obergefell, “state distinctions based on sexual orientation” are “constitutionally suspect,” a point that some scholars have argued, attempting to give more teeth to Justice Kennedy’s opinions in those cases than some might see in them.  To be clear, neither of those cases explicitly states that government distinctions based on sexual orientation are to be treated the same as sex discrimination cases and enjoy heightened scrutiny under the 14th Amendment.  Justice Kennedy did not employ that vocabulary, and arguably placed more weight on the liberty interest in marriage in those cases.

The court also found that Norris and Scholl would clearly enjoyed qualified immunity from a claim that their decision relied on biased student claims against Naumovski, and also that a constitutionally-based hostile environment claim based on sex or perceived sexual orientation in a public employment context was not clearly actionable under 42 USC 1983, as the precedential basis for such claims has been developed thus far only under Title VII.

Summarizing the Court of Appeals holding, Cabranes wrote that Section 1983 claims for discrimination in employment require plaintiffs to establish that the defendants’ discriminatory intent was a “but-for” cause of the adverse employment action, that because of the intent requirements under the Equal Protection clause, a Section 1983 claim for employment discrimination “cannot be based on a respondeat superior or ‘cat’s paw’ theory to establish a defendant’s liability (thus ruling out liability for Scholl and Norris based on complaints by discriminatory students), and defendants were entitled to qualified immunity because, “even when interpreted in the light most favorable to Naumovski, the record cannot support the conclusion that they violated her ‘clearly established’ constitutional rights.”

Naumovski is represented by A. J. Bosman of Rome, N.Y.  Judge Cabranes was appointed by President Bill Clinton.  The other two judges on the 2nd Circuit panel were Ralph Winter (Reagan) and Renee Raggi (George W. Bush).

Second Round of Briefing in LGBT Title VII Cases Before the Supreme Court Completed During August

Posted on: September 7th, 2019 by Art Leonard No Comments

On October 8, the second day of hearings in the Supreme Court’s October 2019 Term, the Court will hear arguments in Bostock v. Clayton County, Georgia, Case No. 17-1618, and Altitude Express, Inc. v. Zarda, Case No. 17-1623, appeals from the 11th and 2nd Circuits on the question whether sexual orientation discrimination claims are actionable as sex discrimination under Title VII of the Civil Rights Act of 1964, and in R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission and Aimee Stephens, Case No. 18-107, an appeal from the 6th Circuit on the question whether gender identity discrimination claims are actionable as sex discrimination under Title VII.  The Court consolidated the two sexual orientation discrimination cases, in which the plaintiff-employee is appealing in Bostock and the defendant-employer is appealing in Altitude Express, for a single argument of one hour.  The argument in Harris Funeral Homes, in which the employer is appealing, will be argued next.  Transcripts of the arguments will be posted on the Supreme Court’s website shortly after each argument has concluded (usually within an hour or two), and links to audio recordings of the arguments will be made available on the Court’s website later in the week.

Harris Funeral Homes presents an unusual situation; the victorious party in the 6th Circuit Court of Appeals, the Equal Employment Opportunity Commission (EEOC), is represented in the Supreme Court by the Solicitor General, who, reflecting the change of administration since the original complaint in this case was filed by the EEOC, is now joining with the employer to ask the Court to reverse the 6th Circuit.  The only party defending the 6th Circuit’s decision is the charging party in the EEOC proceeding, transgender funeral director Aimee Stephens, who intervened as a co-appellant in the 6th Circuit, is named as a Respondent in Harris Funeral Homes’ cert. petition, and is represented by the American Civil Liberties Union. Harris Funeral Homes is represented by Alliance Defending Freedom (ADF), the conservative religious litigation group that is a frequent litigant opposing LGBT rights in the courts.

For purposes of briefing, the Court decided to treat all the employee-plaintiffs in the three cases as if they were Petitioners (although only Bostock is a Petitioner in the Supreme Court), and the three employer-defendants as if they were Respondents (even though two of them are actually Petitioners).  Thus, the first round of briefing, which was concluded early in July, consisted of the main briefs for Gerald Bostock, the Estate of Donald Zarda, and Aimee Stephens, and the amicus briefs (more than 40) filed in support of their claims that Title VII does extend to sexual orientation and gender identity discrimination claims.  The second round of briefing, which concluded during August, consisted of the briefs for the three employers – Clayton County, Georgia; Altitude Express; and Harris Funeral Homes; and the EEOC, which is technically a respondent even though the government, as such, is now siding with the Petitioner.

Interestingly, despite earnest efforts by the Solicitor General’s Office, the EEOC’s General Counsel, who would ordinarily be a signatory on the brief purporting to represent their agency, did not join in the submission of the government’s brief, since as of the date of filing the EEOC had not disavowed its position that gender identity discrimination claims are covered by Title VII.  Indeed, the amicus brief filed by the Solicitor General in the sexual orientation cases on behalf of the employer also lacked the EEOC’s signature, since the agency that enforces Title VII (and whose interpretation of the statute is entitled to judicial deference, under existing precedents), has not disavowed its position (argued as an agency amicus in the 2nd Circuit) that Title VII covers sexual orientation claims.  Quite a tangle for the Supreme Court to confront. During oral argument of Zarda v. Altitude Express in the 2nd Circuit, the en banc bench reflected some puzzlement and bemusement about being confronted with a lawyer from the S.G.’s office and a lawyer from the EEOC arguing against each other.

Simultaneously with the filing of the government’s brief, the Solicitor General filed a request that argument time be divided evenly (15 minutes each) between the Solicitor General’s office and ADF, counsel for Harris Funeral Homes.

Law Notes gave an overview of the first round of filings in our August 2019 issue.  Herewith is a brief summary of the second round of filings.

Altitude Express’s brief was signed by Saul D. Zabell, Counsel of Record who has represented the company throughout this litigation, and Ryan T. Biesenbach of Zabell & Collotta, P.C., a Bohemia, N.Y., law firm.  It predictably argues that the meaning of Title VII must be its “original public meaning” – the meaning that members of the public would attribute to the statutory language when it was enacted by Congress in 1964.  The brief claims that the Supreme Court has never interpreted Title VII in a manner that “conflicts” with “the original public meaning of ‘sex’.”  It also describes as “wrong” the various legal theories offered by Bostock for construing “sex” to include “gender identity.”  It argues that subsequent legislative developments – the repeated introduction of bills to amend federal anti-discrimination law to add “sexual orientation” that have never achieved enactment, as well as the enactment of some other statutes that use ‘sexual orientation’ such as the Hate Crimes Law – show Congress’s understanding that the term must be used to address such discrimination, noting also that after the EEOC and several lower federal courts had rejected sexual orientation discrimination claims in the early period of Title VII’s history, Congress passed a package of amendments to Title VII in 1991 but did not overrule any of those rulings legislatively.  The brief also rejects certain other arguments that some lower court judges had accepted as reasons for extending Title VII to cover sexual orientation claims.  None of these arguments was new or unanticipated, and they were all rejected in one way or another not only in the 2nd Circuit (en banc) but also in the 7th Circuit (en banc) in 2017 in Hively v. Ivy Tech Community College, a case where the employer decided not to seek Supreme Court review.

Clayton County’s brief (Bostock), signed by Counsel of Record Jack R. Hancock and other attorneys from the Forest Park, Georgia, law firm of Freeman Mathis & Gary LLP, carries the same argument headings as Altitude Express’s brief.  Indeed, they appear to be a joint product, making identical arguments.

The main brief that drew most of the press commentary when it was filed, of course, was the Solicitor General’s brief, on which S.G. Noel J. Francisco is Counsel of Record.  The other signatories are attorneys in the Solicitor General’s office and main Justice Department.  As noted above, and deemed newsworthy, no attorneys from the EEOC signed this brief which is presented as the brief of the Federal Respondent (which, technically, is the EEOC).   The brief urges the Court to adopt a narrow interpretation of key Title VII Supreme Court precedents on which the EEOC had relied in the 6th Circuit, Price Waterhouse v. Hopkins and Oncale v. Sundowner Offshore Services, contending that the 6th Circuit had extended them beyond their holdings to reach the conclusion that allowing gender identity discrimination claims is consistent with Supreme Court precedent.  Most of the arguments in the brief are variants of one or more of the arguments in the Altitude Express and Clayton County briefs, effectively countering the EEOC’s justifications for applying Title VII to gender identity claims in Macy v. Holder, EEOC Doc. 0120120821, 2012 WL 1435995 (2012).  Even though the EEOC has not overruled Macy, it is anticipated that it may do so in due course as the new majority resulting from Trump’s appointments to the Commission either rules on a federal sector gender identity discrimination case, proposes a new regulatory interpretation, or takes a position in litigation in the lower federal courts embracing a change of position.  The Commission could just instruct its regional offices to dismiss gender identity claims on jurisdictional grounds, similar to the action of the U.S. Department of Education which now refuses to process gender identity discrimination claims under Title IX of the Education Amendments of 1972.

The brief on behalf of Harris Funeral Homes, submitted by Alliance Defending Freedom, attracted comparatively little attention, with the Solicitor General being the “elephant in the room.”  Mainstream press coverage clearly sees Harris as part of the Trump Administration’s overall opposition to transgender rights as part of its systemic attempt to reverse the civil rights positions taken by the Obama Administration. Clearly, the president feels that he was elected to overturn everything that the Obama Administration did, if possible.  This was certainly reflected in his transgender military service ban and former Attorney General Jeff Sessions’ October 2017 memorandum disavowing the Obama Administration’s positions on both sexual orientation and gender identity discrimination.

Beginning on August 16 and extending through August 23, the Supreme Court clerk added to the docket forty amicus briefs supporting Harris Funeral Homes’ (and the Solicitor General’s) position that Title VII does not extend to gender identity discrimination claims.  Some were from the “usual suspects” familiar to anybody who had scanned the amicus lists in Obergefell and Windsor, the cases concerning marriage equality.  They include states whose anti-discrimination laws do not cover gender identity, Republican members of Congress, companies that don’t want to be forced to employ transgender people, individual legal scholars, polemicists, think tanks and policy institutes, and, of course, religious entities that argue that requiring employers to accommodate transgender people excessively burdens their religious freedom.  (In Harris, the owner of the funeral homes stated his religious beliefs as a justification for his refusal to continue employing the plaintiff after she wrote to him about her gender transition. As a result of this, the district court ruled in favor of Harris Funeral Homes in reliance on the Religious Freedom Restoration Act, employing an interpretation subsequently rejected by the 6th Circuit.  Surprisingly, in light of its religious freedom orientation, ADF did not include in its cert petition a question about the application of the RFRA to this case, so technically the religious arguments made by many of the amici are not pertinent to the questions on which cert was granted.

Particular press attention was drawn to briefs of some feminist groups who are particularly perturbed about any legal recognition of transgender women, making arguments that fall far outside the mainstream of the professional medical and mental health communities about the nature of human sexuality, contending that transgender women are men in drag who should not be given admission to women-only spaces and should not be accorded the treatment under anti-discrimination law that has been accorded to women.  Vox.com devoted a lengthy article to explaining the opposition of some feminist groups to transgender rights.  See Katelyn Burns, The Rise of Anti-Trans ‘Radical’ Feminists, Explained” (posted September 5, 2019).

Also during August, 24 amicus briefs (including one from the Solicitor General, as the federal government is not a party in the sexual orientation cases) were filed in support of the employers in the sexual orientation discrimination cases, Bostock and Altitude Express.  Of course, the EEOC’s legal staff is not represented among the signers of the Solicitor General’s amicus brief, again a newsworthy absence denoting that at least as of the time when briefs were due, the agency had not abandoned its position in Baldwin v. Foxx, EEOC No. 0120133080, 2015 WL 4397641 (2015), that Title VII covers sexual orientation discrimination claims.  Many of these amicus briefs were noted as addressing all three pending Title VII cases and thus were also filed and counted among the Harris Funeral Home amicus briefs.  When it announced the filing schedule, the Court also directed that amicus briefs for the Altitude Express case were to be filed on the Bostock docket. The same mix of amici that one finds on the Harris Funeral Homes docket generally show up on the Bostock list, minus those groups who have a specific focus on opposing transgender rights.  The arguments in the amicus briefs are similar as well, although, of course, the argument that gender is identified at birth is permanent and not changeable is absent here, while it predominates in many of the amicus briefs filed in Harris Funeral Homes.

Several of these amicus briefs emanate from groups that may have been formed for the specific purpose of filing amicus briefs in these cases.  All of the docketed amicus briefs can be examined on the Supreme Court’s website, where they are available to be downloaded in pdf format.

The deadline for the third round of briefing set by the Court is September 16, when Reply Briefs can be filed, responding to the briefs that were filed in August.  Reply briefs, if any, will be reported in the October issue of Law Notes.

8th Circuit Revives Videographer’s 1st Amendment Claim Against Having to Make Same-Sex Wedding Videos

Posted on: August 29th, 2019 by Art Leonard No Comments

A three-judge panel of the U.S. Court of Appeals for the 8th Circuit ruled by a vote of 2-1 on August 23 that a commercial videographer could assert a 1st Amendment claim that it was privileged to refuse to make wedding videos for same-sex couples, as an exemption from compliance with Minnesota’s Human Rights Act, which expressly forbids public accommodations from discrimination because of a customer’s sexual orientation.  Telescope Media Group v. Lucero, 2019 U.S. App. LEXIS 25320, 2019 WL 3979621.  The court reversed a decision by U.S. District Judge John R. Tunheim, which had dismissed the videographer’s suit seeking a declaratory judgment and injunctive relief against Minnesota’s Department of Human Rights.  See Telescope Media Group v. Lindsey, 271 F. Supp. 3d 1090 (D. Minn. 2017).

Circuit Judge David Stras, an appointee of President Donald Trump, wrote for the majority, which included Circuit Judge Bobby Shepard, an appointee of President George W. Bush.  The dissent was by Circuit Judge Jane Kelly, who was appointed by President Barack Obama, and is the only Democratic appointee now sitting on the 8th Circuit in either an active or senior capacity.  District Judge Tunheim was appointed by President Bill Clinton.

Carl and Angel Larsen, who make commercial videos under the corporate name of Telescope Media Group, decided they wanted to expand their business into wedding videos, but because of their religious beliefs, they did not want to get into this line of work if they would be required to make videos for same-sex weddings.  Anticipating that a refusal to make such videos would bring them into conflict with Minnesota’s Human Rights Law, the filed an action in federal district court seeking a ruling that they had a 1st Amendment right to refuse such business.  They argued that making wedding videos is an expressive activity protected by the Free Speech Clause, and that, although the Supreme Court has ruled that people are not excused from complying with neutral state laws of general application based on their religious beliefs, there was an argument that when a religious free exercise claim is intermingled with a claim based on another constitutional right (in this instance, free speech), the state may be required to accommodate the person claiming constitutional protection against enforcement of the state law.

Judge Tunheim rejected their constitutional arguments, dismissing their lawsuit, and they appealed to the 8th Circuit.  Their case presents a parallel to one of the earliest appellate rulings rejecting a constitutional exemption from complying with a state public accommodations law on similar facts: Elane Photography, LLC v. Willock, 309 P. 3d 53 (N.M. 2013), cert. denied, 134 S. Ct. 1787 (2014).  In that case, the New Mexico Supreme Court ruled that a commercial wedding photographer who refused to make a photo album for a lesbian couple celebrating their commitment ceremony did not enjoy a 1st Amendment free speech or free exercise exemption from a state law banning sexual orientation discrimination.  That court also rejected the photographer’s claim under New Mexico’s Religious Freedom Restoration Act, finding that complying with the state’s anti-discrimination law would not substantially burden the photographer’s freedom of religion. The U.S. Supreme Court denied Elane Photography’s petition to review the New Mexico court’s ruling.

Judge Stras’s opinion based its conclusion on a conflation of the Larsens’ business with the film studies that make movies for public exhibition.  During oral argument, it was reported, the Larsen’s activities in making a video were likened to the work of prominent film producers/directors like Steven Spielberg.  This was a specious comparison, not because Spielberg is a great filmmaker, but because the Larsen’s do not produce feature films or documentaries aimed at a public market, in which the content of the film is the speech of the filmmaker.  Rather, they make films for hire, in order to communicate the message of the customer who hires them.

Stras wrote: “The Larsens . . . use their ‘unique skills to identify and tell compelling stories through video,’ including commercials, short films and live-event productions.  They exercise creative control over the videos they produce and make ‘editorial judgments’ about ‘what events to take on, what video content to use, what audio content to use, what text to use . . ., the order in which to present content, whether to use voiceovers.”  In other words, they exercise their professional judgment to make the films ordered by their customers, but the customers who are paying to have the films made ultimately determine what the message of the film will be.  The Larsens’ role is to translate that message into an effect filmic presentation.

In describing their contemplated move into making wedding videos, they want these videos to “capture the background stories of the couples’ love leading to commitment, the [couples’] joy . . . the sacredness of their sacrificial vows at the altar, and even the following chapters of the couples’ lives.”

“The Larsens believe that the videos, which they intend to post and share online, will allow them to reach ‘a broader audience to achieve maximum cultural impact’ and ‘affect the cultural narrative regarding marriage.’”  Presumably, they hoped to tap into the burgeoning on-line phenomenon of shared wedding videos, which seem to have a considerable audience.  But their representation by Alliance Defending Freedom suggests an ulterior motive, that the Larsens have volunteered (or were recruited) to be plaintiffs as part of ADF’s strategy to get a case to the Supreme Court in hopes of broadening the rights of religious business owners to avoid complying with anti-discrimination laws, and perhaps even getting the Court to overrule its precedents denying religious free exercise exemptions from anti-discrimination laws, while at the same time creating a constitutional wedge issue for businesses whose goods or services might be characterized as “expressive.”

Even though the Larsens do not presently make wedding videos, and they do not claim that they have ever been approached to make a video of a same-sex wedding or threatened with prosecution for refusing to do so, the court first determined that they have standing to seek their declaratory judgment, because when the proposition was presented to officials of the Minnesota Department of Human Rights, they made clear that a refusal to provide videography services to same-sex couples would be considered a violation of the state’s anti-discrimination law.  Thus, the Larsens claimed to the satisfaction of the 8th Circuit panel that they faced a credible threat of prosecution and had standing to bring the case.

Turning to the merits, Stras wrote, “The Larsens’ videos are a form of speech that is entitled to First Amendment protection. . .  although the Larsens do not plan to make feature films, the videos they do wish to produce will convey a message designed to ‘affect public attitudes and behavior.’  According to their complaint, they will tell ‘healthy stories of sacrificial love and commitment between a man and a woman,’ depicting marriage as a divinely ordained covenant, and oppose the ‘current cultural narratives about marriage with which they disagree.’ By design, they will serve as a ‘medium for the communication of ideas’ about marriage.  And like the creators of other types of films, such as full-length documentaries, the Larsens will exercise substantial ‘editorial control and judgment.’”  He concluded, “The videos themselves are, in a word, speech.”

Stras insisted that applying the Minnesota Human Rights Act to the Larsens’ business “is at odds with the ‘cardinal constitutional command’ against compelled speech.  The Larsens to not want to make videos celebrating same-sex marriage, which they find objectionable.  Instead, they wish to actively promote opposite-sex weddings through their videos, which at a minimum will convey a different message than the videos the MHRA would require them to make.”

Stras insisted that this case fell into line with various U.S. Supreme Court precedents blocking the government from compelling a private actor to express a message they don’t want to express, citing, among other cases, Boy Scouts of America v. Dale, where the Court recognized the Scouts’ 1st Amendment right to ban gay men from serving as volunteer leaders of Scout troops.  In that case, the Court said that requiring the Scouts to let out gay James Dale be an assistant scoutmaster would be compelling them to communicate a message of approval for homosexuality.  The ruling in that case was by a vote of 5-4, overruling a 4-3 decision by the New Jersey Supreme Court.  Stras also placed great weight on the Supreme Court’s ruling in Hurley v. GLIB, holding that Massachusetts could not compel the Catholic veterans association that ran Boston’s St. Patrick’s Day Parade to include a gay Irish organization marching with a banner proclaiming their identity, because that would be forcing a message on to the parade that the organizers did not want to communicate.

The consequence of Stras’s analysis was not only that the Larsens can assert their free speech claim, but that the court must subject the application of the MHRA to strict scrutiny, placing the burden on the state to prove that requiring the Larsens to made same-sex wedding videos is necessary to fulfill a compelling government interest.

The court also accepted the Larsens’ argument that they should be allowed to assert a free exercise of religion claim “because it is intertwined with their free speech claim,” constituting a so-called “hybrid rights claim.”  The Supreme Court has mentioned that possibility in some cases, although it remains more theoretical than precedential at this point because most legal analysts have considered these mentions as not part of the holdings in the opinions where they appear.  But Stras pointed out two 8th Circuit decisions where that court has used the hybrid rights theory, making it fair game for litigation within the circuit.  The Supreme Court had articulated it as a possible exception to the general rule in Employment Discrimination v. Smith, speculating that had the plaintiff been able to claim a violation of some other constitutional right in addition to free exercise of religion, he might have a valid claim.  But Stras insisted that the Court’s comments actually related to the holdings in some prior cases.  However, he noted, “it is not at all clear that the hybrid-rights doctrine will make any real difference in the end” because the Court was already holding that the Larsens’ free speech claim “requires the application of strict scrutiny.”

The court did reject the Larsens’ alternative theories of freedom of association and equal protection. The former claim, if recognized, would render anti-discrimination laws virtually unenforceable, and the latter defeated by the general application of the MHRA, which did not on its face single out any particular group for disfavored treatment.  The court also rejected the Larsens’ argument that the law was unconstitutionally vague, or imposed unconstitutional conditions upon the operation of a business in the state.

The court sent the case back to the district with directions to “consider in the first instance whether the Larsens are entitled to a preliminary injunction, keeping in mind the principle that ‘when a plaintiff has shown a likely violation of his or her First Amendment rights, the other requirements for obtaining a preliminary injunction are generally deemed to have been satisfied.”

Judge Kelly’s dissent was several pages longer than the majority opinion.  “No court has ever afforded ‘affirmative constitutional protections’ to private discrimination,” she wrote.  “Indeed, caselaw has long recognized that generally applicable laws like Minnesota’s may limit the First Amendment rights of an individual in his capacity as the owner of a business serving the public.”  On this point, she cited Justice Anthony Kennedy’s opinion for the Court in Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), in which the reluctant baker had refused to make a wedding cake for a same-sex couple.  In that opinion, Kennedy acknowledged that religious and philosophical objects to same-sex marriage enjoy First Amendment protection, but “such objections do not allow business owners . . . to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.”  Judge Kelley observed, “That well-established principle should have easily disposed of this case.”

She contested Judge Stras’s attempt to “recharacterize Minnesota’s law as a content-based regulation of speech.”  She argued that the law does not compel the Larsens to communicate any particular message about marriage.  “What they cannot do,” she wrote, “is to operate a public accommodation that serves customers of one sexual orientation but not others. And make no mistake,” she continued, “that is what today’s decision affords them license to do.”  She asserted that the conduct in which the Larsens wish to engage if they expand into the wedding video business would involve denying services based on the sexual orientation of customers.  “That the service the Larsens want to make available to the public is expressive does not transform Minnesota’s law into a content-based regulation, nor should it empower the Larsens to discriminate against prospective customers based on sexual orientation.”  The rest of her opinion takes much inspiration from Justice Ruth Bader Ginsburg’s dissent from the Court’s holding in Masterpiece.

Pointing to an earlier ruling, she wrote, “The Supreme Court has already health that the MHRA is constitutional, in the process rejecting many of the same arguments that the court adopts today.  Just recently, it reaffirmed that, although ‘religious and philosophical objections [to same-sex marriage] are protected, it is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.’ The Supreme Court is free to revise or overturn its precedents,” she continued.  “We are not.  Rather than disturb bedrock principles of law, I would affirm the district court’s order in full.”

The state can seek review of this decision by the full bench of the 8th Circuit, but that circuit has an overwhelmingly Republican/conservative tilt at present.  Of the eleven active judges, only one, Judge Kelly, was appointed by a Democratic president.  Trump has managed to place four judges on the court, where all but one of the other judges was appointed by George W. Bush, with the senior-most of the active judges having been appointed by the first President Bush.  Clinton’s appointees have all died or retired.  Perhaps the state should apply directly to the Supreme Court for review, but who is to say that Justice Kennedy’s comments, relied upon by Judge Kelly, would find majority support on the Court now that Neil Gorsuch has replaced Kennedy?

9th Circuit Panel Orders Gender Confirmation Surgery for Transgender Inmate in Idaho

Posted on: August 28th, 2019 by Art Leonard No Comments

A three-judge panel of the San Francisco-based U.S. Court of Appeals for the 9th Circuit ruled on August 23 that the Idaho Department of Corrections violated the 8th Amendment rights of Adree Edmo, a transgender inmate, when it denied her gender confirmation surgery.  The court’s opinion, issued collectively by the three judges as “per curiam,” provides such an extensive discussion of the medical and legal issues that it could serve as a textbook for other courts.

The ruling is a particularly big deal because it is the first such wide-ranging appellate ruling in the nation’s largest circuit by population, as the 9th Circuit includes California, Oregon, Washington, Alaska, Hawaii, Arizona, Nevada, Idaho and Montana.  Other circuit courts are divided over whether transgender inmates may have a right to complete their transition surgically while incarcerated.

The three judges on the panel, Circuit Judges M. Margaret McKeown and Ronald M. Gould, and U.S. District Judge Robert S. Lasnik of the Western District of Washington, were all appointed to the court in the late 1990s by President Bill Clinton.

The court’s ruling affirmed a May 2019 order by U.S. District Judge B. Lynn Winmill, also a Clinton appointee, who issued the ruling after an extensive trial process with several expert witnesses and numerous amicus briefs.

The plaintiff, Adree Edmo, was designated male at birth but has viewed herself as female since age 5 or 6, according to the hearing record.  Edmo pled guilty in 2012 to a charge of sexual abuse of a 15-year-old boy at a house party.  At that time, Edmo was 21.  It was about that time that she resolved an internal struggle about gender identity and began living as a woman.  By the time of the trial court’s evidentiary hearing in this case, Edmo was 30, and due to be released from prison in 2021.

Edmo first learned the term “gender dysphoria” and what was involved in gender transition around the time of her incarceration.  Shortly after coming into the custody of the Idaho Department of Corrections, she was diagnosed with “gender identity disorder,” the term that was used in the prior edition of the Diagnostic and Statistical Manual (DSM), the “Bible” for the psychiatric profession.  The latest edition of DSM changes the terminology to “gender dysphoria,” as being a more accurate characterization in the consensus view of the profession.  The diagnosing doctor was Dr. Scott Eliason, employed by Corizon, Inc., the medical contractor for the Idaho prison system.  A psychologist employed by Corizon, Dr. Claudia Lake, confirmed the diagnosis.

Edmo has changed her legal name and obtained a new birth certificate designating her as “female” to affirm her gender identity.  She has consistently tried to present as female throughout her incarceration, even though this has resulted in disciplinary measures as she continues to be housed in a male prison.  There is no dispute among the parties to this case, which include Corizon and the  Idaho Corrections Department, that Edmo suffers from gender dysphoria, which causes her to feel “depressed,” “disgusting,” “tormented” and “hopeless,” and this has moved her twice to attempt self-castration.

Although hormone therapy has helped to ameliorate the effects of her gender dysphoria, it has not completely alleviated the condition, and much of her distress focuses on her male genitalia, the removal of which is her dedicated goal, as reflected in her castration attempts.   The expert testimony indicated that removal of the male genitalia would make it possible to reduce the level of her hormone therapy, as her body would no longer be producing the male hormone testosterone, and reduced hormone therapy would reduce side effects and be beneficial to her long-term health.

The main cause of dispute is that the Corizon doctors, under direction of the Idaho Corrections Department, have imposed standards going beyond those specified by the World Professional Association for Transgender Health (WPATH) for determining when an individual with gender dysphoria is eligible for surgery.  The state’s case here relies mainly on Dr. Eliason’s testimony and the standards he sought to impose.  Judge Winmill concluded that those standards failed in certain respects to conform to the medical consensus as represented by the WPATH standards and that, as to one of Eliason’s standards, his diagnosis fails to give adequate weight to Edmo’s self-castration attempts.

Experts testifying at the district court hearing included two doctors extremely experienced with treating gender dysphoria, both of whom are active as WPATH members, who offered testimony that convinced Winmill that gender confirmation surgery is necessary for Edmo.  Winmill issued an injunction after the hearing ordering the state to provide the surgical procedure for Edmo, but the injunction was stayed while the state appealed to the 9th Circuit on an expedited schedule.

The appellate panel rejected all of the state’s objections to Judge Winmill’s ruling.  Under the Supreme Court’s 8th Amendment jurisprudence, a prison system will be found to violate the 8th Amendment if it displays deliberate indifference to an inmate’s serious medical condition by failing to provide necessary treatment.  A large amount of judgment based on the facts of the individual case goes into determining whether the prison’s failure to provide a particular procedure to a particular inmate violates the Constitution, and some courts have upheld refusal to provide surgery when medical experts disagree about the appropriate treatment for a prisoner’s particular medical condition, finding that a disagreement among experts bars the conclusion that the prison is being deliberately indifferent to the inmate’s medical needs.  The state, citing its own experts, pushed for this conclusion, but the court identified the state’s experts as underqualified and their views as “outliers” from the professional consensus.

In backing up Judge Winmill’s conclusion, the 9th Circuit panel made clear that they were ruling based on the facts of this individual case, and not endorsing a general rule that transgender inmates are always entitled to surgery.  They found that the evidence shows that not all people who identify as transgender suffer from gender dysphoria, and that the degree of intensity of gender dysphoria can range from mild to severe.  Many transgender people do not desire surgery even though they have a gender dysphoria diagnosis, and sometimes other medical conditions cut against performing the surgery for health and safety reasons.

A major point of contention in this case is the specification in the WPATH standards that surgery should not be performed until the individual has experienced living consistent with their gender identity for at least a year.  Dr. Eliason’s interpretation of this requirement focused on living in a non-institutional setting for at least a year, considering the prison setting as “artificial” and not like the setting the inmate would encounter upon release from prison.  According to this view, the only inmates entitled to surgery would be those who had lived consistent with their gender identity for at least a year before they were incarcerated.  This would categorically rule out surgery for those who were first diagnosed with gender dysphoria after incarceration, such as Edmo, even though identified as female for many years before the crime for which she pled guilty.

The experts who testified on her behalf persuasively argued that it was possible for a transgender inmate to fulfill that requirement in prison, and pointed out that the WPATH standards state that the experiential year can take place while incarcerated.  Also, the court noted that Edmo’s persistent attempts to present as female, even in the face of hostility from corrections personnel, since 2012 would more than fulfill this requirement, since there was medical documentation that she has been presented as female since 2012.

This new ruling may set up the issue for Supreme Court review, because it sharply conflicts with a ruling earlier this year by the U.S. Court of Appeals for the 5th Circuit, Gibson v. Collier, which ruled that gender confirmation surgery is never required under 8th Amendment standards.  The Gibson ruling, in turn, relied heavily on an earlier ruling by the U.S. Court of Appeals for the 1st Circuit, which held that the Massachusetts prison system did not have to provide surgery for Michelle Kosilek, a transgender inmate who had been sentenced to life without parole upon conviction of murdering her wife while presenting as male.  Kosilek went through years of litigation just to get hormone therapy, before then litigating for years for surgery. The 1st Circuit accepted the state’s testimony that hormone therapy was sufficient in her case and that in light of the nature of her offense, there would be enormous security problems in the prison system if she were to have surgery and then be transferred to a female prison.

The 4th Circuit has also ruled that a categorical rule against providing surgery for transgender inmates is unconstitutional, but that case did not involve an actual order that a prison system provide the surgery to a particular inmate.  This new 9th Circuit ruling sharpens the split with the 5th and 1st Circuits, raising the odds that a petition to the Supreme Court might be granted.  So far, the only Supreme Court ruling on the merits in a transgender case dates back several decades, when the Court ruled in a case involving a transgender inmate who was severely assaulted in prison that prison officials might be held to violate the 8th Amendment by failing to protect transgender inmates from serious injury while incarcerated.

In the course of its ruling, the court determined that Corizon, the health care contractor for the Idaho prisons, was not liable under the 8th Amendment.  Liability was focused on the Idaho Corrections Department itself and Dr. Eliason.

The court emphasized the urgency of providing surgery to Edmo, clearly signaling that it would not be receptive to requests for delay pending further appeal by the state.  As a practical matter, if the state cannot obtain an emergency stay, the surgery will go forward unless Idaho decides to do what California did in an earlier case where the 9th Circuit had refused to stay a district court’s order pending appeal: accelerate the inmate’s parole date to avoid having to provide the surgery!  Anticipating that this kind of ruling might come from the 9th Circuit in that earlier case, California revised its rules to drop its categorical ban on providing gender confirmation surgery to inmates, and has already provided the procedure to one inmate, the first known instance in which a state has actually provided the surgery.

Edmo is represented by a team of attorneys from California and Idaho law firms as well as the National Center for Lesbian Rights.  Attorneys from a wide variety of civil rights organizations represented the various amicus parties.  The struggle to obtain this decision and opinion was a very large team effort, resulting in an array of briefs that can be usefully deployed in future litigation in other circuits.

Federal Court Says Faith-Based Women’s Shelter in Anchorage is Not Subject To Public Accommodations Law

Posted on: August 26th, 2019 by Art Leonard No Comments

Although the City of Anchorage, Alaska, has a public accommodations law that prohibits discrimination because of gender identity, a federal judge has ruled that the Downtown Hope Center, a faith-based non-profit organization that runs homeless shelters in the city, may be able to refuse to provide a place in its women’s shelter for transgender women.  The case is Downtown Soup Kitchen d/b/a Downtown Hope Center v. Municipality of Anchorage, 2019 WL 3769623 (D. Alaska, August 9, 2019).

The ruling by U.S. District Judge Sharon L. Gleason is based not on a religious exemption, but rather on the court’s suggestion that the shelter would not be considered a public accommodation under the municipal law.  The court was ruling on a motion by the shelter for a preliminary injunction against the Anchorage Equal Rights Commission, temporarily barring it from enforcing the Anchorage Municipal Code (AMC) anti-discrimination provisions against the shelter pending a final ruling on the merits of the shelter’s lawsuit.

In order to rule on the motion, the judge had to decide whether the shelter was likely to succeed on the merits of its claim  that it is not subject to the AMC anti-discrimination provisions or, if subject to them, that it would enjoy a religious exemption from compliance.

“Hope Center maintains that its religious beliefs include that a person’s sex is an immutable God-given gift,” wrote the judge, “and that it is wrong for a person to deny his or her God-given sex.” The shelter argued that requiring it to house transgender women in its women’s shelter would be against the shelter’s “religious beliefs.”  But it also insisted throughout this case that it is not subject to Anchorage’s anti-discrimination ordinance, and that proved the winning argument at this stage of the litigation.

On Friday, January 26, 2019, at about 6 pm, the police brought “Jessie Doe,” who identifies as a transgender woman, to the Hope Center.  “Doe smelled strongly of alcohol, was very agitated, was aggressive in body language, and had an open wound above one eye,” wrote Gleason.  The director of the shelter, noting Doe’s condition, recommended that she go to the hospital for care of the eye wound. Doe agreed, and the shelter paid for a taxi to take her to the hospital.  The next day, Doe returned to the shelter at about 2 pm and sought admission, but was denied under the shelter’s rule that Saturday admissions before 5:45 pm were limited to those who had stayed at the shelter Friday night.  The director later learned that Doe had started a fight at another shelter, which had banned her until July 4, 2018.

Doe filed a complaint with the Anchorage Equal Rights Commission, claiming that the shelter was a public accommodation and had actually excluded her because of her sex and gender identity in violation of the AMC.  The Commission notified the shelter of the complaint and scheduled a fact-finding conference.  The shelter director wrote back that the shelter did not consider itself to be a public accommodation, that it had not discriminated against Doe because of her gender identity, and that it “has First Amendment religious liberty and association rights to operate as it does.”

Several exchanges of correspondence ensued, and the Commission ultimately filed a complaint against Hope Center, claiming that its attorney had stated or implied in various media that transgender individuals would not be allowed to be sheltered at Hope Center, in potential violation of both the public accommodations provision and a provision banning discrimination by owners and operators of real property.  Ultimately, Hope Center filed its own lawsuit in federal court, claiming a violation of its 1st Amendment rights and reiterating its argument that it was not subject to the prohibitions in the city ordinance.  The shelter asked the court to declare that it was not subject to the ordinance.

The AMC makes it an “unlawful practice” for a “public accommodation” to deny services to somebody because of their sex or gender identity or to publish or circulate a policy denying services to people because of their sex or gender identity.  The ordinance defines a public accommodation as “any business or professional activity that is open to, accepts or solicits the patronage of, or caters or offers goods or services to the general public, subject only to the conditions and limitations established by law and applicable alike to all persons.”

The AMC also makes it an unlawful practice for the owner or operator of “real property” to refuse to sell, lease or rent, or to otherwise make unavailable, the real property to a person because of sex or gender identity, or to discriminate against a person because of sex or gender identity in a term, condition or privilege relating to the use of real property.  This provision lists specific exceptions to its coverage.  “Shelters for the homeless” are specifically listed as being exempt from the “real property” anti-discrimination provision.

Doe’s complaint filed with the Commission claimed a violation of the public accommodations provision, but did not mention the real property provision.  The Commission’s subsequent complaint invoked the real property provision as well.  Judge Gleason decided that the real property provision, and particularly its explicit exemption of homeless shelters, was relevant to the shelter’s claim that it was not subject to either provision.

Judge Gleason pointed out that she would not have to determine whether the shelter enjoys a constitutional free exercise privilege to deny access to a transgender person if she ultimately concluded that the shelter was not subject to the requirements of the anti-discrimination ordinance.

“It is clear from the structure and plain text of [the ordinance] that the drafters of the AMC intended to exempt homeless shelters from the prohibitions on conduct articulated” in the AMC section governing discrimination regarding real property.  “Furthermore,” wrote Gleason, “the Alaska Supreme Court has concluded that the purpose of that section ‘is to prohibit discrimination in the rental housing market.’  Applying the provision’s prohibitions to Hope Center’s homeless shelter would not further this purpose.  Hope Center is thus likely to succeed as to its contention that [the real property provision] does not apply to Hope Center’s homeless shelter.”

Judge Gleason observed that unlike the real property provision, the public accommodations provision “does not include language that expressly exempts homeless shelters from its prohibitions.  Nevertheless, Alaska’s rules of statutory interpretation and the structure of the Anchorage Municipal Code as a whole suggest that homeless shelters are not public accommodations as defined in [the public accommodations provision.]  For if the term ‘public accommodation’ . . . is read to apply to homeless shelters, then the exemption for homeless shelters contained in [the real property] provision would have no effect.  Pursuant to Alaska Supreme Court precedent, this court must ‘interpret each part or section of a statute [or municipal code] with every other part or section, so as to create a harmonious whole.’  To give effect to the exemption for homeless shelters contained in [the real property provision], the Court concludes that Hope Center is not an ‘owner or operation of a public accommodation’ within the meaning of [the public accommodation provision].”

Having reached this conclusion, Gleason opined that the shelter was not subject to the prohibition against discrimination in the AMC.

Her conclusion does not really make sense.  If the purpose of the real property provision is to “prohibit discrimination in the rental housing market,” it makes total sense for the AMC to exclude homeless shelters from coverage under the real property provision, since they are not part of the “rental housing market.”  That says nothing about whether they should be covered by the public accommodations provision.  The point is that homeless shelters do not provide rental housing, they provide a service of temporary shelter to people who cannot afford housing.  So it makes total sense to treat them as public accommodations, as they provide a service to the public.  The commission should seek to appeal this ruling.

However, having concluded that the AMC does not apply to the shelter, Judge Gleason went on to accept the shelter’s argument that failing to issue a preliminary injunction would result in irreparable harm to the shelter, noting that courts have found that a violation of constitutionally protected religious freedom rights constitutes an irreparable injury.  The court characterized a preliminary injunction in this case as ‘reserving the status quo’ pending a final decision on the merits of the case.

Also, as a result of her conclusion that the exemption from the real property provision required an exemption from the public accommodations provision, the judge concluded that “the issuance of a preliminary injunction in this instance would not unduly limit Anchorage’s ability” to enforce its anti-discrimination ordinance, “as the actions Hope Center seeks to enjoin appear to be beyond the scope of the relevant provisions.”  She also concluded that because, in her opinion, the AMC provisions do not apply to the Center, a preliminary injunction against enforcing anti-discrimination requirements against the shelter “will not significantly curtail the public interest.”  On the other hand, prosecution of the anti-discrimination complaints by the Commission might, according to the shelter’s allegations, adversely affect its ability to provide shelter to homeless women.

The court’s conclusion is subject to sharp criticism.  The exemption language in the real property provision shows that the legislators knew how to exempt a particular kind of entity from coverage of an anti-discrimination provision, so the fact that they did not include such a specific exemption in the public accommodations provision should reflect an intention to treat homeless shelters the same as other entities that provide services to the public.  And, the reasons for exempting homeless shelters from the real property provisions do not support exempting them from the public accommodations provisions.

The Commission had also argued in opposition to the preliminary injunction that the court should abstain from issuing any orders in this case rather than interfere with the ongoing process of the Commission in handling the complaints that have been filed, but Judge Gleason refused to abstain, even though generally federal courts will abstain from interfering with ongoing state administrative proceedings before they have reached a conclusion, unless the operation of the state proceeding would impair the exercise of a federally protected right, and even though the Commission said that it would not take any action against the shelter as long as this lawsuit had not been finally decided by the federal court.

The federal court’s interpretation of state and local laws is not binding on the state courts.  The Anchorage Commission can seek a review of this holding from the 9th Circuit Court of Appeals, which has jurisdiction over the federal courts in Alaska.  That court might consider it appropriate to refer the question of interpretation of the AMC to the Alaska Supreme Court.

Judge Gleason was nominated by President Barack Obama and took the bench in 2012.  She is the first woman to serve as a federal district judge in Alaska.