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Trump Alumni Group Engineers Challenge to Bostock Application Outside of Title VII

Posted on: May 2nd, 2022 by Art Leonard No Comments

Shortly after the end of Donald Trump’s Administration, a group of his top officials formed a new organization intended to challenge attempts by the Biden Administration to change Trump’s policies.  With Stephen Miller, White House counselor and the evil genius behind many of Trump’s policies, as its president and board chair, America First Legal Foundation boasts as board members former Chief of Staff Mark Meadows, former Acting Attorney General Matthew Whitaker, and former Director of the Office of Management and Budget Russ Vought.  Co-founder with Miller is Gene Hamilton, former senior counselor to the Secretary of Homeland Security and former counselor to the Attorneys General in the Trump Administration.  Not surprisingly, finding ways to limit the impact of the Supreme Court’s ruling in Bostock v. Clayton County, 140 S. Ct. 1731 (2020), is high on their list of priorities.  In Bostock, the Supreme Court held that sexual orientation and gender identity discrimination claims came within the sphere of prohibited sex discrimination under Title VII of the Civil Rights Act of 1964.  Justice Neil Gorsuch, writing for a 6-3 majority, purported to use “textual” analysis to reach this result based on the “original meaning” of the language used by Congress in 1964, which, according to Gorsuch, would be “biological sex.”

America First’s litigation vehicle for this project is Neese v. Becerra, 2022 WL 1265925, 2022 U.S. Dist. LEXIS 75847 (N.D. Tex., April 26, 2022).  U.S. District Judge Matthew J. Kacsmaryk denied the government’s motion to dismiss this case on April 26.  The suit targets the extension of Bostock’s reasoning to Title IX of the Education Amendments of 1972 and Section 1557 of the Affordable Care Act.

This case is an audacious example of overt forum-shopping.  The suit was filed in the U.S. District Court in Amarillo, Texas, a courthouse within the Northern District of Texas.  There is only one district judge assigned to that courthouse — Judge Kacsmaryk – so any case filed there goes directly to him.  They could not have picked a better judge for their case.  Kacsmaryk was among the early Trump judicial nominees, a Federalist Society member and former deputy general counsel of First Liberty Institute, a litigation group that pushes for the broadest possible interpretation of religious freedom as against government regulations.  LGBT groups protested his nomination, pointing to his statements that homosexuality as “disordered,” and that transgender people are delusional and suffering a mental disorder.  (As a member of the Red Mass Committee of the Roman Catholic Diocese of Fort Worth, his use of the term “disordered” is not surprising, given the use of this term by the Catholic Church to describe homosexuality.)  Despite the iron grip on judicial nominations by then-Majority Leader Mitch McConnell and then-Judiciary Committee Chair Chuck Grassley in the Senate, it took three tries for Trump to get this one through.  The 2017 nomination died at the end of session; Trump renominated in 2018, but that died at the end of session; Trump renominated in 2019.  This time, Kacsmaryk passed the Judiciary Committee and the Senate floor on party-line votes.  He’s the judge who enjoined the Biden Administration’s attempt to modify southern border control policies without going through a complete Administrative Procedure Act cycle.

The lawsuit was filed last year on behalf of three doctors, said to practice in Texas and California, but the judge’s opinion does not specify whether any of them practices within the geographical scope of the district court in Amarillo.  No matter, as jurisdiction to sue the federal government lies in every federal district court.  They claim fear of being sued or prosecuted for discrimination under Section 1557 because of their approach to dealing with transgender patients as the basis of their standing to sue.

Although one would expect a judge with Kacsmaryk’s background to be challenged with a recusal motion, or even to voluntarily recuse in an LGBT case given the controversy surrounding his appointment, there is not a whiff of that in the opinion.  The Justice Department moved to dismiss on two grounds: standing of the plaintiffs, and failure to state a claim in light of Bostock.  The essence of plaintiffs’ case is arguing that Bostock does not apply to Title IX and Section 1557, so the Biden Administration’s view (expressed in the President’s first executive order issued in January 2017 and a subsequent Notification sent to health care providers and insurers by HHS) is contrary to law.

As to standing, the plaintiffs allege that they have all had transgender plaintiffs, including minors (the main focus of their discussion), and that they have provided gender-affirming care to some when they felt it justified, but that they believe gender-affirming care is not appropriate for all minors who identify as transgender, that surgical alteration is never justified for minors, and that they should be free to treat their patients consistent with their patients’ “biological sex” and the doctors’ ethical views.  The Notification that HHS sent to health care providers early in the Biden Administration advised that the agency would apply Bostock’s reasoning to hold that Section 1557 of the Affordable Care Act, whose prohibited grounds of discrimination are cross-referenced from other federal laws including Title IX, applies to claims of discrimination because of sexual orientation or gender identity, and that HHS would enforce the statute accordingly.  This was directly contrary to the interpretation published by the Trump Administration as recently as January 2021, shortly before the transfer of office to Biden. The plaintiffs described various scenarios in which they believe that the treatments they were bound to provide or to deny based on their professional ethics would place them in danger of lawsuits by patients and enforcement by HHS under Section 1557.  Judge Kacsmaryk decided this was sufficient to give them standing to challenge the interpretation.  They are seeking declaratory and injunctive relief at this point.  None of them have been sued or investigated by HHS on this issue.

As to failure to state a claim, plaintiffs disputed that Bostock’s reasoning was applicable to Title IX and Section 1557 (although several other federal courts since June 2020 have found the reasoning applicable).  They note that the 5th Circuit has yet to issue a controlling precedent on this, and the Supreme Court has not taken up the question.  The judge decided that as a “pure question of law” this was an open issue, and that plaintiffs’ allegations were sufficient to put it in play.

In particular, the judge zeroed in on differences in language and structure between Title VII and Title IX.  Title VII, an employment discrimination statute, was construed in Bostock to impose a “but-for” test of intent for disparate treatment employment discrimination claims.  Judge Neil Gorsuch’s opinion for the Court reasoned that it was impossible for an employer to discriminate against an applicant or employee “because of” their sexual orientation or gender identity without discrimination “because of” their sex, using the language of the statute.  Furthermore, Title VII has been construed – a construction bolstered by Congress in the Civil Rights Restoration Act of 1991 – to apply so long as a forbidden ground of discrimination, such as sex, was a factor in a personnel decision, albeit just a contributing one.

By contrast, Title IX, adopted a few years after Title VII, prohibits discrimination by educational institutions that receive federal money “on the basis of sex.”  Plaintiffs argue that this is a different standard from that imposed by Title VII, and point to various provisions of Title IX that at least by implication would suggest a biological definition of sex and a binary treatment of sex, including a provision of the Title IX regulations (which is frequently invoked by defendant school districts in cases involving restroom and locker room access by transgender students) that authorize separate facilities for boys and girls.  Their argument is that Gorsuch’s reasoning in Title VII is peculiar to Title VII and the workplace issues to which it applies, and is not transferable to other contexts, such as schools or health care providers.  This argument, found the judge, puts the interpretive issue in play, so he denies the motion to dismiss for failure to state a claim.

As noted above, this case is clearly a set-up, filed in Amarillo specifically to present it to Judge Kacsmaryk, noting the strong rightward tilt of the 5th Circuit, where Republican appointees among active judges outnumber Democratic appointees by 12-5 (including 6 Trump appointees), and the plaintiffs’ clear aim is to get this up to the Supreme Court’s 6-3 conservative majority to get a “definitive” ruling that Bostock does not apply to Title IX (and by extension to the ACA Section 1557).  Civil rights enforcers in the Department of Education and the Department of Health and Human Services are already involved in investigating and pursuing claims in several courts.  The Supreme Court has already declined opportunities to address the question, but a 5th Circuit ruling along the lines proposed by America First in this lawsuit would create a circuit split that would prove most enticing to at least four and possibly more members of the court.

Counsel for plaintiffs from America First Legal Foundation is Gene Hamilton, with local counsel in Amarillo from Sprouse Shrader Smith PLLC, and Jonathan F. Mitchell of Austin.  Lead attorney from the Civil Division of the Justice Department is Jeremy S. B. Newman, with Brian Walters Stoltz from the U.S. Attorney’s Office in Dallas and Jordan Landum Von Bokern from the Justice Department in Washington.

This case bears close watching. A “nationwide” injunction from Judge Kacsmaryk would seem likely, if his analysis on the motion to dismiss is any indication, and could throw a wrench into ongoing enforcement activity, not only by HHS and DOE, but by other federal agencies with sex discrimination jurisdiction.

Plaintiffs Win Summary Judgment Against Former Rowan County (Kentucky) Clerk Kim Davis in Marriage License Case

Posted on: March 28th, 2022 by Art Leonard No Comments

On March 18 U.S. District Court Judge David Bunning ruled that Kim Davis, who was the Rowan County (Kentucky) Clerk in 2015 when the Supreme Court ruled that same-sex couples had a right to marry, see Obergefell v. Hodges, 576 U.S. 644, had violated the plaintiff same-sex couples’ constitutional rights by refusing to issue them marriage licenses.  Ermold v. Davis, 2022 WL 830606, 2022 U.S. Dist. LEXIS 48411 (E.D. Ky.).

Two of the couples who were denied licenses by Davis’s office in July 2015 and repeatedly thereafter –David Ermold and David Moore, and James Yates and Will Smith – and who had sued Davis to get their licenses, then went on to sue her for damages for violation of their constitutional rights.  Both couples were eventually able to get their marriage licenses after Judge Bunning jailed Davis for contempt of court when she defied his order to issue the licenses and a deputy clerk in the office issued the licenses as part of a deal to get Davis released.

Davis objected to same-sex marriage on religious grounds, and although she understood that her duty under the law was to issue the licenses, as she had been advised in a letter that Governor Steven Beshear had distributed to all the county clerks in Kentucky, and as she was also advised by the county attorney, she believed that under the 1st Amendment’s Free Exercise Clause she had a right to obey her conscience rather than the law.

A major sticking point for Davis was that the county clerk’s signature was required by a Kentucky statute to be on the marriage license, and she did not want this permanent and visible record of her acquiescence to exist.  She had asked the legislature to amend the marriage law to eliminate that requirement, but it did not act in time to forestall the problems that arose when same-sex couples showed up at her office seeking licenses.  She became a darling of the right-wing and a media sensation.  David Ermold, a college professor, decided to challenge her for re-election. He lost the Democratic primary contest, but the successful Democratic candidate, Elwood Caudill, went on to defeat Davis for re-election.  Eventually, the Kentucky legislature amended the law to dispense with the requirement of the county clerk’s signature on marriage licenses.

The U.S. Court of Appeals for the 6th Circuit rejected Davis’s argument that she enjoyed qualified immunity from being sued for damages, see Ermold v. Davis, 936 F.3d 429 (6th Cir. 2019), rehearing en banc denied, cert. denied, 141 S. Ct. 3 (Oct. 5, 2020), while holding that she could be sued only in her personal capacity, not her official capacity.  The Supreme Court’s certiorari denial brought a “Statement” by Justice Clarence Thomas, joined by Justice Samuel Alito, harping on how the Obergefell ruling, from which they had dissented, had resulted in Davis being “one of the first victims of this Court’s cavalier treatment of religion” in Obergefell, and concluded that “this petition provides a stark reminder of the consequences of Obergefell.  By choosing to privilege a novel constitutional right over the religious liberty interests explicitly protected in the First Amendment, and by doing so undemocratically, the Court has created a problem that only it can fix.”  Although speaking only for themselves, it is likely that President Trump’s three appointees to the Court would be sympathetic to the views expressed by Thomas and Alito, a clear warning that the Obergefell ruling is not beyond attack as “fixed precedent” of the Court.  The Court has continued to revisit religious liberty claims in the wake of Obergefell, and has granted a certiorari petition for next Term to confront the issue again.  The Court has yet to rule directly on the merits that a person or entity objecting to same-sex marriages must recognize or cater to them.

District Judge Bunning ruled on March 18 on motions for summary judgment by all the parties.  He granted summary judgment to the plaintiff couples and denied Davis’s motion for summary judgment.  However, he found that the question of what damages Davis should have to pay to the plaintiffs for her denial of their constitutional rights was a factual issue to be decided by a jury, so the case is not over yet.

Judge Bunning was appointed to the District Court in 2002 by President George W. Bush.  The American Bar Association had rated him as “unqualified” at that time, finding that at age 35 he lacked the necessary experience to be a federal trial judge, but he was unanimously confirmed by the Senate.  He had initially been somewhat hostile to the damage lawsuits, dismissing the complaints as moot since the legislature had changed the law in such a way that further refusals to issue licenses were unlikely, but the 6th Circuit reversed the dismissals, see 855 F. 3d 715 (6th Cir. 2017), and sent the case back for a ruling on the merits.

Early in the litigation against Davis, Judge Bunning wrote: “Our form of government will not survive unless we, as a society, agree to respect the U.S. Supreme Court’s decisions, regardless of our personal opinions. Davis is certainly free to disagree with the Court’s opinion, as many Americans likely do, but that does not excuse her from complying with it. To hold otherwise would set a dangerous precedent.”

In his March 18 decision, he decisively rejected Davis’s argument that she should enjoy qualified immunity from having to pay damages, because the Supreme Court had established in Obergefell that the gay couples had a constitutional right to get the marriage licenses, and Davis’s testimony showed that “she knowingly violated the law.”  Elected officials enjoy “qualified immunity” from personal liability for paying damages for their actions in office unless they are violating a clearly established right of which they had reason to know.  “Any argument that Davis made a mistake, instead of a conscious decision to violate the law, is not only contrary to the record, but also borders on incredulous,” wrote Judge Bunning.

The gay couples had not sought to have Judge Bunning rule on the amount of damages in their summary judgment motion, acknowledging that they had yet to provide the necessary evidence to document their injuries.  Nominal damages (a small symbolic amount) would always be available for a constitutional violation, but their claims are more wide-ranging.  They seek compensatory and punitive damages, pre and post judgment interest (for litigation that dates back to 2015), and costs and attorneys’ fees, which are authorized under federal law for successful plaintiffs who sue to vindicate their constitutional rights.  The compensatory damage claims are for “mental anguish, emotional distress, humiliation and reputation damages.”  Testimony by therapists would be provided to the jury to gauge the extent of the emotional damages.

In addition, Bunning wrote, “Based on the record before the Court, it seems plausible that Davis could have acted with reckless indifference to the constitutional rights of Plaintiffs,” which means they could also win punitive damages, intended to punish Davis for violating her oath of office in way likely to cause injury to the plaintiffs.

The plaintiffs are represented by Rene B. Heinrich of Newport, Kentucky, and William Kash Stilz, Jr., of Covington, Kentucky.  Davis is represented by Liberty Counsel and attorneys affiliated with that organization, which virtually guarantees that this ruling will be appealed to the 6th Circuit again, and that an ultimate ruling on the merits will have Davis knocking on the Supreme Court’s door again.

Indiana Court of Appeals Divides Three Ways on Gender Marker Change for Transgender Teen

Posted on: September 8th, 2021 by Art Leonard No Comments

In Matter of A.B., 164 N.E.3d 167 (Ind. Ct. App. 2021), decided earlier this year, a divided panel of the Indiana Court of Appeals ruled that a parent’s petition to change the name and gender marker of their transgender minor child could be approved, despite the lack of explicit statutory authority, if the court determined that the change was in the best interest of the child, with Judge Rudolph R. Pyle, III, dissenting on the ground of lack of legislative authority for the court’s action.  On August 30, in In re Change of Name and Gender of H.S., 2021 Ind. App. LEXIS 267, 2021 WL 385266 (Ind. Ct. App.), the same court again split three ways in a case where parents petitioned to change the name and gender marker of a minor, in this case their 15-year-old transgender son.  Affirming a ruling by Allen Superior Court Judge Andrew S. Williams, they held that Judge Williams’s grant of the name change but denial of the gender marker change was not clearly erroneous.  Observing that the legislature had not responded to their earlier ruling by addressing the question of the standard for evaluating such a petition, Judge L. Mark Bailey’s majority opinion found that Judge Williams did not err because the parents did not present sufficient testimony to show that granting the gender marker change in the teen’s birth certificate would be in the best interest of the minor, H.S.

The parents offered in evidence a letter from H.S.’s treating physician stating that H.S.’s sex “has been changed by medical procedure from female to male” and that H.S.’s birth certificate should be changed accordingly.  They also offered a letter from a licensed mental health counselor who stated that H.S. “was initially seen at my office in January of 2020, for issues related to gender identity, and that he “was determined to be exhibiting symptoms consistent with a diagnosis of Gender Dysphoria,” had “presented male at all of his [counseling] sessions,” and “began testosterone therapy in August of 2020” and “shared about his desire to change his name and gender marker,” which the counselor believed to be “important to his overall wellbeing.”  The petition was filed on September 16, 2020, by the Mother under oath, accompanied by a signed parental consent by both Mother and Father.  Judge Williams accepted the letters into evidence, and conducted a hearing on March 4, 2021, at which both parents and H.S. testified.  Judge Williams then ordered that the case be sealed from public access.

On April 16, 2021, Williams issued an Order granting the name change and denying the gender marker change.  He purported to apply the “best interest of the child” analysis as dictated by the Court of Appeals’ decision in Matter of A.B., and focused on “the mental and physical health of the child” as “likely the most significant factor.”  As such, he pointed to “the absence of expert testimony or authenticated documents,” wrote Judge Bailey, quoting Williams’s finding “the lack of competent evidence with regard to this factor to be dispositive.”  Williams found that Mother, the petitioner, failed to establish that it was in the best interest of H.S. to have the gender marker changed.  This seems odd on its face.  H.S. would legally be known by a male name but would have a birth certificate indicating a female sex.

On appeal, Mother argued that the court should presume that when parents petition for a gender marker change for their child, it is in the best interest of the child to grant it, not dependent upon a specific medical intervention.  Judge Bailey disagreed, while noting that no Indiana statute makes expert testimony or medical records a requirement for a gender marker change.  After reviewing the history of the Indiana courts’ treatment of the issue of name and gender marker changes for transgender petitioners, he pointed out that the permissive standard followed for adults does not apply to minors.  “It is necessary to examine the statutory provision for alteration to a birth certificate with the objective of neither invading the legislative domain nor that of a fit parent,” he wrote.  “The generic statutory provision has served as a vehicle with enough flexibility to permit its ready application to the gender marker choice of a competent adult.  Nevertheless, the statutory flexibility applicable to adults has reached a point of inelasticity where the issue concerns children.  And assuming the statute has application when a parent seeks a change of gender marker for a child, its streamlined (essentially unquestioned) application to a child would ignore the State’s interest in the child’s wellbeing.”

“Clearly, the totality of the child’s medical history is highly relevant,” wrote Bailey.  “But here the parents decided to forego expert testimony or the proffer of any relevant medical records, in favor of their conclusory testimony prompted by their teenager’s relatively recent disclosure.  Indeed, the trial court aptly pointed out that there was no authenticated document of any sort admitted into evidence.  Under these circumstances, I cannot say that the trial court misapplied the law.”

Under the logic of Bailey’s decision, despite the lack of any such statutory requirement, parents petitioning for a gender marker change for their child should be prepared to have testimony under oath from the child’s physician and mental health counselors, and to submit medical records in evidence.  This decision does not make a gender marker change unavailable, but it probably makes it considerably more expensive to obtain such an Order.  The parents in this case could go back to square one with a new petition; otherwise, H.S. will have to wait until his majority to file a petition on his own as an adulty, under the more “elastic” standards pertaining.  Unless, of course, this case is appealed and the Indiana Supreme Court adopts the dissenter’s view of the record while approving Matter of A.B.

Judge Pyle concurred in the result, reiterating his dissenting view from Matter of A.B. that the court did not have authority to order a gender marker change for a minor in the absence of legislative authorization to do so.  The biggest risk of an appeal by the Petitioners in this case is that the Indiana Supreme Court might agree with Judge Pyle and overrule Matter of A.B., putting gender marker changes out of reach for minors in Indiana in the absence of legislative action (which one speculates would not be readily forthcoming).  As of the end of August, we found no record of an appeal filed in Matter of A.B., which was decided in February 2021.

Judge Terry A. Crone dissented at length, finding that the evidence introduced by the parents was sufficient to perform the analysis required by Matter of A.B. and to conclude that granting the gender marker change was in the best interest of H.S.  He rejected Judge Bailey’s dismissive characterization of the letters accepted into evidence by H.S.’s physician and counselor, and found that Judge Williams, in passages not acknowledged by Judge Bailey, had indulged in stereotyping and generalizations with no factual support in the record.

“In its order,” wrote Judge Crone, “the trial court was dismissive of fifteen-year-old H.S.’s age, stating that ‘any parent who has raised a teenager is well-aware that their thoughts, opinions, and wishes change rapidly.  Teenagers are full of hormones and emotions which often results in impulsive, short-sighted decisions.  At this age, teenagers are also easily influenced by peer pressure, trends, and pop culture.’  These are not specific findings based on the evidence actually presented to the court,” insisted Judge Crone.  “These are blatant and biased overgeneralizations.  There is no indication that H.S.’s decision to change his gender via a medical procedure was impulsive or the result of peer pressure or pop culture influences.  According to Mother, it took H.S. ‘a year’ before he felt ‘ready’ to tell her and Father about his desire to transition.  H.S. has received counseling for gender identity issues, and both Mother and Father are supportive of his course of action, testifying that he seems ‘happier’ now.”

Judge Williams held this parental support against H.S., finding that it had more to do with the parents wanting to support their child’s decisions than with the child’s best interests.  To the contrary, wrote Judge Crone, “It should go without saying that H.S.’s parents, who have known him since his birth, are infinitely more capable than the trial judge of judging what ‘happiness’ means to their child and what is in his long-term best interests with respect to his gender identity.”  He quoted at length from the parents’ trial testimony to show that their support for H.S.’s transition was well-considered.  Their testimony about how making these changes would be practically useful for their son as he lived in his gender identity was considered “troubling” by Williams, who criticized the parents, writing of their testimony, “It seemed more in line with parents wanting to support their child’s decisions rather than parents objectively considering the best interests of their child.”  Ultimately, Williams was unpersuaded by the parents’ testimony that the transition had resulted in a remarkable affirmative change in their child, from a quiet introverted person to a happy more “interactive” person.  As far as Judge Williams was concerned, apparently there was no real change because H.S.’s school grades remained consistent from before to after the transition.  He described H.S. as a “well-adjusted” youth prior to his transition – based on what evidence is hard to discern.

Finally, on the point about proof of best interest in terms of mental and physical health, Judge Crone wrote that Williams’ statement that “no admissible evidence” was presented by the parents “obviously is not the case because the court actually admitted testimony of H.S. and his parents, as well as the letters from H.S.’s physician and mental health counselor.  Judge Bailey deems the parents’ testimony ‘conclusory,’ but I respectfully disagree.  We must review the trial court’s ruling based on the record before us, and I believe that the record is more than sufficient to support the granting of Mother’s petition to change the gender marker on H.S.’s birth certificate.”  He considered Judge Williams’ failure to grant the petition to be “a blatant abuse of the trial court’s discretion.”

Petitioners are represented by Kathleen Bensberg, Megan Stuart, and Kylee Tomblin, of Indiana Legal Services, Indianapolis.

Federal Court Rules That Charlotte (N.C.) Catholic High School Violated Title VII by Discharging Gay Substitute Teacher 

Posted on: September 6th, 2021 by Art Leonard No Comments

In 2014, after federal courts ruled that North Carolina had to allow same-sex couples to marry, Lonnie Billard and his long-time partner Richard Donham decided to marry and Billard posted an exuberant announcement on his Facebook page for his friends only.  He ended that announcement by stating, “If you don’t agree with this. . . keep it to yourself.  You never asked my opinion about your personal life and I am not asking yours.”

Among Billard’s Facebook friends were staff and parents associated with Charlotte Catholic High School, where he had taught as a substitute English teacher since 2012, after a decade as a full-time member of the faculty teaching English and Drama.  His friends did not keep the news to themselves, and the school stopped calling Billard as a substitute.  When he asked why, he was told by the assistant principal that it was because he “announced his intention to marry a person of the same sex.”

Billard had been a very successful teacher at Charlotte Catholic.  He won the Inspirational Educator Award from North Carolina State University in 2011 and the Charlotte Catholic Teacher of the Year Award in 2012.  He had been nominated for that award “every year since its inception,” according to the man who was principal of the school at that time.  He had been associated with the school since 2000, and throughout that time he had been in a “romantic relationship” with Donham, whom he listed on Charlotte Catholic employee contact forms as his “friend” or “housemate,” and who was identified on some forms as living at the same address as Billard.  Donham came to Charlotte Catholic events with Billard, accompanying him on class trips to New York City with the drama students to see musicals, and had even served as a substitute teacher when Billard was teaching English full-time.  Donham also substituted at the Charlotte Diocese’s middle school.  Billard claimed that members of the high school’s administration knew that he was gay, but the current principal and assistant principal both claimed, rather incredibly, that they were not aware of his sexual orientation until his Facebook post in December 2014.

The Catholic Church is outspokenly opposed to same-sex marriage, and Catholic schools, which have employed many lesbians and gay men as teachers, have consistently dismissed those employees, regardless of how they have performed their jobs, upon finding out that they intended to or had married same-sex partners.  The de facto position of the Church sounds like the federal government’s old “don’t ask, don’t tell” policy on gay military service.  They were happy to employ qualified gay people as ministers (especially church musicians) and teachers, so long as the employees were quiet about being gay and did not go public on same-sex marriages, which the Church saw as defying Catholic doctrine and setting a bad example for congregants and students.

Billard filed a charge with the Equal Employment Opportunity Commission in May 2015, claiming a violation of his rights under Title VII, but at that time the EEOC had not yet issued its ruling that it would investigate and prosecute sexual orientation claims under Title VII’s ban on discrimination because of sex.  Ironically, the EEOC issued such a decision, in the case of gay air traffic controller David Baldwin, in July 2015, shortly after the Supreme Court ruled in June 2015 in the Obergefell case that same-sex couples had a constitutional right to marry.  Billard’s charge was still pending with the EEOC at that time, but perhaps the school’s religious defenses discouraged the EEOC from pursuing Billard’s case directly, as it decided not to sue Charlotte Catholic High School on his behalf, instead issuing a “Notice of Right to Sue Letter” to him in November 2016.  He obtained representation from the ACLU Foundation and its North Carolina affiliate, which filed suit against the school in January 2017.   On September 3, 2021, U.S. District Judge Max O. Cogburn, Jr., of the federal district court in Charlotte, granted summary judgment to Billard and denied summary judgment to the school, finding that Billard had proven a clear violation of Title VII and that none of the defenses argued by the school were valid.

The school argued that it had not fired Billard because is gay, but rather because he supports gay marriage, which the Catholic Church opposes.  The school argued that under the First Amendment’s protection for free exercise of religion, it is privileged to discharge teachers who disagree with the Church’s positions.  The school also argued that it was protected from liability by two sections of Title XII that relieve religious institutions, including religious schools, from complying with the statute’s ban on discrimination because of religion.  The school also cited a “church autonomy doctrine” under the First Amendment, which prohibits “excessive government intrusion upon religion” and which includes the so-called “ministerial exception” that the Supreme Court has identified as sheltering religious institutions from any liability for their employment decisions regarding ministers.  The school also cited the Religious Freedom Restoration Act, arguing that this federal statute would prevent the court from holding it liable for discrimination under Title VII.

The school actually disclaimed any contention that Billard comes within the ministerial exception, but to be on the safe side, Judge Cogburn explained why Billard’s duties as a substitute teacher did not come within the scope of that exception, as most recently described by the Supreme Court last year in a Catholic schoolteacher case, Our Lady of Guadalupe School v. Morrissey-Berru.  Despite the Supreme Court’s broad definition of the exception to extend to any religious school teacher who performed any religious functions, the judge concluded that Billard’s charge to lead a prayer at the beginning of each class was too minimal to excuse the School from complying with Title VII in his case.  He was not hired to teach religion.

Judge Cogburn rejected the school’s argument that discharging somebody for announcing his plans to marry a same sex partner was not discriminating against him because of his sex (or sexual orientation), drawing a comparison to Supreme Court Justice Neil Gorsuch’s reasoning in the Bostock decision of 2020.  The judge pointed out that a female teacher who posted an announcement on Facebook that she was marrying a man would not be discharged, but when Billard, a man, posted the announcement that he was marrying a man, he was discharged, so clearly his sex was a reason for his discharge.  Justice Gorsuch had described similar hypothetical situations in explaining the Supreme Court’s conclusion that firing an employee for being gay was inescapably due, in part, to the employee’s sex, and thus prohibited by Title VII, even though members of Congress in 1964 would not have expected such a ruling.  Gorsuch, a “textualist,” takes the view that the words of the statute take priority over the expectation or intentions of the legislators who passed it, and his view won the support of six of the Court’s nine members.

As to the express religious institution exemptions included in Title VII, the court concluded that they were not intended to excuse religions institutions from complying with Title VII’s ban on discrimination because of sex. Rather, they were enacted to allow religious institutions to prefer members of their faith in making employment decisions.  Billard is a Catholic, and the court was unwilling to accept the school’s argument that a provision allowing it to discriminate because of religion also gave it a right to discriminate because of sex if it had a religious reason for doing so.  Under that theory, a religious institution would be free to discriminate on the basis of race, color, national origin or sex, the other categories prohibited under Title VII, which stretches the religious exception too far and would expose thousands of employees of religious institutions to discriminatory treatment.  Congress has not given religious institutions free reign to discriminate against employees for reasons other than the employees’ religion.

As to the Religious Freedom Restoration Act, many federal appeals courts have ruled that it applies only to situations where the government is suing to enforce a federal statute against a religious defendant, but not to lawsuits brought by private individuals.  Although the Supreme Court has yet to rule on this question, and at least one appeals court has disagreed with that conclusion, Judge Cogburn found based on a close reading of the text of RFRA that it was clearly aimed to restricting enforcement actions by the government, and that a court decision in a lawsuit brought by a non-governmental litigant, such as Lonnie Billard, would not be subject to RFRA’s requirement that the government prove it had a compelling interest to enforce a federal law that burdens the defendant’s free exercise of religion. The court itself is not a “party” to a non-governmental lawsuit, and in the absence of a governmental party, the affirmative defense provisions of RFRA have no application.

Several lawsuits are pending around the country in which employees of Catholic institutions who were discharged over the same-sex marriage issue are seeking relief under Title VII.  In many of them, the plaintiffs’ job duties were such as to bring them within the ministerial exception.  Billard’s is the rare case that was not, at least according to Judge Cogburn’s analysis.

Having granted Billard summary judgment on the merits of his claim, Judge Cogburn ordered that the case “Proceed to trial to determine the appropriate relief that should be granted.”  It is likely that to avoid a court order to reinstate Billard as a substitute teacher, the school may offer a substantial financial settlement.  Title VII specifically lists “reinstatement” as a remedy for a wrongful discharge.  If the case doesn’t settle and Judge Cogburn orders reinstatement, the school and the Roman Catholic Diocese of Charlotte, a co-defendant, are likely to appeal to the 4th Circuit Court of Appeals.

Judge Cogburn was appointed to the court by President Barack Obama.  In 2014, he wrote the decision striking down North Carolina’s ban on same-sex marriage, a decision that was upheld by the 4th Circuit and denied review by the Supreme Court, and it was the decision that led Billard and Donham to decide to get married that led to this lawsuit!

District Court Rejects Constitutional Challenge to Washington State’s Conversion Therapy Ban

Posted on: September 2nd, 2021 by Art Leonard No Comments

Senior U.S. District Judge Robert J. Bryan has dismissed constitutional challenges to Washington State’s Conversion Therapy ban (codified in Wash. Rev. Code Sections 18.130.20 and 18.130.180) brought by Brian Tingley, a licensed Marriage and Family Therapist, who asserted a violation of his free speech and free exercise of religion rights, as well as alleging a violation of due process.  Tingley v. Ferguson, 2021 WL 3861657, 2021 U.S. Dist. LEXIS 164063 (W.D. Wash., Aug. 30, 2021).  Equal Rights Washington had intervened to help named defendants, Washington Attorney General Robert W. Ferguson and others, in defending the law.  After Alliance Defending Freedom (ADF) filed suit on Tingley’s behalf, it sought a preliminary injunction against enforcement of the law, while defendants filed a motion to dismiss the case.  Judge Bryan granted defendants’ dismissal motion, and denied intervenors’ dismissal motion and Tingley’s motion for preliminary injunction as moot.  Judge Bryan’s ruling sets up the case for ADF to appeal, based on its argument that 9th Circuit decisions rejecting similar challenges to California’s Conversion Therapy ban are no longer “good law” in light of the Supreme Court’s ruling in NIFLA v. Becerra, 138 S. Ct. 2361 (2018).

Tingley alleged that he has violated the Washington law by providing therapy sought by minors who were unhappy about their same-sex attractions or discomfort with their biological gender.  Although his religious beliefs underly his opinions about sexual orientation and gender identity, he does not identify as a religious counselor who would be expressly exempted under the law.  The court determined that Tingley had individual standing to bring his challenge, but not representative standing for his clients.

To cut to the quick, Judge Bryan held that the 9th Circuit’s opinions in Pickup v. Brown, 740 F.3d 1208 (9th Cir. 2014) and subsequent cases concerning the California law, are binding precedent in this case.  The essence of ADF’s free speech argument is that the Supreme Court’s rejection of a distinct category of “professional speech” subject to a lesser standard of 1st Amendment expression than other forms of speech in NIFLA v. Becerra had essentially overruled Pickup, and pressed home this point by citation to Pacific Coast Horseshoeing School, Inc. v. Kirchmeyer, 961 F.3d 1062 (9th Cir. 2020), in which that court noted in a citation that NIFLA had “abrogated” Pickup.  Not mentioned in Judge Bryan’s opinion is that Justice Clarence Thomas’s opinion for the Supreme Court in NIFLA spoke disparagingly about the treatment of “professional speech” in two conversion therapy cases, Pickup and King v. Governor of New Jersey, 767 F.3d 216 (3rd Cir. 2014), a similar ruling upholding New Jersey’s conversion therapy law.  Judge Bryan rejected this argument, finding that the basis of the Pickup ruling was a determination that the California law regulated professional conduct, the provision of a “therapy,” which incidentally involved speech, but the law was focused on the conduct, not the speech.

Bryan noted as well that the plaintiffs in Pickup and the New Jersey case had petitioned the Supreme Court after the NIFLA ruling to order the 9th and 3rd Circuits to recall their decisions concerning conversion therapy bans, but the Supreme Court rejected those petitions.  See Pickup v. Newsom, 139 S. Ct. 2622 (petition denied, May 20, 2019); King v. Murphy, 139 S. Ct. 1567 (petition denied, April 15, 2019).

Conceptualized as a regulation of licensed professional conduct, wrote Bryan, “the Washington Conversion Law is subject to rational basis review, it is rationally related to the State’s asserted interest ‘in protecting the physical and psychological well-being of minors, including lesbian, gay, bisexual, and transgender youth, and in protecting its minors against exposure to serious harm caused by conversion therapy.’”  Thus, the court found no violation of Tingley’s free speech rights.

On the Due Process claim, Bryan rejected Tingley’s assertion that the law was impermissibly vague, noting that the 9th Circuit had rejected this argument in Pickup regarding the similarly-worded California statute and finding that a “reasonable person” could figure out that what was outlawed was therapy intended to “alter a minor patient’s sexual orientation” or gender identity.  The 9th Circuit did not find either of those terms to be vague, finding ample definitions in dictionaries as well as the definitional provisions of the statutes.

As to the Free Exercise argument, Judge Bryan found that the 9th Circuit had rejected a similar argument in Welch v. Brown, 834 F. 3d 1041 (9th Cir. 2016), a companion case decided by the 9th Circuit together with Pickup.  The law does not target religion.  “Like in Welch,” wrote Bryan, “the object of the Conversion Law is not to infringe upon or restrict practices because of their religious motivation.  Its object is to ‘protect the physical and psychological well-being of minors. . .  The Conversion Law does not, either in practice or intent, regulate the way in which Plaintiff or anyone else practices their religion.  Instead, it ‘regulates conduct only within the confines of the counselor-client relationship,’” citing Welch.  “Plaintiff is free to express and exercise his religious beliefs; he is merely prohibited from engaging in a specific type of conduct while acting as a counselor.”

Bryan also rejected ADF’s argument that because both speech and free exercise were implicated, under a “hybrid rights” doctrine the law was subject to a higher level of judicial scrutiny.  “It is not clear that the hybrid rights exception ‘truly exists,’” he wrote, quoting the 9th Circuit’s opinion in Parents for Privacy v. Barr, 949 F. 3d 1210 (2020), but even assuming that it does, “the doctrine would compel a higher level of scrutiny for claims that implicated multiple constitutional rights, in this case free exercise and free speech.  Because the Court already established that Plaintiff’s claim does not implicate free speech, the hybrid rights exception does not apply and does not undermine the holding of Welch.”

ADF will certainly appeal this ruling to press the argument that NIFLA has “abrogated” Pickup and Welch and compels a ruling for their client on the free speech claim.  Striking down Conversion Therapy bans is a major item on ADF’s anti-LGBTQ agenda.

Intervenor Equal Rights Washington is represented by National Center for Lesbian Rights and pro bono counsel Raegen Nicole Rasnic of Skellenger Bender, PS, Seattle.  The court also received a brief on behalf of The Trevor Project, the Foundation for Suicide Prevention, and the American Association of Suicidology, identified as “Interested Partys.”

Judge Bryan was appointed to the court by President Ronald W. Reagan.

Virginia Supreme Court Panel Orders Reinstatement of Gym Teacher Suspended for Publicly Opposing School District’s Proposed Policy on Transgender Students

Posted on: September 2nd, 2021 by Art Leonard No Comments

 

On August 30 a three-judge panel of the Virginia Supreme Court upheld a trial court’s order that Loudoun County School Board must reinstate Leesburg Elementary School gym teacher Tanner Cross, who was placed on paid leave after he spoke out at a School Board meeting against a proposed policy that would require teachers not to misgender transgender students.  Loudoun County School Board v. Cross, Record No. 210584, Circuit Court No. CL21003254-00.  The Court agreed with the trial judge that Cross’s statement probably enjoyed freedom of speech clause protection under the Virginia Constitution, applying principles developed by the U.S. Supreme Court under the 1st Amendment concerning constitutional protection for public employee speech.

A recent Virginia statute, Code Section 22.1-23.3, mandated that the state’s Department of Education “develop and make available to each school board model policies concerning the treatment of transgender students in public elementary and secondary schools.”  The statute also requires school boards to adopt policies “that are consistent with but may be more comprehensive than the model policies developed by the Department of Education.”

On May 25, 2021, the Board held a public meeting at which it discussed a proposed policy that would allow transgender students to use a name different than their legal name, allow them to use gender pronouns different from those corresponding to their “biological sex,” would require school staff to use students’ chosen names and gender pronouns, and would allow students to use school facilities and participate in extra-curricular activities consistent with their “chosen” gender identity.

Cross, who had taught at Leesburg Elementary for eight years, was strongly opposed to the proposed policy, and attended the public meeting to speak during the “public comment” period.  He claimed to be speaking “out of love for those who suffer with gender dysphoria,” referencing a 60 Minutes feature about “young people who transitioned” and then “felt led astray because of lack of pushback, or how easy it was to make physical changes in their bodies in just three months. They are now de-transitioning,” he said.  He stated opposition to the proposed policy because “it will damage children, defile the holy image of God.”

Cross said, “I’m a teacher but I serve God first.  And I will not affirm that a biological boy can be a girl and vice versa because it is against my religion.  It’s lying to a child.  It’s abuse to a child.  And it’s sinning against our God.”

Cross’s comments generated discussion among Leesburg parents on social media, and after one parent called the school authorities to ask that Cross not have any contact with her child, a supervisor told Cross that he was being placed on administrative leave with pay pending an “investigation.”  Then the Assistant Superintendent sent a letter to Cross stating he was under investigation “for allegations he engaged in conduct that had a disruptive impact on the operations of Leesburg Elementary,” and that he was banned from Loudoun County Public Schools property unless he got permission from the Leesburg Elementary principal.  He was also informed he would not be permitted to speak on this topic at future Board meetings, and he was relieved from his normal duty of joining with other teachers to greet students as they arrived at the school. All Leesburg Elementary parents and staff received an email announcing his suspension.

Cross obtained representation from Alliance Defending Freedom (ADF), a litigation organization that frequently opposes LGBTQ rights on religious grounds.  ADF filed a state court lawsuit claiming that the Loudoun County Board’s actions violated Cross’s free speech and free exercise of religion rights, and sought an immediate order that he be reinstated while the case is litigated.  The trial court issued the order on free speech grounds, and the school board appealed.  The court was less certain that Cross could prevail on his religious freedom claim, and decided that the school board’s conclusion that Cross would violate the policy based on his statements was premature, because he could avoid compromising his believes by avoiding the use of gender pronouns for students.  (Such pre-trial orders are reviewed for “abuse of discretion” by a three-judge panel of the seven-member state Supreme Court.)

Under a 1968 U.S. Supreme Court decision, Pickering v. Board of Education, 391 U.S. 563, a public employee who speaks as a citizen on a matter of public interest is protected under the 1st Amendment from retaliation by their government employer unless their speech disrupts the operation of the employee’s workplace.  The Virginia Supreme Court pointed out that it has generally followed federal precedents in interpreting the free speech provision of the state constitution.

In this case, relying on parental discussion on social media and the phone calls that the district eventually received from several parents asking that their children not be exposed to Mr. Cross, the school board claimed that “disruption” of the elementary school justified its action of suspending Cross.  It also pointed to his statement signaling that he could not comply with the requirement in the proposed policy that teachers use transgender students’ desired names and genders.  The board had ultimately adopted the proposed policy, but there is no indication that there were any transgender children in Cross’s gym classes, although one of the parents who called to complain in response to Cross’s remarks is a transgender individual who reported that Cross’s remarks had upset her children.

The trial judge concluded that the school board had not presented sufficient evidence of actual disruption of the elementary school’s operations to justify suspending Cross for an “investigation” of his remarks, and the Virginia Supreme Court agreed, in a unanimous opinion by three of its members, Justices Arthur Kelsey, Stephen R. McCullough, and Teresa M. Chafin.

Cross’s state court lawsuit relies on Article I, Section 12 of Virginia’s Constitution, which essentially protects the same right of free speech as the federal First Amendment.  The court has adopted a “two-step inquiry” to determine whether the government’s action violates this provision, asking first whether the public employee’s speech was on a matter of public concern, and second whether the employee’s interest in making his public comments outweighed the government’s “interest in providing effective and efficient services to the public,” which is essentially the same test the U.S Supreme Court applies under its Pickering decision.

Cross made his statements at a public Board meeting where the proposed transgender policy was being discussed.  The court quote a decision by the U.S. Court of Appeals for the 4th Circuit, which has jurisdiction over federal appeals from Virginia, holding that “both the teacher and the public are centrally interested in frank and open discussion of agenda items at public meetings.” Furthermore, the court pointed out, “In addition to expressing his religious views, Cross’ comments also addressed his belief that allowing children to transition genders can harm their physical and mental wellbeing.  This is a matter of obvious and significant interest to Cross as a teacher and to the general public.”  And, of course, the court noted that Cross was “opposing a policy that might burden his freedoms of expression and religion by requiring him to speak and interact with students in a way that affirms gender transition, a concept he rejects for secular and spiritual reasons.”  Thus, the court concluded that Cross’s interest in making his points at the meeting was “compelling.”  Indeed, concluded the court on this point, “We believe Cross has a strong claim to the view that his public dissent implicates ‘fundamental societal values’ deeply embedded in our Constitutional Republic.”

As against this, the court asserted that the defendants had “not identified an abuse of discretion in the circuit court’s conclusion that [the board’s] interest in disciplining Cross was comparatively weak.”  In particular, the court rejected the board’s argument that the trial judge did not give adequate weight to the board’s contention that Cross’s statements had and would continue to have a disruptive effect on Leesburg Elementary School’s operations.  The Supreme Court panel agreed with the lower court that the evidence of disruption was weak, and it pointed out that the Board’s argument that Cross had announced that he would not comply with the policy if it was enacted was not raised in the letter sent to Cross announcing his suspension.

Cross had followed up his public comments with an email to the Board and the school superintendent, stating his unwillingness to comply with the transgender policy.  But, the court pointed out, the Board took no action based on that email, because, as a private communication rather than a public statement, it had not caused any particular disruption at the school.  The court also commented that the Board had presented “no evidence that it would have been problematic or administratively taxing to accommodate the parents who requested Cross not teach their children,” or that dealing with “managing fallout from Cross’ public comment” had taken up any significant amount of the principal’s time.

“The only disruption that Defendants can point to is that a tiny minority of parents requested that Cross not interact with their children,” wrote the court.  “However, the Defendants identify no case in which such a nominal actual or expected disturbance justified restricting speech as constitutionally valued as Cross’ nor have they attempted to explain why immediate suspension and restricted access to further Board meetings was the proportional or rational response to addressing the concerns of so few parents.”

The court also noted two judicial opinions that would support the conclusion that “Cross has a potentially successful claim.”  In one, Meriwether v. Hartop, the Cincinnati-based U.S. Court of Appeals for the 6th Circuit found that an Indiana public university violated a professor’s 1st Amendment free speech rights when it disciplined him for misgendering a student in class.  In another, while finding that a teacher did not have a 1st Amendment right to disobey a school’s transgender policy, a federal trial court in Indiana observed that “the teacher is not asserting that he was disciplined for criticizing or opposing the policy.”

Thus, the court’s opinion is limited in focusing on the right of the teacher to state his views at a public board meeting on a matter that was being considered by the board, without holding that Cross would necessarily enjoyed constitutional protection from discipline if he actually disobeyed the policy by misgendering students at the school, which would necessarily raise questions under a federal statute, Title IX of the Education Amendments of 1972, whose possible impact was not considered by the court in this case.

As of the end of August, this opinion had not been published on Westlaw or Lexis or the court’s website. We speculate that because it is a three-judge panel ruling on an interlocutory appeal, it would not be deemed suitable for publication as an opinion of the court.

Church Loses Battle with Amazon Over Exclusion from AmazonSmile Program

Posted on: August 1st, 2021 by Art Leonard No Comments

The AmazonSmile Foundation, a tax-exempt corporation affiliated with Amazon.com, declined an application by Coral Ridge Ministries Media, a Christian ministry and media corporation, to participate in the AmazonSmile program, because the Southern Poverty Law Center (SPLC) listed Coral Ridge as a “hate group” on its website, due to Coral Ridge’s expressed views about homosexuality.  Under the Amazon Smile program, Amazon customers designate charities from a list approved by the Foundation to receive a donation from Amazon of 0.5% of purchases of qualifying goods and services from the Amazon.com website.   Under the terms of the program, “hate groups” may not participate, even if they would otherwise qualify as tax-exempt charitable organizations.

On July 28, the U.S. Court of Appeals for the 11th Circuit rejected Coral Ridge’s state law defamation claim against SPLC for labeling it a “hate group” and its religious discrimination claim against Amazon for excluding it from the Smile program.  Circuit Judge Charles Wilson wrote for the three-judge panel in Coral Ridge Ministries Media, Inc. v. Amazon.com, Inc., 2021 WL 3184962.

Senior U.S. District Judge Myron Thompson had dismissed the lawsuit on both claims in September 2019, concluding that Coral Ridge’s allegations fell short of describing actionable defamation under Alabama law, and that the AmazonSmile program is not a public accommodation covered by Title II of the Civil Rights Act of 1964, which forbids discrimination because of religion.  See 406 F. Supp. 3d 1258 (M.D. Ala.). He alternatively found that allowing Coral Ridge’s claim would violate Amazon’s First Amendment rights, and that Coral Ridge’s factual allegations did not support a claim of discrimination because of religion.  While agreeing that Thompson correctly dismissed the case, the three-judge Court of Appeals panel ruled more narrowly than had Thompson on both claims.

To win a defamation suit, a plaintiff must allege that the defendant made a damaging false statement of fact about the plaintiff.  If the plaintiff is considered a “public figure,” which Coral Ridge conceded that it is, the plaintiff has to show that the false statement was made with “actual malice” by the defendant.  “Actual malice” is a term of art in defamation law.  It means that defendant made the false statement “with knowledge that it was false or with reckless disregard of whether it was false or not.”

“Coral Ridge did not sufficiently plead facts that give rise to a reasonable inference that SPLC ‘actually entertained serious doubts as to the veracity’ of its hate group definition and that definition’s application to Coral Ridge,” wrote Judge Wilson, “or that SPLC was ‘highly aware’ that the definition and its application was ‘probably false.’”  In this case, Coral Ridge was quibbling with the definition of a hate group that SPLC stated on its website.  Since SPLC states its own definition, however, “it is hard to see how SPLC’s use of the term would be misleading,” wrote Judge Wilson.

While conceding that Coral Ridge rejected homosexuality based on religious beliefs, the church alleged that it “has never attacked or maligned anyone on the basis of engaging in homosexual conduct,” but even accepting that allegation as true – which the court would have to do in ruling on a motion to dismiss the case as a matter of law —  the court found that Coral Ridge’s allegation provided no basis for finding that SPLC intentionally or recklessly mislabeled the church, so it upheld Judge Thompson’s dismissal of this claim.

The discrimination claim against Amazon is more complicated.  For one thing, it is not clear that Amazon.com or its affiliate AmazonSmile Foundation could be considered public accommodations in their dealings with applicants to participate in the Smiles program.  While Judge Thompson had assumed without analysis that these defendants could be considered “places of public accommodation,” he found that the AmazonSmile program “did not qualify as a ‘service,’ ‘privilege,’ or ‘advantage’ under the statute,” or, alternatively, that it could violate the First Amendment for a court to order Amazon to donate to Coral Ridge.

Avoiding having to rule on the statutory issue, the court of appeals went directly to Amazon’s constitutional defense, which it found to be valid.  The Supreme Court has frequently ruled that donating money, whether to a charity or a political cause, is expressive conduct protected by the First Amendment.  That’s the basis, for example, for the Court’s decision striking down various campaign finance reforms by Congress, such as the infamous Citizens United case.  Judge Wilson quoted Harris v. Quinn, 573 U.S. 616 (2014), a Supreme Court ruling stating that “no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support.”  The court found that this ruling “mapped on” to Amazon’s constitutional argument.

Coral Ridge argued that because Amazon patrons select the charities to which 0.5% of their purchases would be donated, they are the real donors, treating Amazon as a mere conduit for their donations.  But AmazonSmile makes clear in its application process that Amazon exercises judgment about which charities can participate, and specifically states that entities designated as “hate groups” by SPLC are disqualified.  “We have no problem finding that Amazon engages in expressive conduct when it decides which charities to support through the AmazonSmile program,” wrote the judge.

The court drew an analogy to the Supreme Court’s ruling in Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995), that the South Boston Allied War Veterans Council had a First Amendment right to exclude the Irish-American Gay, Lesbian & Bisexual Group of Boston from the St. Patrick’s Day Parade organized by the Council.  The Supreme Court ruled that the state could not require the Council to let GLIB march, as that would be imposing on the Council a message that they did not wish to include in their parade.  The Massachusetts Supreme Judicial Court had ruled that the Parade was a public accommodation and GLIB was entitled to participate, but the Supreme Court unanimously reversed that ruling to protect the free speech rights of the parade’s organizers.

“In the same way that the Council’s choice of parade units was expressive conduct,” wrote Judge Wilson, “so too is Amazon’s choice of what charities are eligible to receive donations through AmazonSmile.  Applying Title II in the way Coral Ridge proposes would not further the statute’s purpose of ‘securing for all citizens the full enjoyment of facilities described in the Act which are open to the general public.’”  Consequently, the court concluded that Coral Ridge’s proposed interpretation of Title II “would infringe on Amazon’s first Amendment Right to engage in expressive conduct and would not further Title II’s purpose,” so it affirmed Judge Thompson’s decision to dismiss Coral Ridge’s religious discrimination claim.

Judge Wilson was appointed to the Court by President Bill Clinton.  Joining his decision were Circuit Judge Britt Grant, appointed by President Donald Trump, and Senior Circuit Judge Gerald Tjoflat, appointed by President Gerald Ford.  Senior District Judge Thompson was appointed by President Jimmy Carter.

Federal District Judge Issues Injunction Against Tennessee Bathroom Warning-Sign Law

Posted on: July 11th, 2021 by Art Leonard No Comments

In May, Tennessee enacted a law intended to require operators of facilities with public restrooms who allow transgender people to use restrooms consistent with their gender identity to post a vividly colored large notice at the entrance to the restroom warning people about that policy.  The law went into effect on July 1.  On July 9, U.S. District Judge Aleta Trauger issued a preliminary injunction banning its enforcement while a lawsuit challenges its constitutionality in Bongo Productions v. Lawrence, 2021 U.S. Dist. LEXIS 128262 (M.D. Tenn., July 9, 2021).

Despite the lack of any reported incidents in Tennessee of problems due to transgender peoples’ public restroom usage, the Republican-controlled legislature, firmly enlisted in the current “red state” war against transgender people, passed H.B. 1182/S.B. 1224, which amends the state’s zoning laws regulating public property, to provide that any “public or private entity or business that operates a building or facility open to the general public and that, as a matter of formal or informal policy, allows a member of either biological sex to use any public restroom within the building or facility shall post notice of the policy at the entrance of each public restroom in the building or facility.”

The law requires that the notice be posted “in a manner that is easily visible to a person entering the public restroom” and must be “at least eight inches wide and six inches tall” with a red and yellow color scheme designed to attract notice, and must use the precise wording specified in the statute, with its reference to “biological sex.”

The ACLU represents Bongo Productions, a Nashville company that operates several coffeehouses and restaurants, one of which has a particular LGBT clientele and which employs several transgender people, and Sanctuary Performing Arts, which is described as “a performing arts venue, community center and safe haven located in Chattanooga” which was “founded by member of the transgender community” and which intends to operate a full-service café and thus will come under the requirements of the new law.  Both Bongo and Sanctuary already provide multi-user restrooms.  Under the zoning laws long in effect prior to the present controversy, any multiple-user restrooms have to be labeled for men or for women by words or symbols.  Sanctuary has not labeled their restrooms by gender, but will be required to do so once they open the full-service café.

The owners of these facilities argued that the new law unconstitutionally compels them to post signs and communicate messages that they object to and that many of their customers will object to.  They presented expert testimony on the unscientific and ambiguous terminology of the statute, with its reference to “biological sex,” which was sufficient to persuade Judge Trauger, who devoted several paragraphs of her opinion to the testimony of a professor from Vanderbilt University Medical Center, Dr. Shayne Sebold Taylor, who explained the complexities of human sexuality.  What seemed to most impress Judge Trauger was the evidence that asking a transgender man who is presenting as a man to use the women’s room or a transgender woman who is presenting as a woman to use the men’s room was likely to cause quite a commotion, exactly the kind of social disruption that the proponents of the legislation claim to be trying to forestall by the prescribed notices.

In order to get a preliminary injunction, plaintiffs have to show that they have standing to sue, that the controversy is ripe for judicial resolution, that they have a reasonable probability of winning their case on the merits, that they will suffer irreparable injury if the act is enforced and the government will not suffer irreparable injury if enforcement is blocked while the case is being litigated.

Judge Trauger was convinced that all the criteria were met, despite disingenuous arguments by the lawyers for the public officials who are being sued, the fire marshalls in charge of Codes enforcement and local district attorneys who would be responsible for enforcement activity.

Her opinion is really a delight to read.  For example, on the issue of standing, they argued that nobody had brought an enforcement action against the plaintiffs, and one of the local D.A.’s even told the press that he didn’t intend to enforce the statute.  “This might be quite a different case if each of the defendant officials had given the court a meaningful reason to expect that he will not enforce the Act,” she wrote.  “The defendants, however, seek to have it both ways – to pretend that no one knows how the Act will be enforced, despite the fact that, of course, they know, because they will be among the ones doing the enforcing, and they are simply keeping their plans to themselves.”  In a footnote, she noted that a Republican legislator had sought an opinion from the state’s attorney general about whether D.A. Funk could be subjected to disciplinary action or removal “for his apparent disinclination to enforce the Act” after news reports appeared stating that he would not enforce it.

As to the merits of the case, since the statute compels business owners to post signs with which they disagree, this is a content-based regulation of speech subject to strict scrutiny, which means the statute is presumed unconstitutional unless the state has a compelling interest and the law is narrowly tailored to avoid unnecessarily abridging freedom of speech.

Judge Trauger wrote that “there is simply no basis whatsoever for concluding that the Act is narrowly tailored to serve any compelling governmental purpose.  Although at least one key supporter of the Act in the General Assembly justified its requirements in relation to supposed risks of sexual assault and rape, there is (1) no evidence, in either the legislative record or the record in this case, that there is any problem of individuals’ abusing private bathroom policies intended to accommodate transgender and intersex individuals for that purpose and (2) no reason to think that, if such a problem existed, the mandated signs would address it.”

Even if there was a legitimate interest to “let patrons of a business know its bathroom policies – which the court finds doubtful – then that purpose could still be served by simply requiring businesses to disclose that information when asked or to keep it filed away somewhere accessible,” wrote the judge.  “There would certainly be no need to dictate the precise language required for the notice, the precise size and location of the disclosure, or that the sign have a red-and-yellow, warning-sign color scheme, as if to say: ‘Look Out: Dangerous Gender Expressions Ahead,’” concluding that there is “no plausible argument that this law would come anywhere close to surviving strict scrutiny.”

She also rejected the argument that the sign, which does not use the terms transgender or gender identity, was merely communicating non-controversial information.  “Courts, when considering First Amendment challenges, are permitted to exercise ordinary common sense to evaluate the content of a message in context to consider its full meaning, rather than simply robotically reading the message’s text for plausible deniability,” she wrote, asserting that “of course the signs required by the Act are statements about the nature of sex and gender and the role of transgender individuals in society.  Justice is blind, but the court does not have to play dumb.”

“On the current record,” wrote the judge, “the only way to argue that the message mandated by the Act is uncontroversial is to argue that the plaintiffs are simply lying about both the social realities they have observed and their own disagreement with the required message.  But the court sees no evidence whatsoever that the plaintiffs have failed to tell the truth about that or anything else.  To the contrary, the legislative history of the Act shows that it was devised, quite consciously and explicitly, as a direct response to social and political trends involving transgender people.  It is only now, in the context of litigation, that officials of the State suggest otherwise.”

The court concluded that the plaintiffs would suffer irreparable injury – a violation of their constitutional rights and potential harm to their businesses and the community they serve – if the public officials are free to enforce the statute.  “Because the plaintiffs’ evidence shows that the Act would be an invasion on private communities’ power to define themselves and their norms in accordance with their own consciences, the plaintiffs have more than carried their burden of showing that irreparable harm would occur absent an injunction.”  And, given the patent unconstitutionality of the statute, an injunction would not irreparably harm the state or damage the public interest.  “No legislature can enact a law it lacks the power to enact,” wrote Trager, “and the constraints on Tennessee’s power that come along with the U.S. Constitution were voluntarily assumed by the State of Tennessee by virtue of its entry into the federal system.”

She labelled the law a “brazen violation” of the concept that public officials cannot “prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”  She ordered defendants to “take no actions to enforce House Bill 1182/Senate Bill 1224.

Those who followed the campaign for marriage equality some years ago may remember that it was Judge Trauger, who was appointed to the Court by President Bill Clinton, who issued an order in 2014 that the state must recognize the same-sex marriage performed out of state for plaintiffs in an important marriage equality case.  She correctly predicted in her opinion then that the Supreme Court would eventually recognize a constitutional right to marry for same-sex couples.

 

 

Music Director Barred from Suing Catholic Church For Hostile Environment Harassment Under Anti-Discrimination Laws

Posted on: July 11th, 2021 by Art Leonard No Comments

A ten-judge bench of the Chicago-based U.S. Court of Appeals for the 7th Circuit ruled on July 9 by a vote of 7-3 that the religion clauses of the 1st Amendment of the U.S. Constitution give churches total immunity from hostile environment claims by their ministerial employees.  Demkovich v. St. Andrew the Apostle Parish, 2021 U.S. App. LEXIS 20410, 2021 WL 2880232 (7th Cir. en banc).

Rejecting a decision by a three-judge panel of the court that Sandor Demkovich, the gay former Music and Choir Director and Organist at St. Andrew the Apostle Parish in Calumet City, Illinois, could bring a hostile environment claim against the church under the Civil Rights Act of 1964 and the Americans with Disabilities Act, the en banc court held that allowing such claims would violate the religious autonomy of the church protected by the religion clauses of the 1st Amendment.  Judge Michael Brennan, appointed by President Donald Trump, wrote the court’s opinion.

The 7th Circuit is among the most Republican-dominated of the federal appeals courts.  Of the eleven active members of the Court, eight were appointed by Republican presidents (four by Trump).  President Joseph Biden’s first appointee to the court, Judge Candace Jackson-Akiwumi, was only recently confirmed by the Senate and did not participate in this case.  One of President Trump’s appointees recused himself, and a senior (retired) judge appointed by Ronald Reagan, Joel Flaum, who was the dissenter on the three-judge panel, was entitled under 7th Circuit rules to participate.

Judge David Hamilton, appointed by Barack Obama, wrote the panel decision and the dissenting opinion, joined by Judge Ilana Rovner, a moderate appointed by George H. W. Bush in 1992, who was the other member of the three-judge panel majority.   Judge Diane Wood, appointed by Bill Clinton, joined the dissent.

Demkovich was hired in September 2012.  His supervisor was Reverend Jacek Dada, a priest who is the church’s Pastor.  According to Demkovich, who has various physical disabilities, Dada was constantly subjecting him to verbal abuse because of his sexual orientation and his disabilities, adversely affecting his physical and mental health.  In 2014, after Illinois had legislated to allow same-sex marriages, Demkovich let the church know that he planned to marry his same-sex partner.  Dada told him that he had to resign from the church because his marriage would violate Catholic doctrine.  When Demkovich refused to resign, Dada fired him.

Demkovich sued the St. Andrew church and the Archdiocese of Chicago under Title VII of the Civil Rights Act and the Americans with Disabilities Act, claiming that his discharge was unlawful discrimination because of his sexual orientation and disabilities.  The church moved to dismiss the case, citing the “ministerial exception” under the 1st Amendment, and the district court granted the motion, determining that Demkovich was a “ministerial employee” under the Supreme Court’s 2012 decision, Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 565 U.S. 171.  In Hosanna-Tabor, an ADA case involving a school teacher, the Supreme Court ruled that it would violate the 1st Amendment to allow a ministerial employee to challenge their discharge in a federal court, because religious institutions have an absolute right under the Free Exercise Clause to decide whom to employ as ministers without any interference from the courts.  Under Hosanna-Tabor, the district court’s decision to dismiss Demkovich’s unlawful discharge claims was undoubtedly correct.

Demkovich came back to court with an amended complaint, alleging that he was unlawfully subjected to a hostile environment by Dada, his supervisor, because of his sexual orientation and disabilities.  Again, the church invoked the “ministerial exception” and moved to dismiss. District Judge Edmond E. Chang decided that Hosanna-Tabor, a discharge case, did not necessarily apply to a hostile environment claim, drawing a distinction, as the San Francisco-based 9th Circuit Court of Appeals had previously done in a similar situation, between tangible and intangible employment actions, finding that the exception applied only to the former.

Judge Chang held that the proper approach in a hostile environment case was to balance the church’s religious freedom concerns with the employee’s statutory anti-discrimination rights, taking into account the nature of the employer’s conduct and the reasons for it.  Based on this “balancing of rights,” Chang dismissed the sexual orientation claim but refused to dismiss the disability claim, distinguishing between hostility that could be motivated by religious doctrine and hostility that had no basis in religious doctrine.  Demkovich v. St. Andrew, 343 F. Supp. 3d 772 (N.D. Ill. 2018).

But Chang then certified a request by the church to have the court of appeals consider the issue before the case went further.  Last summer, the Supreme Court issued another ministerial exception decision, Our Lady of Guadalupe School v. Morrissey-Berru, 140 S. Ct. 2049 (2020), which took a broader view of the definition of a ministerial employee in the context of religious schools. This case also involved two teacher discharges, allegedly in violation of the ADA and the Age Discrimination in Employment Act.

The three-judge 7th Circuit panel ruled in 2020 that Demkovich should be allowed to litigate both of his hostile environment claims, finding that the reasoning behind Hosanna-Tabor did not require a dismissal in a case such as this, following the lead of the 9th Circuit.  See 973 F. 3d 718 (7th Cir. 2020).  The church then petitioned the 7th Circuit for rehearing en banc.  The 7th Circuit vacated the panel decision, heard arguments before a panel of 10 judges earlier this year, and issued its July 9 decision holding that Judge Chang should have dismissed the case completely.

In his opinion for the court, Judge Brennan, while acknowledging that the Supreme Court’s two precedents, Hosanna-Tabor and Guadalupe, both involved discharges of religious school teachers, found various statements in those decisions that he said could be construed to have embraced more general principles that the courts should not be interfering in any personnel-related disputes between religious institutions and their ministerial employees.  He drew two “principles” from the Supreme Court’s decisions: “The protected interest of a religious organization in its ministers covers the entire employment relationship, including hiring, firing, and supervising in between.  Second, we cannot lose sight of the harms – civil intrusion and excessive entanglement – that the ministerial exception prevents.  Especially in matters of ministerial employment, the First Amendment thus ‘gives special solicitude to the rights of religious organizations,’” quoting from Hosanna-Tabor.

Brennan pointed out that in a hostile environment case, discovery could be wide-ranging, and would involve an inquiry into the reasons why, in this case, the priest in charge was treating the music director – both ministerial employees because of the role they play in the religious life of the church – in a particular way. To the majority of the en banc court, this would raise the specter of judicial interference in matters of religion, regardless whether the claim arose under Title VII or the ADA.  The court found that a central theme of the Supreme Court and lower federal court rulings involving discrimination claims by ministerial employees was that churches must enjoy autonomy in making personnel decisions about their ministerial employees, whether they could be characterized as tangible or intangible actions.

“Demkovich’s hostile work environment claims challenge a religious organization’s independence in its ministerial relationships,” wrote Brennan.  “A judgement against the church would legally recognize that it fostered a discriminatory employment atmosphere for one of its ministers.”  While the employment discrimination statutes have been interpreted to hold employers liable for fostering a discriminatory employment atmosphere, Brennan wrote that the Supreme Court’s ministerial exception cases “teach that ministerial employment is fundamentally different.”  And, he continued, “Just as a religious organization ‘must be free to choose those who will guide it on its way,’ so too must those guides be free to decide how to lead a religious organization on that journey,” once again quoting from the Hosanna-Tabor opinion.

Judge Hamilton’s dissent began by noting that the Supreme Court’s ministerial exception cases all involved discharge decisions, not hostile environment claims, and that federal circuit court and state courts are “split on the question before us,” noting not only the 9th Circuit’s prior rulings, but also several district court decisions.  He insisted that “the majority’s rule draws an odd, arbitrary line in constitutional law,” and argued that “the line between tangible employment actions and hostile environment fits the purposes of the ministerial exception.”

He accused the majority of departing “from a long practice of carefully balancing civil law and religious liberty,” and pointed out the severe consequence of holding that religious employers would be immune from any liability for mistreating their employees under anti-discrimination laws.  “We know that people who exercise authority within churches can be all too human,” he wrote.  “Casebooks and news reports tell us of cases of sexual harassment by ministers, sometimes directed at parishioners, sometimes at non-ministerial employees, and sometimes at other (typically less senior) ministers.  In briefs and oral argument, defendants have acknowledged that a religious employer could be held civilly liable for a supervisor’s criminal or tortious conduct toward a ministerial employee. . .  Such cases would not violate the supervisor’s or the employer’s First Amendment rights.  If criminal or tort cases do not, then it is hard to see why a statutory case based on the same conduct would necessarily violate the First Amendment, whether or not the supervisor claims a religious motive.”

“The hostile environment claims before us present a conflict between two of the highest values in our society and legal system: religious liberty and non-discrimination in employment,” wrote Hamilton.  “The Supreme Court has not answered this question, nor does the First Amendment itself.  Circuits and state courts are divided.  For the reasons explained above and in the panel majority, I submit that the majority’s absolute bar to statutory hostile environment claims by ministerial employees is not necessary to protect religious liberty or to serve the purposes of the ministerial exception.”

The next step for Demkovich could be to file a petition for review with the Supreme Court.  Depending on the details of his factual claims, he might try to pursue a state court tort suit for intentional infliction of emotional distress against Jacek Dada individually, but it is possible that it would be barred by the state statute of limitations, since all the conduct at issue took place in 2012-2014.

 

Iowa Supreme Court Reverses Gay Workers’ Compensation Commissioner’s Jury Verdict and $1.5 Million Damage Award

Posted on: July 3rd, 2021 by Art Leonard No Comments

Christopher J. Godfrey, an out gay man who served as Iowa’s Workers Compensation Commissioner beginning in 2006, won a jury verdict in 2019 of $1.5 million dollars on claims of sexual orientation discrimination and retaliation by Governor Terry Branstad, Branstad’s legal counsel, and the state government.  The jury found a violation of the state’s statutory ban on sexual orientation discrimination in employment, and a violation of Godfrey’s constitutional due process rights.  But on June 30, the Iowa Supreme Court reversed the jury verdict in Godfrey v. State of Iowa, 2021 WL 2671324, 2021 Iowa Sup. LEXIS 92, finding that the trial judge should have ruled that the defendants, now-former Governor Branstad, his Legal Counsel Brenna Findley, and the State of Iowa were entitled to judgment as a matter of law, and that the judge should not have submitted the case to the jury for decision. Justice Christopher McDonald wrote the opinion for the court.

Godfrey was appointed to a full six-year term as Commissioner of Workers Compensation by Governor Chet Culver, a Democrat, and was confirmed unanimously by the state Senate in 2009.  He was openly gay at the time.  He had previously received interim appointments to that position beginning in 2006 from prior Governor Tom Vilsack, also a Democrat who served as Secretary of Agriculture in the Obama Administration (a position to which he was appointed again this year by President Biden), and Godfrey was reappointed to an interim vacancy as Commissioner by Governor Culver, before receiving the full-term appointment.

In 2010, Republican Terry Branstad, a former Iowa governor who had taken a position as a university president, came out of political retirement and defeated Governor Culver’s bid for reelection.  As was customary with a change of administration, his staff notified all Commissioners who had been appointed by Branstad’s Democratic predecessors to submit letters of resignation, leaving the decision to the governor-elect whether to continue them in office.

Godfrey refused to submit such a letter, telling Governor-Elect Branstad (in the only in-person meeting he ever had with Branstad) that he was appointed and confirmed for a full six-year term and intended to serve the full term through 2015.  Under Iowa law, Governor Branstad could not replace Godfrey on his own initiative, but Godfrey could be removed by the Executive Council of the state, made up of the governor and several other top executive branch officials, for causes specified by statute which were not present in this situation.  So Branstad was stuck with Godfrey if Godfrey would not resign.

Upon taking office, Branstad turned his attention to other matters, but at the end of the legislative session on June 30, 2011, he returned to the Godfrey situation, having received complaints about Godfrey’s perceived “anti-business” stance from the leadership of the Iowa Association of Business and Industry (ABI), the state’s chamber of commerce, who told Branstad that the Commission was creating an adverse climate for business in the state.  In consultation with his staff, Branstad determined that he could reduce Godfrey’s salary, hoping that would induce him to quit.  State law specified a salary range for Commissioners and Godfrey was being paid at the top of the range at $112,070.  Branstad decided to reduce his salary to the bottom of the range, $73,250, if he rejected another request to resign.  Two members of the governor’s staff met with Godfrey to reiterate the governor’s demand for his resignation, which Godfrey refused.  He was then told the Governor had decided to reduce his salary to the bottom of the statutory range.

Godfrey quickly let others know about his salary reduction, contacted the attorney general seeking possible intervention, and contacted legislators to see if they would intervene.  Senator William Dotzler phoned one of Branstad’s aides, saying “you guys might want to consider the action you’re taking on Chris Godfrey.  He is an openly gay man, and that can be an issue down the road.”  When Godfrey announced publicly the next day that he was being subjected to sexual orientation discrimination, Branstad claimed that he, the sole decision-maker in reducing Godfrey’s salary, had not known that Godfrey was gay until the day after the salary reduction was communicated to Godfrey, when Godfrey leveled his public accusation.

Godfrey sued the State, Branstad and other executive branch officials in January 2012, asserting claims under the Iowa Civil Rights Act, which bans employment discrimination because of sexual orientation, and the Iowa Constitution.  Before the case came to trial, various pretrial motions came up to the Supreme Court involving immunity claims by particular state officials and the question whether Godfrey could sue for damages against Branstad and other officials on his constitutional claims.  One question that did not come up in those proceedings was whether the Iowa Civil Rights Act’s ban on employment discrimination and retaliation applied to a state agency commissioner who was appointed by the governor and confirmed by the Senate for a fixed term.

Much of the focus of the trial, which is described in great detail in Justice McDonald’s opinion, went to the question whether Branstad personally knew that Godfrey was gay when he took action to pressure Godfrey to resign by reducing his salary.  Branstad insisted that he had not known, but evidently the jury did not believe him, relying on testimony from numerous witnesses about how Godfrey’s sexual orientation was known and reported in the press when he was appointed by Vilsack and Culver, was known to the Senators who voted to confirm him (and even came up at one point in a confirmation hearing), was known by the lieutenant governor (now Governor Reynolds since Branstad’s retirement to become Ambassador to China in the Trump Administration), who had actually been introduced to Godfrey’s husband, and was known by members of Branstad’s staff and the staff of the ABI.

Godfrey also put in plenty of evidence about the anti-LGBT stance of the Iowa Republican Party, about the vicious campaign against members of the Iowa Supreme Court who were denied retention by the voters after they had unanimously ruled in favor of same-sex marriage under the state constitution, about the party’s platform in Branstad’s election campaign seeking to amend the constitution to overrule the court’s marriage decision and to amend the Civil Rights Act to remove sexual orientation and gender identity as prohibited grounds of discrimination.  There was also substantial evidence, which was not contested by the defendants, about the emotional distress that Godfrey suffered as a result of the pressure campaign to get him to resign.

At the end of the trial, the defendants moved for judgment as a matter of law, but Jasper County District Judge Brad McCall denied the motion.  The jury awarded Godfrey $500,00 in emotional distress damages on his claims for sexual orientation discrimination and retaliation against the state, and $1 million in emotional distress damages against Governor Branstad and one of his aides on Godfrey’s constitutional claims.  The defendants appealed to the state Supreme Court.

The court concluded that the trial record showed no direct evidence that Branstad was personally aware that Godfrey was gay.  Branstad had served as governor before Vilsack.  When he left office, he became president of Des Moines University, an “osteopathic school of medicine,” and, wrote Justice McDonald, “At the time he was hired, Branstad committed to the trustees of the university that he would stay out of and away from politics while serving in the position.”  He claimed that he paid no attention to whom Vilsack or Culver was appointing as Commissioners, and that he was personally unaware of Godfrey until during his campaign to defeat Culver for re-election, when ABI officials first complained to him about Godfrey’s anti-business bias, but that they did not mention that Godfrey was gay.  Indeed, although he was surrounded by people who knew Godfrey was gay, Branstad swore that the first he heard of that was when Godfrey accused him of sexual orientation discrimination after the salary reduction was communicated to Godfrey.

The court decided that all of Godfrey’s evidence on this point was circumstantial, none of it directly showing that Branstad knew Godfrey was gay, and therefore, since Branstad was the sole decision maker on dealing with Godfrey, the case should have been dismissed as a matter of law for lack of evidence of discriminatory motive.  The court also rejected the constitutional due process claim, finding no denial of Godfrey’s procedural due process rights.

Dissenting Justice Brent Appel objected to the court substituting its judgment for that of the jury.  He agreed with the court’s disposition of the constitutional claim, but pointed out that under the Civil Rights Act a plaintiff can win a discrimination case based on circumstantial evidence, and it was up to the jury to weigh all the evidence and decide whether the defendants violated the statute.  Appel conceded that it was possible that a jury could find for Branstad, but taking account of all the evidence, it was also possible that a reasonable jury could decide for Godfrey, and it was inappropriate for an appellate court to make that determination.  Contested questions of fact are supposed to be decided by juries, unless it would be impossible for a reasonable jury to resolve such questions in favor of the plaintiff.  Appel argued that the evidence about the Republican Party’s anti-LGBT stance was relevant to the jury’s determination of the motive for attempting to force Godfrey from his position.

Chief Justice Susan Christensen and Justice Matthew McDermott, while also agreeing with the majority as to the ultimate outcome of the case in favor of defendants, argued in an opinion by McDermott that the claims under the Civil Rights Act should have been dismissed on the ground that Godfrey, as an appointed and Senate-confirmed officer of the state government, was not an “employee” within the meaning of the Act, and thus that the Act’s employment discrimination provisions did not apply to him.

Godfrey did not serve out his full term as Commissioner, eventually resigning to take a position in the Obama Administration at the Employees’ Compensation Appeals Board (ECAB), where he continued to serve until January 20, 2021, when he was sworn in to his current position as Director of the Office of Workers’ Compensation Programs in the U.S. Department of Labor.

Godfrey is represented by Roxanne Conlin, Devin Kelly, and Jean Mauss of Roxann Conlin & Associates, Des Moines.