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9th Circuit Rejects Parents & Students Lawsuit Against Trans-Friendly Oregon School District

Posted on: February 18th, 2020 by Art Leonard No Comments

A unanimous three-judge panel of the San Francisco-based U.S. Court of Appeals for the 9th Circuit has affirmed a ruling by U.S. District Judge Marco A. Hernandez, Jr., that the Dallas School District No. 2 did not violate the legal rights of parents and students who objected to the District’s policy allowing transgender students to use facilities consistent with their gender identity.  Parents for Privacy v. Barr, 2020 Westlaw 701730 (February 12, 2020).

The decision was made by a panel comprised entirely of judges appointed by Democratic presidents.  Senior Judge A. Wallace Tashima, who was appointed by Bill Clinton, wrote the court’s opinion. The other members of the panel were Susan P. Graber, also appointed by Clinton, and John B. Owens, who was appointed by Barack Obama.

The school district adopted its policy in response to a request from a transgender student, identified in the court’s opinion as Student A, who was identified as female at birth but announced in September 2015 that he identified as a boy and asked school officials to let him use the boys’ bathroom and locker room.  This was before the Obama Administration sent out its letter to all school districts advising that transgender students have a legal right to such access, advice that the Trump Administration disavowed shortly after taking office early in 2017.

In response to Student A’s request, the District created a “Student Safety Plan” for Student A and any other transgender student who might make such a request in the future, “in order to ensure that Student A could safely participate in school activities,” wrote Judge Tashima.  Under this Plan, Student A and any other transgender student could “use any of the bathrooms in the building to which he identifies sexually.”

The Plan also provide that all school staff would receiving training and instruction regarding Title IX, the federal statute that provides that schools receiving federal funding must afford equal educational opportunity to all students, regardless of their sex.  The Plan also provided that the phys ed teacher would be the first to enter and leave the locker room, so the teacher would be present at all times that students were using that facility, and that Student A’s locker would be in direct line of sight of the coach’s office, so the coach would see if anybody interfered with Student A.

The plaintiffs in this lawsuit claim that when Student A began using the boys’ locker room and changing clothes “while male students were present,” the cisgendered boys were caused “embarrassment, humiliation, anxiety, intimidation, fear, apprehension, and stress,” since they had to change their clothes in the presence of somebody whose birth certificate said they were female.  The presence of privacy stalls in the bathrooms was deemed insufficient by plaintiffs, because they had gaps through which “partially unclothed bodies” could “inadvertently” be seen, and they complained that a single-user bathroom was “often inconvenient or considered inferior because it lacked a shower.”

In other words, they were arguing that the transgender student should have to use the inconvenient and inferior facility rather than them, due to their “stress” and “fear” around the possibility of encountering Student A while using these facilities.

The parents who joined as plaintiffs claimed that the school’s policy interfered with some parents’ “preferred moral and/or religious teaching of their children concerning modesty and nudity,” wrote Judge Tashima.  “In addition, several cisgender girls suffered from stress and anxiety as a result of their fear that a transgender girl student who remains biologically male would be allowed to use the girls’ locker room and bathroom.”  They found inconvenient the idea that they would have to resort to changing in the nurse’s office, which was “on the other side of the school,” to avoid such exposure.

Students opposing the plan circulated a petition, but the principal “confiscated” the petitions and ordered students to discontinue that activity, and the District stood firm behind its policy.

The complaint alleged violations by the U.S. Education and Justice Departments of the Administrative Procedure Act, Title IX, the Religious Freedom Restoration Act, and the 1st and 14th Amendments of the Constitution, but the court agreed with Judge Hernandez that the federal defendants were not properly in the case because they had nothing to do with the District’s decision to adopt the policy.

The plaintiffs asserted claims against the District under the 1st and 14th Amendments, charging interference with the privacy rights of cisgender students and interference with the parents’ liberty interest in raising their children, as protected by the Due Process Clause.   They also raised claims against the District under Title IX and Oregon’s public accommodations and education laws.

Judge Tashima first tackled the plaintiffs’ privacy arguments, concluding that plaintiffs “fail to show that the contours of the privacy right protected by the Fourteenth Amendment are so broad as to protect against the District’s implementation of the Student Safety Plan.”  He said that because the Plan provides “alternative options and privacy protections” to students who did not wish to be exposed to Student A in the shared facilities, no student was forced into such a situation, even if the alternative options “admittedly appear inferior and less convenient.”

He also rejected the argument that the Plan created a “hostile environment” for cisgender students, in violation of Title IX.  Judge Hernandez found that the Plan does not discriminate against any student because of his or her sex, since its rules apply across the board to all students, and noted that decisions by other courts had all agreed that “the presence of transgender people in an intimate setting does not, by itself, create a sexually harassing environment that is severe or pervasive,” and thus fails to meet the standard to find a statutory violation.  The 9th Circuit panel stated agreement with Judge Hernandez’s conclusion, rejecting the plaintiffs’ argument that because Title IX regulations authorize schools to have single-sex facilities separately for boys and girls, the schools should be required to maintain such segregation.  These regulations were issued to make clear that a school would not be violating Title IX if it had separate facilities for boys and girls, provided they were equal facilities, but not to require schools to exclude transgender students from using the facilities.

The district court rejected the argument that the Plan went so far as to violate the parents’ constitutional rights, pointing out that the Supreme Court and other federal courts have rejected claims by parents that they were entitled to control the school curriculum or policies in order to “protect” their children from influences feared by the parents.  “In sum,” wrote Tashima, “Plaintiffs fail to cite any authority that supports their asserted fundamental Fourteenth Amendment parental right to ‘determine whether and when their children will have to risk being exposed to opposite sex nudity at school’ and ‘whether their children, while at school, will have to risk exposing their own undressed or partially unclothed bodies to members of the opposite sex’ in ‘intimate, vulnerable settings like restrooms, locker rooms, and showers.’”

The court also rejected the parents’ free exercise of religion claim that they had a right to shield their children from exposure to views that the parents would consider immoral on religious grounds.  The court referred to Supreme Court precedents rejecting free exercise claims to be exempt from complying with religiously neutral and generally applicable policies that don’t specifically target religious beliefs.  “Because the District’s Plan did not force any Plaintiff to embrace a religious belief and did not punish anyone for expressing their religious beliefs,” wrote Tashima, “the district court concluded that the Plan is ‘neutral and generally applicable with respect to religion,’ and therefore did not violate Plaintiffs’ First Amendment rights,” to which the 9th Circuit panel signified its agreement.  The court found that any constitutional claim against the Plan would be defeated under the appropriate “rational basis” standard of judicial review, finding that it served a legitimate governmental interest of enabling the transgender student to enjoy equal access to the District’s facilities.

The court concluded that the District’s “carefully-crafted Student Safety Plan seeks to avoid discrimination and ensure the safety and well-being of transgender students,” and that it did not violate Title IX or any constitutional rights of the parents and cisgender students.  Thus, the court upheld Judge Hernandez’s decision to grant the defendants’ motion to dismiss the lawsuit.

This result is consistent with rulings by several other courts, including a similar ruling by the Philadelphia-based 3rd Circuit Court of Appeals that was denied review by the Supreme Court last year.  However, the Supreme Court is considering petitions in several other cases presenting the question whether to re-evaluate its long-standing precedent that there is no constitutional religious free exercise exemption from complying with religiously-neutral, generally applicable government policies, and several members of the Court have already signaled, in concurring and dissenting opinions, their openness to take that step.  If the Court grants review in any of those cases, or this one if the plaintiffs file a petition for review, an important brick in the wall of separation between church and state may be breached.

Meanwhile, the plaintiffs could file a petition for rehearing before an expanded panel of the court.  In the 9th Circuit, if a majority of the 29 judges favor such a rehearing, it would go to a panel of eleven members of the Circuit Court.

The court received nine amicus briefs, none of which supported the plaintiffs’ position!  The American Civil Liberties was permitted to argue on behalf of the rights of transgender students.  All the major LGBT and transgender rights organizations were represented by amicus briefs, as well as a host of professional associations in the fields of medicine, education, and civil rights.  The usual opponents of LGBT rights seem to have ignored this appeal, perhaps anticipating the result as predictable, given the liberal reputation of the 9th Circuit, but it is worth pointing out that Donald Trump has appointed a third of the current active judges on the 9th Circuit, and it was just the luck of the draw that this case drew a panel that included none of his appointees.  An expanded panel of eleven would necessarily include some of Trump’s appointees.

 

9th Circuit Denies En Banc Review in Idaho Transgender Prisoner Case in a Sharp Political Divide That Foreshadows Supreme Court Review

Posted on: February 12th, 2020 by Art Leonard No Comments

Last August 23, a three-judge panel of the San Francisco-based U.S. Court of Appeals for the 9th Circuit upheld a trial judge’s order that the Idaho Corrections Department provide gender affirmation surgery for a transgender inmate, Adree Edmo.  The panel, composed of two circuit judges and a district judge all appointed by President Bill Clinton, found that prison officials’ denial of the procedure constituted “cruel and unusual punishment” in violation of the 8th Amendment of the Bill of Rights.  On February 10, the full 29-judge 9th Circuit announced that it had voted to deny Idaho’s petition for rehearing of the case by a larger panel, referred to as “en banc” rehearing.  In the 9th Circuit, an en banc panel would have eleven judges.  Edmo v. Corizon, Inc., 2020 Westlaw 612834, 2020 U.S. App. LEXIS 4107.

This vote effectively adopted as circuit precedent the panel ruling that a transgender inmate suffering from severe gender dysphoria is entitled to gender confirmation surgery at the state’s expense when credible medical experts have testified that the procedure is necessary treatment for the inmate’s serious medical condition.  This contradicts rulings over the past several years by the 1st, 5th, and 10th Circuits, all of which were denied review by the Supreme Court.  Idaho will ask the U.S. Supreme Court to resolve this circuit split, and the Court is likely to agree to take the case.

The denial of review was by no means unanimous.  It revealed a sharp political split on the huge 9th Circuit, which has 20 senior status (semi-retired) judges as well as 29 actively serving.  Judges in senior status ordinarily do not participate in Circuit votes on petitions for en banc review, but they may participate in discussing the petition under Circuit rules, and two of the senior status judges, Diarmuid O’Scannlain (appointed by Ronald Reagan) and Carlos Bea (appointed by George W. Bush), joined with nine of the active duty judges (all appointed by either George W. Bush or Donald J. Trump) in expressing their dissent in three separate dissenting opinions, one written by O’Scannlain.  None of the sixteen active duty judges appointed by Bill Clinton or Barack Obama voted to grant the petition.  Four of Trump’s appointees refrained from voting for the petition, as did one of Bush’s appointees.  (All 9th Circuit judges appointed before Bill Clinton became president are now on senior status, fully retired, or deceased.)

It is noteworthy that with the recent seating of Lawrence Van Dyke, who joined two of the dissenting opinions, Trump has appointed ten of the 29 active judges in the first three years of his term.  There are no 9th Circuit vacancies for him to fill at present.

Judge O’Scannlain’s opinion, the lengthiest of the three, was joined by eight other judges.  In his introduction, he said that the panel’s decision was “as unjustified as it is unprecedented,” criticizing the panel for substituting “medical conclusions of federal judges for the clinical judgments of prisoners’ treating physicians, “ as “redefining” the “deliberate indifference standard” adopted by the Supreme Court for determining when a denial of medical treatment violates the 8th Amendment, and “constitutionally enshrining precise and partisan treatment criteria in what is a new, rapidly changing, and highly controversial area of medical practice.”

The three-judge panel in this case produced a lengthy, detailed opinion, which turned heavily on the panel’s endorsement of trial judge B. Lynn Winmill’s conclusion that guidelines published by the World Professional Association for Transgender Healthcare (WPATH) are the “gold standard” that effectively define the minimally acceptable level of care for transgender inmates under the 8th Amendment.  The WPATH standards list six criteria for determining whether gender confirmation surgery is indicated for a particular transgender individual.  The prison doctors involved in the decision to deny the procedure to Edmo concluded that two of the six were not fulfilled.  Edmo’s expert witnesses, both involved with devising the most recent edition of the  WPATH standards based on their extensive experience in treating transgender individuals, testified that all six criteria were met.

Perhaps the most crucial difference between the experts was the standard requiring that the individual have had “12 continuous months of living in a gender role that is congruent with their gender identity,” seen as important because of the irreversible nature of the surgical procedure.  The prison doctors took the position that this can only be fulfilled by living in that gender role in civilian society, especially where the inmate’s projected date of release is relatively soon after such a procedure would take place.  They argued that the pre-surgical experience is a crucial part of the individual’s gender-role transition, and is not really possible in a prison context. Their view would effectively mean that such a surgical procedure would never be available for a transgender inmate unless they had lived in the gender role consistent with their gender identity for at least 12 months before they were incarcerated.

By contrast, the position of the WPATH experts is that transgender inmates can fulfill this requirement by time spent living that gender role while incarcerated.  The WPATH guidelines assert that the same criteria can apply to inmates as apply to civilians.

Judge O’Scannlain heavily criticized the trial court and panel for having disparaged the testimony of the prison doctors and placed their reliance totally on Edmo’s experts.  O’Scannlain pointed out that Edmo’s experts lacked relevant experience of dealing with gender dysphoria treatment issues in a prison context.  He pointed out that WPATH, self-described as a professional association, also sees itself as an advocacy group, that some of the members of the body that drafted and approved the standards are not doctors, thus reflecting that the standards are not solely based on medical expertise, and he argued that federal courts, while treating the WPATH standards as an important source of information in transgender cases, have not treated WPATH’s guidelines as dispositive or as definitely defining the minimal constitutionally-required standard of treatment.

He also pointed out that, despite the prison doctor’s concern about Edmo’s lack of 12 months real-world experience living as a woman, the doctor had not determined that Edmo should permanently be denied the procedure, but rather that she was not ready for it in light of her other medical and psychological issues but might be in the future.

In support of his position concerning the WPATH standards, O’Scannlain cited decisions by the 1st, 5th and 10th  Circuit Courts of Appeals, all of which have refused to find an 8th Amendment violation, and all of which have noted that the WPATH guidelines are “controversial.”  Furthermore, in recent years the Supreme Court had denied petitions to review these circuit court decisions.

O’Scannlain seemed most perturbed by the panel’s characterization of the conduct of Edmo’s treating physician and the committee members with whom he had consulted as “deliberate indifference” to Edmo’s serious medical condition.  He noted the extensive contact with Edmo, the provision of hormones and psychological therapy, and Edmo’s own testimony that the hormone treatment had relieved her gender dysphoria to some extent.

He also observed that the Supreme Court has never held that the level of prison care is unconstitutional when qualified medical experts disagree about whether the treatment sought by the inmate is necessary.

Another less lengthy but no less pointed dissent was written by Patrick Bumatay, a Trump appointee (and an out gay man) who was seated on the circuit court just last year.  Six of the circuit judges joined his dissent, five in whole and Trump-appointee Daniel Collins in part.

Bumatay, an “originalist,” insisted that the court must identify the original meaning of the 8th Amendment – its meaning when it was adopted as part of the Bill of Rights in 1791 – to interpret it today.  Although the Supreme Court as a whole has not endorsed such “originalism” as part of constitutional interpretive doctrine, several members of the Court, including Trump’s two appointees, are avowed originalists.

Referring to 18th century sources for the meanings of “cruel” and “unusual,” Bumatay cites opinions by originalist Supreme Court justices quoting 18th century dictionaries, which define “cruel” as “pleased with hurting others; inhuman, hard-hearted, void of pity; wanting compassion; savage; barbarous; unrelenting” and noting more recent sources describing cruel punishments as “inhumane” and involving the “unnecessary and wanton infliction of pain.”  “Unusual” was defined in the 18th century as something that ran contrary to longstanding usage or custom, or that had long fallen out of use.  He noted continuing controversy over whether “punishment” under the 8th Amendment is limited to the sentence imposed by courts upon conviction, or would also extend to the treatment of incarcerated convicts.  The weight of Supreme Court precedent, over vigorous dissents by Justice Clarence Thomas, has fallen on the later view.

In light of these “originalist” meanings, he argued, “Idaho’s actions are far from a constitutional violation based on the clause’s text and original meaning.  Idaho’s actions simply do not amount to the ‘barbarous’ and ‘inhuman’ treatment so out of line with longstanding practice as to be forbidden by the Eighth Amendment.”  For one thing, with one recent exception in California, no transgender inmate has been given gender confirmation surgery while incarcerated, and the denial of en banc review in this case makes the 9th Circuit the only court of appeals that has approved a final order to provide such treatment, so it can hardly be described as “unusual” for a transgender inmate to have to forego this procedure while incarcerated.  Thus, this is not “unusual.”  And, as had O’Scannlain, Bumatay argued that the present WPATH guidelines, adopted in 2011, do not represent a consensus of the medical profession.  They are, by their own terms, described as “evolving,” and have not been treated as definitive by the federal agency administering Medicare and Medicaid “due to inadequate scientific backing.”

Bumatay and O’Scannlain thus joined with other federal circuit judges who have accepted the arguments of states’ attorneys in inmate cases that gender affirmation surgery remains a novel and controversial procedure within the medical community.  Advocates for transgender people have strenuously disagreed, and have been successful in recent litigation seeking coverage for such procedures under state employee health care programs, Medicaid, and private insurance policies challenged under the Obamacare anti-discrimination provision.  Numerous federal and state judges have accepted the argument that such procedures are now part of accepted medical practice and reject categorical exclusions from coverage for such procedures.  Even the U.S. Tax Court has weighed in, finding that transgender people can treat the costs of gender confirmation surgery as deductible medical expenses, finding that this can be a necessary treatment for a serious medical condition, rejecting the IRS’s argument that it is nondeductible “cosmetic” surgery.

Contrary to the dissenters here, the overwhelming majority of the 9th Circuit judges did not vote to grant en banc review and, while not expressing their views in writing, obviously were willing to let stand the panel’s treatment of the issues, which now becomes binding precedent on all the federal courts in the states of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.

In the second part of his dissenting opinion, Bumatay argues that the panel decision is inconsistent with the standards the Supreme Court has set under the 8th Amendment.  He characterizes what the panel has done as effectively reducing the test to one of medical malpractice, even though the Supreme Court has said that medical malpractice does not by itself equate to a constitutional violation.  “Deliberate indifference” requires a higher showing by the plaintiff.  Bumatay joined O’Scannlain in rejecting the idea that federal judges should be making medical judgments and substituting their judgments about appropriate treatment for those of prison medical personnel.

Judge Daniel Collins joined only the second part of Bumatay’s opinion, abstaining from signing on to the “originalism” analysis.  He wrote a brief separate dissent, emphasizing his view that the district court and the 9th Circuit panel “have applied standards that look much more like negligence than deliberate indifference.  Whether Dr. Eliason [Edmo’s prison doctor] was negligent or not (a question on which I express no opinion),” he continued, “his treatment decisions do not amount to ‘cruel and unusual punishment,’ and we have thus strayed far from a proper understanding of the 8th Amendment.”

Idaho’s determined defense of this case and its repeated requests to stay the lower court rulings as it appealed each step leaves no doubt that it will ask the Supreme Court to review the ruling.  They have several months to file a Petition, which might not be considered by the Court until the beginning of their October 2020 Term, since the Court waits until responses and replies to Petitions have been filed before considering it in conference.  Assuming that Idaho’s Attorney General’s Office, like those of most states, would routinely ask the Court to extend time to file the petition, it would not likely be filed before the summer and thus not ready for conferencing before the Court concludes its current term late in June.

 

Federal Court in Trans Military Case Refuses to Delay Discovery Further

Posted on: February 10th, 2020 by Art Leonard No Comments

On Friday, February 7, US District Judge Marsha Pechman issued yet another in a series of Orders on discovery in Karnoski v. Trump, 2020 U.S. Dist. LEXIS 21813 (W.D. Wash.), one of the four challenges to the constitutionality of Trump’s transgender military service ban in its current incarnation, referred to as the Mattis Plan.

Pechman, backed up by a 9th Circuit panel, has determined that the ban discriminates based on gender identity and is subject to heightened scrutiny under the 5th Amendment’s equal protection requirement, and judging from this opinion she is clearly getting fed up by the Justice Department’s delay strategy in the case.

Since the Supreme Court stayed Judge Pechman’s preliminary injunction (and ultimately, all the preliminary injunctions were lifted), the Mattis Plan went into effect last April while the litigation continues, including clear discrimination against applicants and service members due to their gender identity. The Justice Department’s strategy now is to avoid a merits ruling against the government by stretching out discovery as long as possible.

The district courts have already determined that various deliberative process privilege claims asserted by the government are invalid in this suit, where the question boils down to whether the Mattis Plan is an expression of ideology, pure and simple, or rather is based on objective facts. Only discovery of internal communications and sources allegedly relied upon in formulating the policy can reveal the answer to the degree necessary to constitute proof in a court. But they keep stalling.

Judge Pechman issued an order late last year compelling certain disclosure by a date specified in December. Rather than comply, the Justice Department moved for “clarification” and a “stay pending appeal.” That is, they want to keep off responding as long as they can, and then get the court to delay further while they appeal every discovery ruling to the 9th Circuit, building in several more months for delay.

Pechman is having none of it: Her February 7 order provides some “clarification” and denies the stay. “Because Plaintiffs have overcome the deliberate process privilege for these documents and this dispute has been pending for nearly two years, the Court will not issue a stay for an unspecified amount of time while Defendants decide whether to appeal,” she wrote. “This is an ongoing process and until the process is complete it is wasteful to appeal one segment at a time.” She also pointed out that the government missed a 14-day deadline if it wanted her to reconsider her prior discovery order. She ordered the government to produce all the documents covered by the order by February 14.

Karnoski and co-plaintiffs are represented by Lambda Legal and Outserve-SLDN (so named when the case was filed, now the Modern Military Association).

Unanimous Federal Appeals Court Rules Indiana Must List Lesbian Mothers on Birth Certificates

Posted on: January 20th, 2020 by Art Leonard No Comments

A unanimous three-judge panel of the U.S. Court of Appeals for the 7th Circuit ruled on January 17, 2020, in Henderson v. Box, 2020 U.S. App. LEXIS 1559, 2019 WL 255305, that the state of Indiana must recognize the same-sex spouses of women who give birth as mothers, who should be listed on the birth certificates for their children.  Judge Frank Easterbrook wrote the opinion for the court.

The timing of this appeal made the outcome unsurprising.  In June and December 2016, District Judge Tanya Walton Pratt issued rulings in this case, ultimately holding unconstitutional various Indiana statutes upon which the state relied in refusing to list the same-sex spouses on their children’s birth certificates.  See Henderson v. Adams, 209 F. Supp. 3d 1059 (S.D. Ind., June 30, 2016); Henderson v. Adams, 2016 U.S. App. LEXIS 180330, 2016 WL 7492478 (S.D. Ind., Dec. 30, 2016).  Judge Pratt relied on her reading of the Supreme Court’s decision in Obergefell v. Hodges, 135 S. Ct. 2584 (2015), which ruled that same-sex couples have a right to marry and their marriages must be treated the same for all purposes as the marriages of different-sex couples.  Just six months after Judge Pratt’s last ruling, the U.S. Supreme Court stated the same conclusion in Pavan v. Smith, 137 S. Ct. 2075 (2017), ruling that Arkansas could not refuse to list such parents on birth certificates.

In light of the Pavan ruling, one would have thought that Indiana would desist from appealing Judge Pratt’s ruling to the 7th Circuit.  But the state’s lawyers insisted that the state had a right to make the initial birth certificate of a child a record solely of the biological parents of the child, so long as they would allow same-sex spouses to seek an amended birth certificate at a later date.  Judge Pratt had rejected this argument, and the Supreme Court’s Pavan ruling vindicated her reading of the Obergefell decision’s implications for birth certificates.

Describing Judge Pratt’s first ruling, issued on June 30, 2016, Judge Easterbrook wrote, “The district court issued an injunction requiring Indiana to treat children born into female-female marriages as having two female parents, who under the injunction must be listed on the birth certificate.  Because Indiana lists only two parents on a birth certificate, this effectively prevents the state from treating as a parent a man who provided the sperm, while it requires the identification as parent of one spouse who provided neither sperm nor egg.”  Pratt concluded that this was required by Obergefell, which, Easterbrook noted, was confirmed by the Supreme Court in Pavan.

Indiana argued on this appeal that “Obergefell and Pavan do not control,” explained Easterbrook.  “In its view, birth certificates in Indiana follow biology rather than marital status.  The state insists that a wife in an opposite-sex marriage who conceives a child through artificial insemination must identify, as the father, not her husband but the sperm donor.”

By contrast, the plaintiffs argued that Indiana’s statute is status-based, not based on biology, and in fact heterosexually-married women who give birth to children conceived through donor insemination routinely designate their husbands, contrary to Indiana’s rather strange argument that the worksheet the women are given to complete in order to get the birth certificate is intended to elicit the identity of the child’s biological father – in that case, the sperm donor.  Mothers are asked to name the “father” of their child, and the state contended that this means they should be listing the sperm donor if the child was conceived through donor insemination.

That the argument is complete nonsense certainly did not help the state’s case.  Indeed, the semantic games that attorneys from the Office of the Attorney General were playing makes for a curious opinion by Easterbrook, whose tone projects some bemusement.  “The district judge thought the state’s account of mothers’ behavior to be implausible,” he wrote.  “Some mothers filling in the form may think that ‘husband’ and ‘father’ mean the same thing.  Others may name their husbands for social reasons, no matter what the form tells them to do.  Indiana contends that it is not responsible for private decisions, and that may well be so – but it is responsible for the text of Indiana Code Section 31-14-7-1(1), which establishes a presumption that applies to opposite-sex marriages but not same-sex marriages.”  This is the presumption that the husband of a married woman who gives birth is the father of her child.  “Opposite-sex couples can have their names on children’s birth certificates without going through adoption; same-sex couples cannot.  Nothing about the birth worksheet changes that rule.”

The state argued that of course the same-sex spouse can then adopt the child and be listed on an amended birth certificate.  Thus, the same-sex couple will have a birth certificate naming both of them, and the state will retain on file the original birth certificate documenting the child’s biological parentage.  But why should a married same-sex couple, entitled under the Constitution to have their marriage treated the same as a different-sex marriage, have to go through an adoption to get a proper birth certificate?

The lawsuit also sought the trial court’s declaration that the children of the two couples who brought the suit were born “in wedlock,” not “out of wedlock” as a literal interpretation of the state’s statutes would hold.  Yet again, the state’s insistence on perpetuating the former legal regime was rejected.

Judge Easterbrook identified another way that the statutes on the books fail to account for reality. What if the child of a same-sex female couple has two “biological” mothers?  Easterbrook observed that “Indiana’s current statutory system fails to acknowledge the possibility that the wife of a birth mother also is a biological mother.  One set of plaintiffs in this suit shows this.  Lisa Philips-Stackman is the birth mother of L.J.P.-S., but Jackie Philips-Stackman, Lisa’s wife, was the egg donor.  Thus Jackie is both L.J.P.-S.’s biological mother and the spouse of L.J.P.-S.’s birth mother.  There is also a third biological parent (the sperm donor), but Indiana limits to two the number of parents it will record.”

“We agree with the district court,” wrote Easterbrook, “that, after Obergefell and Pavan, a state cannot presume that a husband is the father of a child born in wedlock, while denying an equivalent presumption to parents in same-sex marriages.”  Because the current statute does that, he continued, “its operation was properly enjoined.”

However, the court of appeals found that Judge Pratt went too far when she declared that all the relevant statutory provisions are invalid in their entirety and forbade their operation “across the board,” because “some parts of these statutes have a proper application.”  For example, the provision that allows for somebody who is not a husband to the birth mother to be identified as the biological father as a result of genetic testing, and, for another example, the provision that “provides that a child is born in wedlock if the parents attempted to marry each other but a technical defect prevented the marriage from being valid.”  Easterbrook asserted that neither of these provisions violated the constitution.  “A remedy must not be broader than the legal justification for its entry, so the order in this suit must be revised,” he wrote.

“The district court’s order requiring Indiana to recognize the children of these plaintiffs as legitimate children, born in wedlock, and to identify both wives in each union as parents, is affirmed,” the court concluded.  “The injunction and declaratory judgment are affirmed to the extent they provide that the presumption in Indiana Code Sec. 31-14-7-1(1) violates the Constitution.”

Circuit Judge Easterbrook was appointed by Ronald Reagan, as was Judge Joel Flaum.  The third judge on the panel, Diane Sykes, was appointed by George W. Bush.  Thus, the ruling is the work of a panel consisting entirely of judicial conservatives appointed by Republican presidents.  The clear holding of Pavan v. Smith was such that they could not honestly rule otherwise, regardless of their personal views about same-sex marriage and parentage.  After all, in Pavan the Supreme Court rejected exactly the same arguments that Indiana was making in this case.

Attorneys for the plaintiffs include Karen Celestino-Horseman, Raymond L. Faust, Megan L. Gehring, Richard Andrew Mann, and William R. Groth, all practicing in Indianapolis in several different law firms.  Amicus briefs were filed for a variety of groups by pro bono attorneys from Chicago, San Francisco, and Washington, D.C., representing the Family Equality Council, the National Center for Lesbian Rights, and 49 Professors of Family Law.

Virginia Court Denies Annulment to Woman Who Claims Her Marriage to Transgender Spouse was Induced by Fraud

Posted on: January 18th, 2020 by Art Leonard No Comments

This is one of those “truth is stranger than fiction” stories.  In Sun v. Riley, 2019 Va. Cir. LEXIS 1180 (Virginia – Fairfax County Cir. Ct., Dec. 30, 2019), Circuit Judge David A. Oblon denied a petition by Renee Sun to annul her marriage to Joseph Michael Riley, either on the ground that it was not consummated or that Riley had defrauded her by not disclosing an intention to transition to female gender.  The judge pointed out that Sun could alternatively seek a divorce.

Sun and Riley married on November 19, 2017.  On March 29, 2019, Riley “underwent a surgical procedure consistent with a male to female gender reassignment,” wrote Judge Oblon.  “Sun testified she learned of this, not from Riley, but from medical records she found in their bedroom.  To the contrary, Riley testified he discussed it with Sun before the procedure. Sun testified he only told her he was obtaining a vasectomy, and not a bilateral orchiectomy.”

(Translation: A vasectomy is a procedure to block the route by which sperm generated by the testicles can be ejaculated through the penis, and is one method of birth control.  A bilateral orchiectomy is a procedure by which the testicles are removed and may be a prelude to further procedures of penectomy and construction of a vagina.)

Obviously, there is a story behind this, much contested by the parties to this case.  “Prior to the marriage,” relates Judge Oblon, “Riley was ‘unsure of [his] gender,” according to his testimony.  “He engaged in hormone testing and took female hormones on May 16, 2018, roughly si months before marriage.”  He testified that he had told Sun about this “in passing,” by saying that “he was a girl and like to ‘dress up,’” and he claimed that Sun was “supportive.”  In her testimony, she recalled Riley “joking” about being a girl and liking to dress up, and she admitted he mentioned having taken hormones but explained that it was to treat “in-grown hair” and assured her that it would not turn him female, because “a doctor oversaw the treatment and the dosage was low.”  Sun testified that she did not know Riley was transitioning to become female, they had no discussions about gender reassignment, and she thought their mutual intention was to have children.  Riley claimed in his testimony that they discussed the fact that he did not want to have children.

“They never engaged in coitus once married,” wrote Oblon.  Riley claimed he had approached Sun twice to engage in sex, but she “rebuffed him” and he “did not wish to force her,” so he desisted and their marriage did not include sex.  “He denied being impotent before marriage, and on either of his two post-marriage attempts at coitus.”  Sun claimed not to recall these incidents, but testified that she never approached Riley about having sex.  “She did not testify that she ever asked him for coitus or even asked why they remained celibate.”  This situation continued from November 19, 2017 until after Riley’s surgical procedure on March 29, 2019, after which Sun’s discovery of the medical records and subsequent questioning of Riley led her to file her petition for annulment.

“When a marriage is annulled,” wrote the judge, “the law treats the marriage as a nullity.  It never happened because it was either void ab initio (such as in the case of bigamy) or it is voidable (such as in the case of marriage to one lacking capacity to consent).  “The biggest effect is that annulments are divorced from the benefits of Virginia’s equitable distribution and spousal support laws,” as a result of which “parties seeking annulment must be held to their high evidentiary burdens” – in this case, the petitioner must meet a “clear and convincing evidence standard.” By contrast, Virginia, like all other states, now has a no-fault divorce regime, and divorce is the alternative to annulment for terminating a marriage. But Sun did not file for divorce, seeking instead to have the marriage declared to have never been validly formed.

She advanced two grounds. First, she pointed out, they never had sex, so the marriage had not been “consummated.”  Judge Oblon rejected this ground, pointing out that the statute governing annulment – Va. Code. Sec. 20-89.1 – lists grounds for annulment, but lack of sexual consummation is not among them.  “Noticeably absent is ‘coitus,’ ‘sexual intercourse,’ or any synonymous term,” he wrote, pointing out as well that “coitus is nowhere included in the solemnization procedures” of the marriage law, and the word “consummated” as used in the law does not refer to sexual intercourse.

However, a marriage that was induced by fraud could be a ground for annulment under Va. Code Ann. Sec. 20-89.1(A). The party charging fraud must prove by clear and convincing evidence “(1) a false representation, (2) of a material fact, (3) made intentionally an knowingly, (4) with intent to mislead, (5) reliance by the party misled, and (6) resulting damage to the party misled.”  The court noted a prior Virginia case in which an annulment had been granted on fraud grounds, explaining: “The court did not hold that consummation was itself a condition precedent to a valid marriage.  Rather, it held that the fraud was misleading a person to marry with the intent to deny marital relations, not the lack of marital relations by itself.”

Weighing the credibility of testimony by Sun and by Riley, the court concluded that Riley was more believable than Sun on key points.  “In the present case,” he wrote, “Riley testified he entered the marriage with the intent to consummate it.  He claimed he tried twice with the ability to perform, was twice rebuffed, and that he never tried again.  The Court believed his testimony.”

Sun claimed not to recall these advances, but did not deny that Riley tried to get her to have sex.  “Tellingly,” wrote Oblon, “she admitted she never approached him for marital relations despite her stated goal of having children.  She did not even testify that she ever initiated a conversation about why they would not have sex. This is very different from the language she used in her Petition. There, she wrote, ‘the parties have not engaged in any sexual relations or sexual contact due to his vehemently refusing to do so.’  The Court finds as fact her ore tenus testimony to be more credible than her Petition and concludes that Riley did not ‘vehemently’ refuse sexual relations; rather, he tried and was rebuffed, and it was Sun who did not want these relations.”  Thus, Sun did not show by clear and convincing evidence that Riley defrauded her.

The court rejected Sun’s alternative argument that Riley’s failure to disclose before they got married any intention on his part to transition was itself fraud per se.  She claimed she believed she was marry a man who wanted to be a man and have children with her, not a person in the process of becoming a woman, and pointed to various events, including her claim that Riley concealed from the steps undertaken towards transition by misrepresenting the procedure he was getting as a vasectomy.  In response, “Riley implicitly argued that it is not as simple as Sun argues.  He testified he never wanted to be transgender, he wanted to have marital relations with Sun, and his feelings changed over time despite his wishes.”

Neither party presented expert witnesses, leaving the Court to try to figure out what was going on in this case.  In the absence of expert testimony, the court resorted to “burdens of proof and weight of evidence under the lens of its own understanding and of common sense.  So viewed, Sun has not proved by clear and convincing evidence that Riley defrauded her into marrying him.”  While Oblon conceded that Sun’s feeling of being defrauded was understandable, “she did not prove it.”  And Oblon embraced the view that “people are not static; they change over time – some in ways more dramatic than others.”

“Must a person ‘unsure of his gender’ before marriage, who now believes he was ‘not supposed to be male,’ have told this to a future spouse to avoid defrauding the spouse?” he asked.  “the Court can conceived of circumstances where failure to so inform – or to affirmatively hide these feelings – could amount to fraud in the inducement.  However, on the present record, the Court finds Sun failed to prove by clear and convincing evidence that, at the time of her marriage, Riley defrauded her by knowing he did not wish to engage in and perpetuate a marriage between a man and a woman with her. The Court believed Riley that he entered the marriage believing he would be in a lifelong relationship with Sun.  It belived him that he tried to have marital relations with her.  It believed him that he was unsure of his own sexuality, but that he wanted to be married to Sun as a male.”

In effect, the court seems to have believed that Riley, not having accepted that he was transgender and not wanting to be transgendered, intended to marry Sun and live in a man-and-woman marriage.  It didn’t work out that way, but she did not prove that he intended to defraud her by marrying, and the statute places the burden of proof on the party seeking the annulment.  Furthermore, the court seems to fault Sun, stating: “Counterfactually, the evidence showed that Sun knew – pre-marriage – that he joked about being a girl and dressing up.  She knew he had taken female hormones.  She rebuffed his sexual advances and did not make advances of her own or question him as to their celibate status.  If one were to apply an ex post analysis to this case, one could make a case that Sun should have known Riley was on a trajectory toward becoming a female someday.”  So much for the fraud argument. . . .

Thus the Petition for annulment was denied.  The opinion as reported by LEXIS indicated that some text was “redacted by the court.”  The opinion lists Danielle A. Quinn of Dycio & Biggs, PC, Fairfax, as counsel for Sun.  Riley represented himself.

Unanimous Federal Appeals Panel Blasts Trump Administration in HIV-Military Discharge Cases

Posted on: January 14th, 2020 by Art Leonard No Comments

A unanimous three-judge panel of the U.S. Court of Appeals for the 4th Circuit, based in Richmond, Virginia, blasted the Trump Administration on January 10 for relying on “outmoded”  information that is “at odds with current science” when the Air Force moved to discharge otherwise healthy HIV-positive service members based on the spurious assertion that they were not available for deployment outside the United States.  Roe v. U.S. Department of Defense, 2020 U.S. App. LEXIS 821, 2020 Westlaw 110826 (4th Cir., Jan. 10, 2020).

The court affirmed a preliminary injunction that was issued last year by U.S. District Judge Leonie M. Brinkema, barring the discharges while the case proceeds to an ultimate ruling on the merits.  The court’s opinion, written by Circuit Judge James Wynn, provides a detailed review of relevant Defense Department policies  and current medical facts, leaving little doubt that Judge Brinkema’s conclusion that plaintiffs are likely to win their case is solidly grounded in legal reasoning.

The three-judge panel consisted of Wynn, who was appointed by Barack Obama, and Albert Diaz and Henry Floyd, both also appointed by Obama.  At the time of his nomination to the court of appeals, Judge Floyd was a District Judge who had been appointed by George W. Bush.

Lambda Legal and Outserve-SLDN brought the case on behalf of two service members, anonymously identified as Richard Roe and Victor Voe, as well as other Outserve members who are HIV-positive and subject to discharge for that reason.  Both Roe and Voe had years of meritorious service when they were diagnosed as HIV-positive in 2017 as a result of the Defense Department’s policy of periodically requiring personnel to submit to HIV testing.  Both men immediately went into treatment, are taking retroviral therapy, have undetectable HIV, and are healthy and uncompromised in their ability to perform their duties.

Defense Department written policies state unequivocally that HIV-positive personnel who are “determined to be fit for duty will be allowed to serve in a manner that ensures access to appropriate medical care.”  The Air Force has a written policy stating that HIV-positive status “alone is not grounds for medical separation or retirement,” and states that “force-wide, HIV-infected employees are allowed to continue working as long as they are able to maintain acceptable performance and do not pose a safety or health threat to themselves or others,” and “may not be separated solely on the basis of laboratory evidence of HIV infection.”

The Catch-22, however, comes with the Air Force’s insistence that personnel must be deployable anywhere in the world, and in particular to the central theater of Air Force active operations, known as CENTCOM, which covers operations spanning North Africa, Central Asia, and the Middle East.  Under a rule known as “Modification 13,” personnel who are “found to be medically non-deployable will not enter [the Central Command area] until the non-deployable condition is completely resolved or an approved waiver is obtained.”  It lists “confirmed HIV infection” as “disqualifying for deployment.”  The official in charge of granting waivers has stated that it is highly unlikely that a waiver would be granted for HIV-positive servicemembers to be deployed to CENTCOM’s area, and in fact no such waiver has ever been granted.

In this litigation, the Defense Department takes the position that neither it, nor in particular the Air Force, has an absolute ban on continued employment of healthy HIV-positive personnel.  On the other hand, since most of the Air Force’s current activity is in the CENTCOM area, Modification 13 prohibits deployment of HIV-positive personnel to CENTCOM without a waiver, and the official in charging of granting waivers does not grant them for HIV-positive personnel, there is, de facto, a ban.

The lawsuit claims that the discharge of Roe, Voe and similarly-situated service members for being HIV-positive violates the Administrative Procedure Act (APA), as being “arbitrary and capricious” in light of the facts of their individual cases, and also violates the Equal Protection requirements of the 5th Amendment.  Judge Brinkema and the court of appeals narrowed their attention to the alleged APA violation, under the well-established approach of avoiding making a constitutional ruling if the plaintiff can prevail based on a statutory claim.

In this case, it seemed clear to Brinkema and the appeals panel that the government’s position was inconsistent with medical facts, based on outmoded ideas about HIV and current treatments. The court emphasized that Roe and Voe take daily pills that do not require any special treatment (refrigeration, for example, or shielding from temperature extremes, which were required for some HIV treatments prior to the introduction of the pills now in use) and have not generated any significant side effects for either man.  The court summarizes the well-established science that somebody with undetectable levels of HIV presents virtually no risk of transmission through casual contact, and even blood exposure or sexual contact with somebody under retroviral treatment whose HIV level is undetectable is highly unlikely to result in transmission.

Both men present themselves as fully capable of performing their duties, and in both cases their commanding officers have endorsed their request to be allowed to continue serving, as have military physicians.  However, the Air Force, despite the requirements in published policies to evaluate each case on its individual merits, has maintained a de facto categorical exclusion.  Each man appealed the initial rulings against them internally, and both were met with virtually identical formulaic statements that they had to be discharged on medical grounds under the deployability rules, suggesting that their cases did not receive individualized consideration.

“To comply with the APA,” wrote Judge Wynn, “the agency must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found the choice made.  Agency action is arbitrary and capricious when the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.”

Analyzing these requirements, Wynn pointed out that “the Government has taken inconsistent positions on whether HIV-positive servicemembers may deploy to CENTCOM’s area of responsibility.” Prior to this litigation, the Government has treated Modification 13 as “a categorical ban,” but now it tries to appear to conform to APA requirements by emphasizing the possibility of a waiver being granted.  But this position is belied by the evidence that waivers have not been granted in any HIV case, despite the facts concerning these plaintiffs.

“If Modification 13 is not a categorical ban,” wrote Wynn, “the Air Force acted arbitrarily by treating them as categorically ineligible to deploy to CENTCOM’s area of responsibility and denying Plaintiffs the required individualized assessment of their fitness for continued service.  If Modification 13 is a categorical ban, the Government failed to satisfy the APA’s requirements in promulgating their policy.”

The court of appeals concluded that Judge Brinkema “rightly found that Plaintiffs are likely to succeed on their claim that the Air Force’s discharge decisions were arbitrary and capricious, in violation of the APA.”  This is the threshold factor in deciding whether to issue a preliminary injunction to pause the discharge process while the case is litigation has been met.  In this case, the men were designated for discharge without any individualized assessment, and furthermore without even applying for a waiver and being turned down, since the Air Force’s decision-makers predicted that CENTCOM would deny a waiver in their cases, making any such application virtually futile.  “Such a categorical predictive assessment is not ‘a satisfactory explanation’ for discharging each servicemember,” wrote Wynn, “and in using this predictive assessment to discharged these servicemembers, the Air Force violated Department of Defense regulations, failed to consider important aspects of the criteria for discharge, and explained its decision in a manner contrary to the evidence before it.”

Indeed, wrote Wynn, “Upon review, each explanation offered by the Government for the policy is unsupported by the record or contradicted by scientific evidence, leading us to conclude Plaintiffs have adequately shown that the Government failed to consider the relevant evidence and offers explanations so contrary to that evidence as to be arbitrary.”

For example, the court found the Government’s claim that HIV requires “highly specialized” treatment to be unsupported by the record in this case, which shows that managing HIV through anti-retroviral medications involves taking a single daily pill, “which does not require special storage or handling,” minimal side effects, and periodic blood tests that  can be simply performed by any general practitioner in the field, which are reduced to once a year after somebody has been “undetectable” for a period of two years.

The court similarly dismissed some of the standard arguments that were made earlier in the epidemic prior to current treatment protocols, and found that “the risk of battlefield transmission is unsupported by the record,” given the medical evidence that those with undetectable viral loads don’t transmit the virus.  The court found that the Defense Department’s own internal research showed that out of 1.13 million Army servicemembers deployed to Afghanistan or Iraq between 2001 and 2007, only 131 seroconverted, a lower rate than among servicemembers who were not deployed to those countries, and there was only one documented case of a servicemember who had seroconverted during deployment.  Furthermore, there was no documentation of any servicemember contracting HIV through non-sexual means, and no instances of transmission through  trauma care, blood splash, transfusion, or other battlefield circumstances.  In short, the government’s explanations for its policy were contradicted by the data it generated through its own internal studies.

“A ban on deployment may have been justified at a time when HIV treatment was less effective at managing the virus and reducing transmission risks,” wrote Wynn.  “But any understanding of HIV that could justify this ban is outmoded and at odds with current science.  Such obsolete understandings cannot justify a ban, even under a deferential standard of review and even according appropriate deference to the military’s professional judgements.”  As to Modification 13, relied upon so heavily by the Air Force in this case, it “evidences a complete failure to reasonably reflect upon the information contained in the record and grapple with contrary evidence – disregarding entirely the need for reasoned decision-making.”

The court found that plaintiffs easily met the other tests for obtaining preliminary relief, showing they are likely to suffer irreparable harm if they are given medical discharges.  Such discharges would effectively require them to “out” themselves as HIV-positive when they apply for non-military employment, and the interruption of their military careers would set them back in tangible and intangible ways if they ultimately won their cases and the Air Force was ordered to take them back.

The court also endorsed Judge Brinkema’s conclusion that the balance of the equities and the public interest support requiring the Air Force to keep these men employed while their cases are pending.  As to the argument that the injunction improperly intrudes into military personnel decision-making, the court agreed with Judge Brinkema that the relief request by the plaintiffs “that Defendants adhere to their stated policies and make nonarbitrary, personalized determinations about each individual’s fitness for service did not do violence to the notion of military independence.”

Thus, the court upheld Judge Brinkema’s order that the Air Force not discharge “active-duty servicemembers because they are classified as ineligible to deploy to CENTCOM’s area of responsibility due to their HIV status.”  The court rejected the government’s ritualistic opposition to a nation-wide injunction, finding that Supreme Court precedents support such relief in a case such as this.

In a parting shot, Judge Wynn wrote, “The Government’s explanations for why it has imposed an effective ban on deploying HIV-positive servicemembers to CENTCOM’s areas of responsibility are at odds with modern science.”  After concisely summarizing the basic evidence, he commented, “the Government did not consider these realities when discharging these servicemembers, instead relying on assumptions and categorical determinations.  As a result, the Air Force denied these servicemembers an individual determination of their fitness for military service,” which violates the APA.

Lambda Legal’s lead attorney on the case is Scott Schoettes of Lambda’s Chicago office.  Outserve-SLDN’s lead attorney is Peter Perkowski, Washington, D.C.  Amicus briefs were filed on behalf of a variety of individuals and groups, represented by Winston & Strawn LLP and Dentons US LLP, as well as GLBTQ Legal Advocates & Defenders, a Boston-based public interest law firm.

 

Federal Court Overrules Board of Immigration Appeals’ Denial of Spousal Petition by Gay Man

Posted on: November 12th, 2019 by Art Leonard No Comments

U.S. District Judge Mary Rowland, an out lesbian whose nomination to the federal bench by President Donald J. Trump was recently confirmed by the Senate, has ruled that the Board of Immigration Appeals (BIA) erred in denying a petition by Thomas Valdivia, Jr., a U.S. citizen, to award spousal residency rights to his husband, Radu Cheslerean, a Romanian citizen.  Valdivia v. Barr, 2019 U.S. Dist. LEXIS 191616 (N.D. Ill., Nov. 5, 2019).  The Board, affirming a district director’s decision to deny the petition, rested its ruling on its conclusion that Cheslerean had previously married a woman in order to obtain U.S. immigration benefits.

The story begins on December 31, 2005, when Cheslerean attended a New Year’s Eve party and met Nina Garcia, whom he married about a month later.  In August 2006, Garcia filed an I-130 Petition with the Immigration Service, seeking U.S. spousal residency rights for her husband. That November, Garcia and Cheslerean went with their lawyer to an interview at the U.S. Citizenship and Immigration Services field office in Chicago.  After the interview, nothing happened until July 31, 2009, when the Chicago office director issued a Notice of Intent to Deny the I-130 petition.  In September 2009, USCIS denied the petition and Garcia appealed to the BIA, which dismissed the appeal in February, 2011.  Several months later, Garcia and Cheslerean divorced.  The Judgment of Divorce states that they “lived separate and apart as of March 15, 2007, and had no children together.

Several years later, Cheslerean married Valdivia on May 17, 2015.  On September 6, 2016, Valdivia filed an I-130 petition on behalf of Cheslerean, and the men were interviewed at the Chicago Field Office on January 12, 2017.  When the office issued a Notice of Intent to Deny, Cheslerean submitted an affidavit explaining his two marriages.  He stated that in his “relationship with Nina, we did not plan ahead, or have insurance or much other evidence of a commingled life because we had very little money, and any savings we had we would just spend.  We were young and immature and didn’t think about the future or plan ahead.”  Describing his relationship with Valdivia, Cheslerean wrote that he grew up in a conservative Christian orthodox family that treated homosexuality as a sin, and “coming to terms with who I am and living my life authentically as a gay man was a painful journey and it took me a lot longer than it takes other gay men these days.”  But the Chicago Director denied Valdivia’s petition in March 2017, and the BIA dismissed his appeal on December 14, 2017, leading to this lawsuit.

The premise for the BIA’s decision is a section of the immigration statute that says a Form I-130 cannot be approved if the beneficiary (in this case Cheslerean) has ever sought immigration benefits based on a marriage entered into to evade immigration laws — what the Immigration Service refers to as a “sham marriage.”  The agency and the BIA concluded that the marriage with Garcia had been for the purpose of getting immigration benefits and was not a genuine marriage.  Cheslerean tells a different story, and in this lawsuit, Valdivia and Cheslerean contend that neither marriage was a sham marriage, each was genuine in its own way, even though the earlier one did not last very long and came apart when Garcia’s I-130 Petition was finally denied by the BIA.

The BIA specifically emphasized an affidavit that Valdivia had filed in 2009 in support of Garcia’s petition of the I-130 on behalf of Cheslerean.  The BIA argued that “Valdivia offered no explanation in his 2017 affidavit (submitted in support of his own I-130 Petition on behalf of Cheslerean) why he did not include his account of the 2007 events in his 2009 affidavit filed in support of Cheslerean’s marriage to Garcia.”  In responding to this lawsuit, BIA argued that the two affidavits “created issues of credibility for all concerned” because Valdivia’s 2017 affidavit “made it obvious that he was being less than fully candid in August of 2009 when he did not disclose the true nature of his relationship to Cheslerean.”

But Judge Rowland was not convinced by this.  “Nowhere in the USCIS and BIA decision was Validiva’s credibility an issue, based on his 2017 affidavit or anything else,” she wrote.  “Defendants argue that the BIA ‘indicated they reviewed the response to the NOID that included the Valdivia affidavit.’  The BIA did state that it reviewed the response to the NOID, but nowhere in the decision did the BIA discuss or reference Valdivia’s 2017 affidavit or state that it created credibility issues for any of the affiants at the time.”  From a look-back to the earlier proceeding, it seems that the denial of Garcia’s petition was, as explained in Cheslerean’s affidavit in the current case, premised on the failure to check the boxes that CSIS uses to evaluate I-130 applications in an attempt to weed out sham marriages – most specifically the lack of commingled resources and other documentary evidence such as insurance policies.

“The USCIS and BIA did not based their decisions [in this case] on a finding that Valdivia failed to disclose his earlier attraction to Cheslerean,” wrote Judge Rowland.  “To the contrary, the USCIS found that the evidence submitted in response to the NOID ‘mainly reiterated what was stated in statements previously submitted in regards to the marriage of Ms. Garcia and Mr. Cheslerean.’” Thus, she found that the Defendant’s arguments now about the 2017 Valdivia affidavit violate a doctrine that an agency many not defend the administrative decision in the Garcia case based on a new ground that was not mentioned in its original decision.

The BIA now sought to rely as well on the fact that in 2009, the USCIS Director in Chicago explained the ruling by referring to an admission by Garcia that she and Cheslerean were “just friends” even though they were not formally divorced until after the BIA’s 2011 decision.  “Defendants raise the issue of the short duration of the Garcia-Cheslerean marriage and point out that Garcia’s 2009 affidavit stated that Cheslerean ‘is now a good friend.’  Neither the 2017 BIA decision nor the 2017 USCIS decision rely on this statement to support a finding of marriage fraud.  Moreover, this statement by Garcia refers to her relationship with Cheslerean in 2009, not their relationship when they married in 2006.”  Under agency and court decisions about these issues, it is clear that the question of “sham marriage” relates to the time the marriage was entered into, not the state of the relationship years later.

Judge Rowland referred to a prior immigration ruling stating that “the fact that a marriage at some point becomes nonviable or nonsubsisting does not in itself indicate that the marriage was a sham at its inception,” and since it is the purpose for which a couple marries that is the focus of attention for purposes of immigration law, the fact that Garcia and Cheslerean were no longer living together by the time the BIA denied Garcia’s appeal was not relevant to whether the earlier marriage should now be a disqualifying factor on Valdivia’s petition for residency rights for his husband.  Nobody is contending that the marriage between Valdivia and Cheslerean is anything but bona fide.

Ultimately, Judge Rowland concluded that the records about the earlier marriage and I-130 petition did not prove that the earlier marriage was a sham.  The story told by Valdivia and Cheslerean now is credible.  Garcia and Cheslerean met at a party and married, that marriage eventually broke up, perhaps we might speculate partly with Cheslerean’s discovery that he was actually falling in love with their mutual friend, Valdivia.  Cheslerean finally embraced his sexual orientation and became Valdivia’s boyfriend and then his husband.  Case closed.

Valdivia and Cheslerean are represented by Noelia Rodriguez-Quinones and Nancy Marcia Vizer of Chicago.

New York Federal Judge Vacates Trump Administration “Conscience” Regulation

Posted on: November 12th, 2019 by Art Leonard No Comments

U.S. District Judge Paul A. Engelmayer issued an extraordinarily lengthy opinion on November 6, concluding that a regulation adopted by the Trump Administration’s Department of Health and Human Services (HHS) intended to protect from discrimination employees in the health care industry who refused to provide services because of their religious beliefs is invalid.   The case is State of New York v. U.S. Department of Health and Human Services, 2019 WL 5781789, 2019 U.S. Dist. LEXIS 193207 (S.D.N.Y.).

 

The lawsuit was brought by a coalition of states, cities, Planned Parenthood, and a Family Planning and Reproductive Health services organization, that stood to lose substantial federal funding for their programs if they were found to violate the regulation, which imposed substantial compliance requirements on them.  They argued that the measure violated the First Amendment’s prohibition on an “establishment of religion.”  But Judge Engelmayer, rejecting a “facial” Establishment Clause challenge, instead premised his ruling on other arguments by the plaintiffs, asserting violations of the Administrative Procedure Act (APA) and the Spending Clause and Separation of Powers requirements of the Constitution.

 

Judge Engelmayer summarized the Rule, which was adopted on May 21 (84 Fed. Reg. 23,170 – codified at 45 C.F.R. pt. 88), originally set to go into effect on July 22, to “interpret and provide for the implementation of more than 30 statutory provisions that recognize the right of an individual or entity to abstain from participation in medical procedures, programs, services, or research activities on account of a religious or moral objection.”  The statutory provisions, usually added to particular laws as amendments offered by legislators during congressional consideration of the bills, are usually referred to as “conscience provisions.” After this lawsuit was filed, HHS agreed to delay the effective date of the regulation until November 22, so it has never actually gone into effect and will not go into effect any time soon unless the government obtains a stay of Judge Engelmayer’s opinion pending an appeal.

 

Most of the conscience provisions are intended to protect employees who refuse to participate in performing abortions, sterilizations, or assisted suicides, but some go further, extending to any medical practice or procedure, and theoretically could protect employees who refuse to provide services to LGBTQ people due to religious or moral objections.  While some of the provisions were aimed specifically at licensed health care professional employees who actually perform such procedures, others could theoretically apply to any employee – such as an orderly, an ambulance driver, or anybody else employed in a supportive or administrative role – whose religious or moral beliefs would be compromised by providing the service in question.

 

In addition to describing the various statutory conscience provisions, Judge Engelmayer noted a provision in Title VII of the Civil Rights Act of 1964, which requires employers to make a “reasonable accommodation” to the religious practices or beliefs of employees, with the test of reasonableness being whether the accommodation would impose an undue hardship on the employer.  The Supreme Court has traditionally interpreted this provision to require employers to bear no more than a “de minimus” expense to accommodate religious objectors.

 

The George W. Bush administration promulgated a conscience regulation late in 2008 that was to take effect on the first day of the Obama Administration, but a legal challenge was filed and although “much of the rule” did take effect while the litigation continued, many contentious provisions were never rigorously enforced and HHS rescinded much of that Rule in 2011.

 

After taking office, President Trump issued an executive order titled “Promoting Free Speech and Religious Liberty,” which directed the Attorney General to “issue guidance interpreting religious liberty protections in federal law” and generally stating that the federal government should protect religious freedom to the extent possible under the Constitution.  On October 6, 2017, Attorney General Jeff Sessions issued a memorandum proclaiming that under the 1st Amendment’s Free Exercise Clause, an individual has “the right to perform or abstain from performing certain physical acts in according with one’s beliefs,” mentioning many of the statutory conscience provisions.  HHS then proceeded to issue a notice of proposed ruling-making to translate Sessions’ memorandum into written regulations, publishing its “final rule” on May 21, 2019.

 

Judge Engelmayer found that the 2019 Rule “substantially expands” on the 2008 Rule, applying to more than 30 conscience provisions (where the 2008 Rule applied to only three of them). He includes a detailed description of the Rule, including its very broad definition of which employees and entities are covered, a very broad definition of what counts as “discrimination,” and detailed procedures that employers in the health care field are supposed to follow to ensure that employees know about their rights to object or abstain, including requirements to certify their compliance with the Rule as a condition of receiving funding under federal programs, such as Medicare.  The stated intent of the Rules is to go as far as the Constitution and statutes allow in protecting those who object to doing their job because of religious, moral or ethical objections to particular procedures or practices by holding the loss of funding over employers who fail to accommodate religious objectors to the extent spelled out in the Rule.

 

The plaintiffs advanced five constitutional arguments against the rule.  They first argued that it violates the Establishment Clause, by forcing recipients of federal funds to “conform their business practices to the religious practices of their employees, imposing an absolute duty to accommodate such practices,” going far beyond the existing accommodation duty under Title VII of the Civil Rights Act.  Second, they argued it violates the Spending Clause because the threat to withhold all federal funding for is “unconstitutionally coercive” and because the conditions it imposes are “ambiguous, retroactive, not reasonably related to the purpose of HHS’s programs under which the funds are provided, and thus unconstitutional.”  They argued that the Rule violates the constitutional separation of powers by, among other things, empowering the executive branch to unconstitutionally impound funds that Congress has appropriated.  They also made two Fifth Amendment arguments: void for vagueness as a result of ambiguities and inconsistences with other federal laws, inviting arbitrary enforcement; and violating the due process rights of patients to privacy and liberty, in particular by interfering with patients’ ability to obtain abortions and other procedures to which some health care workers object.

 

Judge Engelmayer rejected the government’s argument that the rule was merely a “housekeeping” measure intended to consolidate enforcement of the various statutory conscience provisions by centralizing enforcement in HHS’s Office of Civil Rights and to standardize definitions and requirements that varied among the thirty statutes.  Instead, he found, the Rule made substantive changes in the law.

 

“On this threshold dispute,” wrote the judge, “there is a definite answer.  Although the 2019 Rule has housekeeping features, plaintiffs’ description of it as largely substantive – and, indeed, in key respects transformative—is correct.  And HHS’s characterization of the Rule as solely ministerial cannot be taken seriously.”  He noted that the government had actually abandoned this position during oral argument.  “Whether or not the rule was properly adopted,” he wrote, it “unavoidably would shape the primary conduct of participants through the health care industry. It would upend the legal status quo with respect to the circumstances and manner in which conscience objections must be accommodated.  And the maximum penalty the Rule authorizes for a violation of the Conscience Provisions – the termination of all of a recipient’s HHS funding, from whatever program derived – is new, too.”

 

Supporting this conclusion, Judge Englemayer explained how the rule vastly expanded employers’ religious accommodation requirements under Title VII of the Civil Rights Act, how it substantially broadened the definition of “protected activities” of religious objectors, down to the level of protecting a receptionist who might refuse to schedule a patient for a procedure to which the receptionist has ethical objections.  Unlike the statutory conscience provisions, he noted, the Rule would “for the first time” permit “abstention from activities ancillary to a medical procedure, including ones that occur on days other than that of the procedure.”  It also extended the definition of “covered entities” from health care providers to pharmacists and medical laboratories, and significantly expands the financial exposure of covered entities by authorizing draconian cut-offs of funding.

 

Judge Engelmayer decided the Rule is not a facial violation of the Establishment Clause, which would require finding that all of its provisions are unconstitutional in all their potential applications, but he acknowledged that it could be challenged “as applied” to particular situations – a test that might never arise because of his action in declaring the Rule invalid on other grounds.

 

First, the judge found that HHS did not comply with the requirements of the Administrative Procedure Act governing the adoption of regulations, by going beyond the limits of rulemaking authority.  Agencies must base their rules and regulations on statutory policy decisions expressed by Congress, and cannot engage in legislating beyond those policy decisions.  The judge found that in this Rule HHS went over the line into legislation, especially noting the way the Rule expanded definitions, covered entities, enforcement authority, and penalties.  He found that HHS did not have authority under the APA to make all of these substantive legal changes without specific authorization in the statutes.

 

The sheer scale of the Rule’s potential impact played a large part in the decision.  The judge found that the Rule “puts in jeopardy billions of dollars in federal health care funds.  In fiscal year 2018, for example,” he wrote, “the State Plaintiffs received $200 billion in federal health care funding.  New York alone received $46.9 billion. The Provider Plaintiffs similarly received hundreds of millions in funding from HHS.”  He also noted the political significance of the Rule, as it took positions beyond those actually taken by Congress on such controversial issues as abortion and assisted suicide.

 

“In a case involving economic consequences and political dynamics on such a scale,” wrote the judge, “the Supreme Court teaches that ‘we expect Congress to speak clearly’ were it to delegate rulemaking authority. . .  Far from speaking clearly here, in none of the three statutes at issue did Congress give any indication that it intended to subcontract the process of legal standard-setting to an administrative agency in particular, or HHS in particularly,” noting that the three principal statutes with Conscience Provisions don’t even mention HHS.  And, the judge rejected the government’s contention that such a delegation was “implicit” in the enactment of those conscience provisions.  He noted that the Supreme Court had rejected a similar “implicit delegation” argument in connection with its interpretation of Title VII’s accommodation provisions and the attempts by the EEOC to interpret them.

 

He also concluded that HHS did not act in accordance with law in promulgating the rule, having taken shortcuts (rather typical of the Trump Administration) in skirting the detailed procedures set out in the APA.  The two most important flaws the court found were establishing rules that conflict with Title VII, and rules conflicting with the Emergency Medical Treatment and Labor Act (EMTLA), by purporting to authorize employees with religious objections to withhold services in emergency situations.  The judge found that two basic Title VII concepts that the Rule “overrides” are key components of the specific language Congress adopted in 1972 amendments to Title VII “to address workplace religious objections.”  An agency cannot displace express statutory provisions by adopting a contrary rule.  Similarly, he noted that EMTLA “does not include any exception for religious or moral refusals to provide emergency care” and courts had declined to “read in” exceptions to that statute’s mandates, but the HHS Rule “applies in emergency-care situations,” purporting to create a “conscience exception” in a law that does not have one.

 

Also, turning to the APA’s substantive requirements, an agency that is adopting a rule that changes the law is required to document the need for such a change.  In this case, HHS just lied, claiming that there had been a substantial increase in complaints by health care employees about being forced to perform objectionable procedures or being disciplined for refusing to do so.  “In fact, upon the Court’s review of the complaints on which HHS relies,” wrote Engelmayer, “virtually none address the Conscience Provisions at all, let alone indicate a deficiency in the agency’s enforcement capabilities as to these laws.  And HHS, in this litigation, admitted that only a tiny fraction of the complaints that its Rule invoked as support were even relevant to the Conscience Provisions.  A Court ‘cannot ignore the disconnect between the decision made and the explanations given,’” he wrote, quoting from Chief Justice John Roberts’ opinion in June striking down the Trump Administration’s attempt to add citizenship questions to the 2020 Census Forms.  In that case, the Supreme Court found evidence that the Administration wanted to add the questions for political purposes, but prompted the Justice Department to come up with a phony justification invoking data needs to enforce the Voting Rights Act, even though experts in the Census Bureau warned that adding the questions would make the Census count less accurate by deterring non-citizens resident in the U.S. from participating.  He pointed out that the large majority of religiously-connected complaints received by HHS had to do with vaccinations, “which HHS admits fall outside the scope of the Conscience Provisions and the Rule.”

 

He also found unconvincing other explanations offered by HHS, and was especially critical of ways in which the Final Rule differed from the Rule as it was originally proposed and published for public comment concerning the definition of “discrimination.”  The judge concluded, in sum, that failed procedures in adopting the Rule under the APA were sufficient to invoke the court’s authority to declare the rule invalid and order it to be “vacated.”

 

But there was more, because the judge also found constitutional violations both of separation of powers and the Spending Clause.

 

Judge Engelmayer focused on the Rule’s remedial provision authorizing the termination of all HHS funding to an entity found to have violated the Rule, finding that this had not been authorized by Congress.  Thus, its adoption was a serious violation of the separation of powers.  He agreed with plaintiffs that the Rule “is inconsistent with the separation of powers because it allows HHS to withhold congressionally-appropriated federal funds to an extent that neither the [statutory] Conscience Provisions nor any other statute authorizes.  By claiming the power to do so, plaintiffs argue, HHS arrogates to itself, an executive agency, a power the Constitution allocates uniquely to Congress.”

 

Responding to this argument, the judge pointed out that an agency “must exercise its delegated spending authority consistent with specific congressional grant” and that an “agency may not withhold funds in a manner, or to an extent, unauthorized by Congress.” Thus, the remedial provision of the Rule exceeds the agency’s authority.

 

Furthermore, he found other violations specifically routed in the Supreme Court’s interpretation of the Spending Clause.  He noted four principles relevant to this case: “conditions based on the receipt of federal funds must be set out unambiguously,” the “financial inducement offered by Congress” must not be “impermissibly coercive,” the conditions must relate “to the federal interest in the project and to the overall objective thereof,” and “the power may not be used to induce the States to engage in activities that would themselves be unconstitutional.”  Judge Engelmayer found it clear that the Rule violated at least the first two of these principles, pointing to specific ambiguities and internal contradictions in the Rule. And the draconian forfeiture of all funding as a remedy for a violation of the Rule was “impermissibly coercive.”

 

Finally, he concluded that the faults he had detected merited an order to the agency to vacate the Rule.  He pointed out that it has long been “standard practice under the APA” for a court to order that a rule be vacated when the court determines that “agency regulations are unlawful.”  He quoted a Supreme Court opinion on point, stating that “regulations subject to the APA cannot be afforded the force and effect of law if not promulgated pursuant to the statutory minimum found in that Act.”  The APA itself says that a court shall “hold unlawful and set aside agency action, findings and conclusions” that the court finds to be “arbitrary and capricious, not in accordance with law, in excess of statutory authority, unconstitutional, or made without observance of procedures required by law.”

 

The judge rejected the government’s suggestion that he could go through the Rule stripping out objectionable parts and letting the rest go into effect, commenting that “the APA violations that the Court has found… are numerous, fundamental, and far-reaching.  The Court’s finding that HHS lacked substantive rule-making authority as to three of the five principal Conscience Provisions nullifies the heart of the Rule as to these statutes.  The Court’s finding that the agency acted contrary to two major existing laws (Title VII and EMTALA) vitiates substantive definitions in the Rule affecting health care employment and emergency contexts.  The Court’s finding that HHS failed to give proper notice of the definition it adopted of “discriminate or discrimination” voids that central dimension of the Rule.”  Letting a few selected provisions go into effect would “ignore the big picture: that the rulemaking exercise here was sufficiently shot through with glaring legal defects as to not justify a search for survivors.”

 

He also rejected HHS’s suggestion, common to Trump Administration arguments when courts are finding its executive actions invalid, that his order should be limited in effect to the Southern District of New York, or just to the named plaintiffs in the case, pointing out that this would lead to a proliferation of litigation around the country “to assure that such a Rule was never applied,” finding plenty of precedential support for this position in prior court of appeals opinions supporting trial court orders to vacate unlawfully promulgated rules.

 

“The Conscience Provisions recognize and protect undeniably important rights,” wrote Engelmayer.  “The Court’s decision today leaves HHS at liberty to consider and promulgate rules governing these provisions.  In the future, however, the agency must do so within the confines of the APA and the Constitution.”

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

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

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

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

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

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

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

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

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

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

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

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

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

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