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District of Columbia Court of Appeals Rules on Same-Sex Common Law Marriage Claim

Posted on: May 6th, 2019 by Art Leonard No Comments

“Brian Gill and Rodney Van Nostrand were in a romantic relationship and cohabited for several years beginning in 2004,” begins Judge Phyllis Thompson’s opinion for the District of Columbia Court of Appeals in Gill v. Van Nostrand, 2019 WL 1827998, 2019 D.C. App. LEXIS 159 (April 25, 2019).  “After their romantic relationship waned, and a few months after Mr. Van Nostrand had a ceremonial wedding in Brazil to another man he had met while on a lengthy work assignment in that country, Mr. Gill filed a complaint for legal separation from Mr. Van Nostrand, alleging that the two men are parties in a common law marriage that began in 2004.”  Van Nostrand’s denial that the men were common-law married led to a trial in D.C. Superior Court, resulting in a decision by Judge Robert Okun rejecting Gill’s claim.  Gill’s appeal of that ruling is the subject of the Court of Appeals’ April 25 ruling.  The District of Columbia Court of Appeals is the equivalent of a state supreme court for the District of Columbia.  Its rulings can be appealed to the U.S. Court of Appeals for the D.C. Circuit.

Judge Thompson’s opinion goes to considerable length to explain why the court affirmed Judge Okun’s ruling, and to set out in some detail how District of Columbia trial courts should evaluate claims that same-sex couples had formed common law marriages prior to the U.S. Supreme Court’s ruling in Obergefell v. Hodges, 135 S. Ct. 2584 (2015).  Although the District of Columbia legislated to allow same-sex marriage several years prior to Obergefell, the issue of whether same-sex couples could form such marriages in the District, one of a handful of U.S. jurisdictions that still recognize same-sex marriages, depends on retroactive application of Obergefell’s holding that same-sex couples enjoy a fundamental right to marry as an aspect of liberty guaranteed by the Due Process Clause.  In the case of D.C., of course, the relevant Due Process Clause would be that in the 5th Amendment of the Bill of Rights, whereas the Due Process Clause upon which the Court relied in Obergefell was that in the 14th Amendment, binding on the states.

The D.C. Court of Appeals agreed with Judge Okun that the fundamental right identified by the Supreme Court in Obergefell did apply to the marital aspirations of same-sex couples at the time in question (2004).  The issue is how to decide whether a particular couple was in a common law marriage, when the District’s relevant case law was stated, in large part, in ways pertaining to different-sex couples whose right to marry at the time was legally recognized, as such a right was not then recognized for same-sex couples.  At an early stage in this case, Judge Okun refused Van Nostrand’s motion to dismiss the case, stating “that a party in a same-sex relationship must be given the opportunity to prove a common law marriage, even at a time when same-sex marriage was not legal.”  This led to the trial, in which Van Nostrand testified that he never considered himself to be married to Mr. Gill, and Mr. Gill testified about an exchange of rings, a pledge of monogamy, and his belief that they considered themselves effectively married, if not legally so.

Under District of Columbia precedents, “the elements of common law marriage in this jurisdiction are cohabitation as husband and wife, following an express mutual agreement, which must be in word of the present tense.”  Quoting Coleman v. United States, 948 A.2d 534 (D.C. Ct. App. 2008).  What that means is the people can’t just “drift” into a common law marriage in D.C.  There must be a mutual express agreement, and it can’t just be an agreement that sometime in the future the couple will get married; it must be a present statement of agreeing to live as a married couple, albeit without the formalities of a marriage license and ceremony by a governmentally authorized officiant.  Normally a preponderance of the evidence standard would apply, but depending on the circumstances the court might apply a “clear and convincing evidence” standard, which the court found applicable in this case, where Gill is trying to prove a common law marriage with a man who is legally married to another man.  (The court noted that the clear and convincing evidence standard has been used by D.C. courts in the past when somebody is trying to prove that they have a common law marriage with somebody who is legally married to somebody else.)

“We shall assume arguendo that serious constitutional issues would arise if the trial court’s analysis of common-law marriage operated to the peculiar disadvantage of Mr. Gill and Mr. Van Nostrand as a same-sex-couple, i.e., required them to meet expectations that they as a same-sex couple could meet only with more difficulty than opposite-sex couples would encounter,” wrote Judge Thompson.   “Such an approach is arguably warranted in order to accord same-sex couples who have chosen to share their lives in a union comparable to traditional marriage ‘the same respect and dignity accorded a union traditionally designated as marriage,” quoting Strauss v. Horton, 46 Cal. 4th 364 (Cal. 2009), a decision in which the California Supreme Court ruled that marriages of same-sex couples who were married in California prior to the passage of Proposition 8 would have exactly the same status as all legally-contracted marriages in that state.

The trial court focused on six factors in its analysis in concluding that Gill and Nostrand did not have a common law marriage.

First was the failure of either man, but particularly Mr. Gill, to remember the date on which Gill claimed they exchanged rings that they agreed to wear for the duration of their relationship.  Gill testified that he “decided to surprise Mr. Van Nostrand by purchasing two rings and presenting them to Mr. Van Nostrand along with M& M candies inscribed with “Will you marry me?”  Gill testified that he got down on one knew and proposed to Mr. Van Nostrand, who said yes and allowed Gill to slip one of the rings on his finger.  Van Nostrand denied various particulars of this testimony, and there was no testimonial agreement about the date on which this purportedly occurred. The court found Gill’s testimony, which goes to the crucial question of whether there was an express agreement to be married, as “exceptionally vague,” although, by contrast, Gill remembered precisely both their first date and the first time they had sex with each other.  “The court reasoned that ‘the date on which parties agree to be married surely would be at least as memorable [as], if not more memorable . . . than the date on which’ the parties first had sexual relations ‘or first had a “real date” at a restaurant,’” wrote Thompson.  Gill criticized the judge’s “overreliance” on this factor, but the appeals court did not consider this “unfairly prejudicial” or improperly expecting the parties “to meet expectations of traditional marriage that they, as a same-sex couple, could meet only with difficulty.”  Since the date in question is the date when Gill claims to have proposed marriage, proffered a ring, and received an affirmative response from Von Nostrand, the court found failure to remember the date was not an “unreasonable factor to consider,” taking into account that it was not the only or dispositive factor, merely one of several.

Secondly, the trial court found that neither of the men “told their friends or family about the alleged marriage (or perhaps more correctly, the alleged ‘entry into a commitment comparable to marriage’) and the couple did not commemorate it with a ceremony or celebrate it by going on a honeymoon.”  The court did find that at that time both parties’ families had “harsh anti-gay views” which could explain why there was no contemporaneous communication to them about this topic, and the court acknowledged that “same-sex couples, prior to the legalization of same-sex marriage, might have been less likely to have a public ceremony or honeymoon,” but, pointed out Thompson, the question was “how these parties and their friends in the gay community marked or signified important events in their romantic lives,” and evidence was lacking as to that.  Traditionally, “holding out” as married to one’s relevant community is an important signifier of common law marriage, and there was nothing stopping a same-sex couple from taking a honeymoon trip to celebrate their new relationship.  Gill attempted to show that a European trip the men took in 2005 was their “honeymoon,” but Van Nostrand testified to the contrary.

Furthermore, there was evidence that Van Nostrand was partial to “celebrating events in a flamboyant manner,” as shown by his marriage to Weller da Silva, the Brazilian man whom he legally married in April 2014.  Related Thompson, “Mr. Van Nostrand delivered the proposal while the pair were in a hot-air balloon over the Serengeti, created an album commemorating the proposal, told family members and friends, med Mr. da Silva’s family, and, after the two were married, went on a honeymoon trip to Ecuador and the Galapagos Islands.”  (Sounds fab!!)  The trial court credited Van Nostrand’s testimony that “he would not have entered into a marriage with [Gill] without commemorating such an event with … pomp and circumstance” and the evidence showed that Van Nostrand had the financial ability to sustain such activities, as shown by the “shared history of foreign travel” of the two men during their relationship.

The third factor was that the parties “never inscribed their rings,” a step that Van Nostrand credibly testified they would have done had they considered themselves married.  The court also noted that when marriage became available in Massachusetts, Van Nostrand asked Gill whether he wanted to go there to get married and Gill said no.  He also testified that he asked Gill about having their rings inscribed, but Gill declined, and also declined to enter into a registered domestic partnership, which became available in D.C.  Furthermore, D.C. enacted marriage equality in 2010, but the men did not take the step of formalizing their relationship as a marriage then.  Gill criticized the trial court’s reliance on this factor, but the court found that Van Nostrand credibly testified that these were “the steps he would have taken to symbolize and validate that the parties’ relationship had advanced to a mutual commitment comparable to marriage.”  Here, the court referred to a ruling last year by the Colorado Court of Appeals, Hogsett v. Neale, 2018 WL 6564880, which placed some weight on the failure of a lesbian couple to go out of state to get married as a factor in determining that they did not have a common law marriage under Colorado law.

The fourth factor was that “the parties maintained largely separate finances.”  The house in which they lived together from 2005 was only in Van Nostrand’s name, they had no joint bank accounts or credit card accounts, and even though they discussed creating wills, powers of attorney, and so forth, only Van Nostrand made and executed such documents.  The trial court observed that “although [Gill] was supposed to draft documents giving [Van Nostrand] these same benefits and responsibilities, he failed to do so.”  By contrast, shortly after Van Nostrand married da Silva, they established joint bank accounts and executed wills, powers of attorney and the like.  (A docket search shows that sometime after his marriage to da Silva, Van Nostrand sought to evict Gill from the D.C. home, resulting in litigation in which Gill sought, without success, injunctive relief against the eviction, before a different D.C. trial judge. There is no published opinion, and Judge Okun’s decision in this case is apparently not published, either.)

The fifth factor was Gill’s failure to object or to claim he was in a common law marriage with Van Nostrand when he was informed that Van Nostrand planned to marry da Silva in Brazil.  Gill’s response to this news was not to state that they needed to get divorced first in order for that marriage to take place.  He raised the issue “only after realizing that this would affect” his beneficiary status in terms of Van Nostrand’s employee benefits.  As the court pointedly notes, he seemed to have sprung into action when he was removed from coverage under Van Nostrand’s employment-related health insurance.  He went to an attorney and apparently first learned about the possibility of claiming a common law marriage at that point.  “Mr. Gill asserts that he reacted as he did because he was not aware that the parties’ relationship gave him legally enforceable rights vis-à-vis Mr. Van Nostrand,” observed the court.  The court of appeals found this to be “understandable” as the parties are not lawyers, and the trial court did not deem this as a determinative factor in the analysis.  However, wrote Thompson, “we think the trial court exercised reasonable skepticism in light of Mr. Gill’s financial incentive to claim that the parties had a common-law marriage.  Courts have long ‘regarded common-law marriage as a fruitful source of fraud and perjury,’” quoting In re Estate of Danza, 188 App. Div. 2d 530, 591 N.Y.S. 2d 197 (1992).

Finally, the sixth factor concerns the growing body of court decisions about retroactive common law marriage claims, and particularly a case in which a Pennsylvania trial court did find a common law marriage, In re Estate of Carter, 159 A.3d 970 (Pa. Super. Ct. 2017).  Carter presented ideal facts to find a same-sex common law marriage.  There was a marriage proposal and a diamond ring that Mr. Hunter gave Mr. Carter on Christmas Day 1996, a day easy to remember and prove. Mr. Carter then gave Hunter an engraved diamond ring on February 18, 1997, with the date inscribed, and the men faithfully observed that date as their anniversary for 16 years until Carter’s death.  They had joint banking and investment accounts, owned their home together with a joint mortgage, had mutual wills and powers of attorney, and referred to each other as spouses.  While Judge Okun disclaimed requiring that all these factors be satisfied in order to find a common law marriage for a same-sex couple formed prior to the legalization of same-sex marriages, he reasoned that Gill’s “failure to prove any of these factors substantially undercuts his effort to prove the existence of a common law marriage.”  In this case, Judge Okun found that the men had at best “an agreement to get married at some point in the future.” Wrote Thompson, “We cannot say that the trial court’s reliance on Carter as persuasive authority and its resultant analysis were legally or factually erroneous.”

In conclusion, wrote Thompson, “For all the foregoing reasons, we are satisfied that the evidence did not compel the trial court to conclude that the parties had an express mutual agreement to be permanent partners with the same degree of commitment as the spouses in a ceremonial marriage.  The evidence permitted the court to conclude, as it did, that the parties never expressly agreed to be married, in the present tense.”  And that decides the case consistent with D.C. case law.

Gill is represented by Aaron Marr Page and Christopher J. Gowen.  Jack Maginnis represents Van Nostrand.  As noted, this ruling could be appealed to the U.S. Court of Appeals for the D.C. Circuit.  Federal question jurisdiction is not required for an appeal from the D.C. local courts on questions of D.C. common law, but if it were, this case arguably presents an underlying constitutional question concerning the jurisdiction’s obligation to recognize the fundamental rights of same-sex couples to enter into common law marriages, and the question whether the trial court’s analysis did not adequately respect that right could still be argued on appeal.  However, Judge Thompson took great lengths to reiterate the D.C. Court of Appeals’ view that the court had to take account of contemporary circumstances pre-Obergefell in avoiding unfairly prejudicing the question by imposing unreasonable expectations on how same-sex couples intended to form a common law marriage would have acted in 2004, and that the trial court had done that adequately in this case.

Court Orders New York State to Pay Brooklyn Woman $125,000 for Using Her Photo in HIV Discrimination Ad Campaign

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

New York Court of Claims Judge Thomas H. Scuccimarra has decided that the State of New York should pay Avril Nolan $125,000 for using her photo in an HIV Discrimination Advertising Campaign without a disclaimer that the person in the picture was a “model.” The November 8 ruling came after the Appellate Division court in Brooklyn ruled last January that the use of the photo in print and on-line advertisements, in which the statement “I AM POSITIVE (+)” appeared next to the photo, was defamatory as a matter of law, and sent the case back to the Court of Claims for a determination of damages. Ms. Nolan is not HIV-positive.

The case is Nolan v. State of New York, 2018 N.Y. Misc. LEXIS 5887, 2018 N.Y. Slip Op 51789(U) (Ct. Claims, Nov. 8, 2018).

According to Judge Scuccimarra’s opinion, “Jena Cumbo, the photographer, had taken the photograph as part of a ‘street-style’ photography piece for Soma magazine, briefly profiling those photographed about their musical interests.” Cumbo did not have Nolan sign a release and, without asking her permission, sold the photograph to Getty Images, a company that compiles and sells stock photos for use in publications, advertisements, and so forth.

The State Division of Human Rights, which enforces the New York Human Rights Law’s ban on discrimination, was planning an advertising campaign to educate the public that it is illegal to discriminate against people because they are living with HIV. Instead of finding people living with HIV who might be willing to be photographed for such advertising, the DHR contacted Getty Images and bought the right to use Nolan’s photograph. Getty mistakenly represented to SDHR that Nolan had signed a general release for use of her photograph.

The Court of Claims hearing about damages to be awarded to Nolan focused on how she heard about the advertisement, her subsequent contacts with AM New York, which ran the ad, and the DHR, and the impact its publication had on her life.

Nolan, an Irish immigrant who was working for a public relations company in the fashion industry when the ad was published, learned about the ad on the morning of April 3, 2013, when she arrived at work and saw a notice an acquaintance had posted on her Facebook page, asking whether she had been in that morning’s issue of AM New York. She later received a private message from the same acquaintance with an image of the advertisement. She testified that when she saw the image she “was completely shocked” and “confused,” seeing the “words, ‘I am positive,’ beside my face, I was devastated.” She testified that she felt her “world was just falling down around her,” especially because AM New York was a “big target” for two of her clients, including an important new one.

She got a copy of the newspaper, and testified that she felt “sick to the bottom of my stomach.” She feared for her career in the intensely competitive atmosphere of the office where she was working. On advice of a friend, she told her bosses that morning, showing them the newspaper. She testified that she was “very, very emotional” and “couldn’t stop crying” as she spoke to them. Although her bosses expressed shock, she says that they “calmly went into crisis PR mode,” assessing how it could have happened and whether any clients could have seen it. They did not fire her, as she had feared.

She contacted the photographer, her mother (a psychologist, in Ireland), some friends, and an aunt who had been her mentor when she arrived in New York. Her aunt said she would find a lawyer to represent her.

The photographer contacted AM New York, Getty and the DHR, and put Nolan in touch with a DHR employee by email, who informed her, “After speaking with a Getty representative we have been told we are not liable. We are acting in good faith to remove the image based on the model’s request.” The DHR spokesperson asked Nolan to send them an email stating she would not hold DHR liable and said, “We need the email sooner rather than later as a number of publications are on deadline and are scheduled to move forward with the campaign with Ms. Nolan’s image.” Nolan responded, “Discussing this matter to get further advice but please remove my image from the advertisements. This has already caused enough problems and embarrassment.”

After her email to DHR, Nolan heard nothing further from the State to discuss the ad, but publication was quickly discontinued. Nolan testified to suffering considerable emotional distress, but over the next few months the constant thoughts about who might have seen the ad and how it might affect her subsided, although she claimed it took “a couple years” to rebuild her confidence. It was not until the discovery process for this lawsuit that she found out that the ad had been used in four print publications and three online publications, which triggered again her concerns about how many people might have seen it. Despite a few incidents, the issue generally did not come up or have any substantial effect on her work.

When she was asked during the hearing about what this “association with HIV” meant to her, she testified that while unfortunate, there is “so much stigma around it. . . It’s not like I was in an ad for cancer treatment” where sympathy would be elicited. “There’s a lot of negativity around it,” she testified, “and there’s a lot of associations that people jump to incorrectly about your lifestyle. People think you’re easy, or you’re promiscuous. There’s a lot of just questions around your sexual behavior and your sexual activity. It makes people really think about something so personal to you. It also brings up drug use and just all of these things that I did not want to be associated with and was very embarrassed to be associated with. This goes much deeper, and it really calls into question you as a person and your lifestyle.”

Wrote Judge Scuccimarra, “On cross-examination, claimant confirmed that she did not lose her job nor did she miss any time from work when the advertisement came out. She did not lose any friends. No one other than the acquaintance who first told her about the ad, her Pilates teacher and the outside producer [from an ad shoot] ever informed her that they recognized her as the person depicted in the ad. Indeed, when claimant conducted an online search that day she was unable to see a copy of the advertisement.”

The judge reviewed testimony by several witnesses about the psychological impact of the ad on Nolan, leading to the conclusion that she had been tense and nervous in the period following the publication, but the effects dissipated with time and eventually returned to normal.

As the Appellate Division had ruled back in January, for the purposes of defamation liability falsely labelling somebody as HIV positive fell into the “loathsome disease” category, in spite of changing public attitudes about HIV/AIDS, in which some injury is presumed and the plaintiff is entitled to damages without any requirement to show financial harm. However, the amount to award is up to the discretion of the court, taking into account all the circumstances, and courts will engage in comparisons with the amounts awarded in other cases, comparing the factual situations on some rough scale of fair compensation. Judge Scuccimarra wrote, “the court credits Ms. Nolan’s assessment of a culture of competition at her job, and in the public relations field generally, that left her particularly vulnerable as a young woman to the extreme anxiety and distress she suffered upon publication of the defamatory material. The court also credits the increased anxiety she experienced when imagining how many people could potentially see the ad and make judgments about her that she feared. By all accounts, Ms. Nolan was sensitive, but had learned to hide her feelings somewhat in her two years in the competitive world of New York fashion public relations. This event credibly triggered a setback for her in her confidence and outward demeanor, but she appears to have come out of the experience. She did not lose friends or beaux, and ultimately moved on from her job and succeeded in a new venture.”

The judge decided that based on the “humiliation, mental suffering, anxiety and loss of confidence suffered by this young woman at the beginning of her career, and at the beginning of her growing independence, the vast extent to which the defamatory material was circulated – albeit for the laudatory purpose of getting public service information out to as many people as possible – and all the circumstances herein,” a reasonable compensation would be $125,000, with appropriate interest from the date of the determination of liability on June 18, 2015, which was the date when Judge Scuccamarra had first ruled in her favor prior to the state’s appeal, as well as a refund to her of the fees for filing her lawsuit in the Court of Claims.

Nolan was represented by attorney Erin E. Lloyd of the firm Lloyd Patel LLP. Assistant Attorney General Cheryl M. Rameau of the Attorney General’s Office represented the State of New York.

California Judge Issues Unprecedented Ruling in Favor of Baker Who Declined to Make Wedding Cake for Same-Sex Couple

Posted on: February 8th, 2018 by Art Leonard No Comments

Breaking a consensus among courts that has developed over the past several years that people with religious or moral objections to same-sex weddings are not entitled to exempt their business from selling goods or services for such events, Kern County (California) Superior Court Judge David Lampe ruled on February 5, 2018, in Department of Fair Employment and Housing v. Miller, BCV-17-102855, that Cathy Miller, owner of Cathy’s Creations, Inc., doing business as Tastries Bakery in Bakersfield, California, is entitled to a First Amendment exemption from complying with California’s law that bans sexual orientation discrimination by businesses.  Judge Lampe is the first to rule in favor of a business in such a case.

Miller refused to make a wedding cake for Eileen and Mireya Rodriguez-Del Rio, who came to her bakery in August 2017 to plan for a celebration to take place in October.  They had selected a design of a cake in the display case, but since their celebration would not be until October, the transaction would be for Miller to prepare a cake specifically for their event.  “The couple did not want or request any written words or messages on the cake,” wrote the judge in his opinion.  Nonetheless, Miller refused to make it because of her religious objections to same-sex marriage, and offered to refer them to another bakery in town that was happy to make wedding cakes for same-sex couples.

Eileen and Mireya filed an administrative complaint, charging Miller and her business with a violation of the Unruh Civil Rights Act, California’s law that prohibits discrimination by businesses.  The Department of Fair Employment and Housing, with is charged with enforcement of the law, filed suit against the bakery, asking the court to issue an injunction requiring that Miller’s business not refuse to make wedding cakes for same-sex couples.

Miller’s defense relied on two provisions of the First Amendment of the U.S. Constitution, one forbidding laws that abridge freedom of speech, and the other forbidding laws that prohibit the free exercise of religion.   Judge Lampe decided that this case could be resolved most easily by reference to the free speech provision, and did not render a ruling on whether the free exercise of religion clause would protect Miller in this case.

The judge accepted Miller “cake artist” argument, the same argument that Jack Phillips of Masterpiece Cakeshop in Colorado is making in his case pending before the U.S. Supreme Court.  Miller and Phillips argue that when they are contracting to produce a cake for a specific event, they are engaging in a creative effort that communicates a message of endorsement for that event.  Under this theory of symbolic speech, they argue, requiring them to make the cake when they do not approve of the event is compelling them to voice a particular message.

They rely on past decisions in which the Supreme Court has found that government officials had violated free speech rights by compelling people to voice particular messages with which they disagree, such as the famous “flag salute” cases first decided during World War II and most recently reiterated in  Wooley v. Maynard, 430 U.S. 705 (1977), in which the Court famously reversed direction on this issue, overruling its own prior precedent to find that the government cannot compel a student to recite the pledge of allegiance.  Although there are circumstances where the courts have held that government requirements did not impose a substantial burden on free speech, the compelled speech argument has taken on particular weight in several important LGBT-related rulings.

The Supreme Court unanimously ruled in Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995), for example, that Massachusetts civil rights authorities could not compel the organizers of the Boston St. Patrick’s Day Parade to include an LGBT rights contingent in the parade with a banner proclaiming their identity.  The court said this would unconstitutionally compel the parade organizers to include a message in their event that they did not want to include.  Similarly, although more controversially, the Court later ruled in Boy Scouts of America v. Dale, 530 US 640 (2000), that the BSA was not required to allow an openly gay man to service as an adult leader, because that would be compelling them to implicitly send a message of endorsement for homosexuality which they did not want to communicate to their members or the public.  Unlike the unanimous parade decision, however, the Court split 5-4 in the Boy Scouts case, with a minority rejecting the contention that the BSA’s free speech rights would be unconstitutionally burdened.

Despite these rulings, the Court concluded that Congress did not unconstitutionally burden the free speech rights of law schools when it required them to allow military recruiters equal access to their facilities, reasoning that the schools were free to communicate their disagreement with the anti-gay policies then followed by the Defense Department and that hosting the recruiters was not necessarily sending a message of agreement with their policies.  Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47 (2006).  And the Court concluded that a state university law school was not violating the free speech or free exercise rights of conservative Christian students when it required a Christian Legal Society chapter to allow gay students to be members if CLS wanted to be an officially recognized student organization.  Christian Legal Society v. Martinez, 130 S. Ct. 2971 (2010).

It is difficult to follow a consistent thread of reasoning through these cases, each of which presents a slightly different factual context, which is why there is some suspense about how the Supreme Court is going to decide the Masterpiece Cakeshop case.  So far, however, lower courts have been unanimous in ruling that bakers, florists, photographers, videographers, non-religious wedding venues are all required to comply with public accommodations laws (in states where they exist) and provide their services and goods to same-sex couples celebrating their unions.

Judge Lampe, the first to depart from this consensus, accepted Miller’s compelled speech argument.  “No public commentator in the marketplace of ideas may be forced by law to publish any opinion with which he disagrees in the name of equal access,” wrote the judge.  “No baker may place their wares in a public display case, open their shop, and then refuse to sell because of race, religion, gender, or gender identification.”

But, he wrote, this case is different. “The difference here is that the cake in question is not yet baked.  The State is not petitioning the court to order defendants to sell a cake.  The State asks this court to compel Miller to use her talents to design and create a cake she has not yet conceived with the knowledge that her work will be displayed in celebration of a marital union her religion forbids.  For this court to force such compliance would do violence to the essentials of Free Speech guaranteed under the First Amendment.”

Judge Lampe acknowledged that there was a clash of rights here, and no matter which way he ruled, somebody would feel insulted. “The court finds that any harm here is equal to either complainants or defendant Miller, one way or the other. If anything, the harm to Miller is the greater, because it carries significant economic consequences.  When one feels injured, insulted, or angered by the words or expressive conduct of others, the harm is many times self-inflicted.  The most effective Free Speech in the family of our nation is when we speak and listen with respect.  In any case, the court cannot guarantee that no one will be harmed when the law is enforced.  Quite the contrary, when the law is enforced, someone necessarily loses.  Nevertheless, the court’s duty is to the law.  Whenever anyone exercises the right of Free Speech, someone else may be angered or hurt.  This is the nature of a free society under our Constitution.”

The judge acknowledged that the case is more difficult if it is treated as a free exercise of religion case, because the Supreme Court has ruled that neutral state laws of general application do not include within them a constitutional exemption for religious dissenters. “Whether the application of the Unruh Act in these circumstances violates the Free Exercise clause is an open question,” he wrote, “and the court does not address it because the case is sufficiently resolved upon Free Speech grounds.”

Interestingly, the judge’s approach mirrors that of U.S. Solicitor General Noel Francisco in the Masterpiece Cakeshop case before the Supreme Court. In briefing and argument, the Solicitor General placed the government’s support for Jack Phillips’ right to refuse to make the wedding cake entirely on Free Speech grounds, and disclaimed taking any position on his right of free exercise of religion – despite the Trump Administration’s more general position, expressed in a “religious freedom” memorandum by Attorney General Jeff Sessions, that religious free exercise rights should be treated as superior to just about any other legal claim.

Perhaps Judge Lampe’s decision is truly an outlier in the ongoing controversies stemming from the Supreme Court’s ruling in 2015 that same-sex couples have a constitutional right to marry, but on the other hand it may be an accurate prediction of how the Supreme Court will deal with the issue, at least in cases where the goods or services at issue could be plausibly described in terms of expressive content.

Supreme Court Denies Review in Title VII Sexual Orientation Discrimination Case

Posted on: December 11th, 2017 by Art Leonard No Comments

The U.S. Supreme Court announced on December 11 that it will not review a decision by a three-judge panel of the Atlanta-based 11th Circuit Court of Appeals, which ruled on March 10 that a lesbian formerly employed as a security guard at a Georgia hospital could not sue for sexual orientation discrimination under Title VII of the Civil Rights Act of 1964.  The full 11th Circuit denied a motion to reconsider the case on July 10, and Lambda Legal, representing plaintiff Jameka Evans, filed a petition with the Supreme Court seeking review on September 7.  Evans v. Georgia Regional Hospital, 850 F.3d 1248 (11th Cir. 2017), rehearing en banc denied, 7/6/2017, cert. denied, 2017 WL 4012214 (12/11/2017).

At the heart of Lambda’s petition was an urgent request to the Court to resolve a split among the lower federal courts and within the federal government itself on the question whether Title VII, which bans employment discrimination because of sex by employers that have at least 15 employees, can be interpreted to ban discrimination because of sexual orientation.

Nobody can deny that members of Congress voting on the Civil Rights Act in 1964 were not thinking about banning sexual orientation discrimination at that time, but their adoption of a general ban on sex discrimination in employment has been developed by the courts over more than half a century to encompass a wide range of discriminatory conduct reaching far beyond the simple proposition that employers cannot discriminate against an individual because she is a woman or he is a man.

Early in the history of Title VII, the Supreme Court ruled that employers could not treat people differently because of generalizations about men and women, and by the late 1970s had accepted the proposition that workplace harassment of women was a form of sex discrimination. In a key ruling in 1989, the Court held that discrimination against a woman because the employer considered her inadequately feminine in her appearance or behavior was a form of sex discrimination, under what was called the sex stereotype theory, and during the 1990s the Court ruled that a victim of workplace same-sex harassment could sue under Title VII, overruling a lower court decision that a man could sue for harassment only if he was being harassed by a woman, not by other men.  In that decision for a unanimous court, Justice Antonin Scalia opined that Title VII was not restricted to the “evils” identified by Congress in 1964, but could extend to “reasonably comparable evils” to effectuate the legislative purpose of achieving a non-discriminatory workplace.

By the early years of this century, lower federal courts had begun to accept the argument that the sex stereotype theory provided a basis to overrule earlier decisions that transgender people were not protected from discrimination under Title VII.  There is an emerging consensus among the lower federal courts, bolstered by rulings of the Equal Employment Opportunity Commission (EEOC), that gender identity discrimination is clearly discrimination because of sex, and so the 11th Circuit Court of Appeals ruled several years ago in a case involving a transgender woman fired from a research position at the Georgia legislature.

However, the idea that some variant of the sex stereotype theory could also expand Title VII to protect lesbian, gay or bisexual employees took longer to emerge.  It was not until 2015 that the EEOC issued a decision in the Baldwin case concluding that sexual orientation discrimination is a form of sex discrimination, in part responding to the sex stereotype decisions in the lower federal courts.  And it was not until April 4 of this year that a federal appeals court, the Chicago-based 7th Circuit Court of Appeals, approved that theory in a strongly worded opinion by a decisive majority of the entire 11-judge circuit bench, just a few weeks after the 11th Circuit panel ruling in the Jameka Evans case.  Writing for the 7th Circuit in the Hively  case, Judge Diane Wood said, “It would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation.’”

The 11th Circuit panel’s 2-1 decision to reject Jameka Evans’ sexual orientation discrimination claim seemed a distinct setback in light of these developments.  However, consistent with the 11th Circuit’s prior gender identity discrimination ruling, one of the judges in the majority and the dissenting judge agreed that Evans’ Title VII claim could be revived using the sex stereotype theory based on how she dressed and behaved, and sent the case back to the lower court on that basis.  The dissenting judge would have gone further and allowed Evans’ sexual orientation discrimination claim to proceed under Title VII.  The other judge in the majority strained to distinguish this case from the circuit’s prior sex stereotype ruling, and would have dismissed the case outright.

The 7th Circuit’s decision in April opened up a split among the circuit courts in light of a string of rulings by several different circuit courts over the past several decades rejecting sexual orientation discrimination claims by gay litigants, although several of those circuits have since embraced the sex stereotype theory to allow gay litigants to bring sex discrimination claims under Title VII if they could plausibly allege that they suffered discrimination because of gender nonconforming dress or conduct.  Other courts took the position that as long as the plaintiff’s sexual orientation appeared to be the main reason why they suffered discrimination, they could not bring a Title VII claim.

In recent years, several federal trial judges have approved an alternative argument: that same-sex attraction is itself a departure from widely-held stereotypes of what it means to be a man or a woman, and thus that discrimination motivated by the victim’s same-sex attraction is a form of sex discrimination under Title VII.  Within the New York-based 2nd Circuit, several trial judges have recently embraced this view, but three-judge panels of the Court of Appeals consistently rejected it.  Some progress was made last spring, however, when a three-judge panel in Christiansen v. Omnicom Group overruled a trial judge to find that a plaintiff whose sexual orientation was clearly a motivation for his discharge could bring a sex stereotype Title VII claim when he could plausibly allege behavioral nonconformity apart from his same-sex attraction.

More recently, however, the 2nd Circuit agreed to grant en banc reconsideration to the underlying question and heard oral argument in September in Zarda v. Altitude Express on whether sexual orientation discrimination, as such, is outlawed by Title VII.  That case involved a gay male plaintiff whose attempt to rely alternatively on a sex stereotype claim had been rejected by the trial judge in line with 2nd Circuit precedent.  Plaintiff Donald Zarda died while the case was pending, but it is being carried on by his Estate.  Observers at the oral argument thought that a majority of the judges of the full circuit bench were likely to follow the lead of the 7th Circuit and expand the coverage of Title VII in the 2nd Circuit (which covers Connecticut, Vermont and New York).  With argument having been held more than two months ago, a decision could be imminent.

Much of the media comment about the Zarda case, as well as the questioning by the judges, focused on the spectacle of the federal government opposing itself in court.  The EEOC filed an amicus brief in support of the Zarda Estate, and sent an attorney to argue in favor of Title VII coverage.  The Justice Department filed a brief in support of the employer, and sent an attorney to argue that the three-judge panel had correctly rejected the plaintiff’s Title VII claim.  The politics of the situation was obvious: The Trump appointees now running the Justice Department had changed the Department’s position (over the reported protest of career professionals in the Department), while the holdover majority at the EEOC was standing firm by the decision that agency made in 2015.  As Trump’s appointment of new commissioners changes the agency’s political complexion, this internal split is likely to be resolved against Title VII protection for LGBT people.

This is clearly a hot controversy on a question with national import, so why did the Supreme Court refuse to hear the case?  The Court does not customarily announce its reasons for denying review, and did not do so this time.  None of the justices dissented from the denial of review, either.

A refusal to review a case is not a decision on the merits by the Court, and does not mean that the Court approves the 11th Circuit Court of Appeals’ decision.  It is merely a determination by the Court, which exercises tight control over its docket, not to review the case.  Hypothesizing a rationale, one might note that the plaintiff here has not suffered a final dismissal of her case, having been allowed by the 11th Circuit to file an amended complaint focusing on sex stereotype instead of sexual orientation, so she can still have her day in court and there is no pressing need for the Court to resolve the circuit split in her case.  One might also note that Georgia Regional Hospital did not even appear before the 11th Circuit to argue its side of the case, and did not file papers opposing Lambda Legal’s petition until requested to do so by the Court.

On October 11, the Supreme Court Clerk’s office distributed the Lambda petition and some amicus briefs supporting it to the justices in anticipation of their conference to be held October 27. The lack of a response by Georgia Regional Hospital evidently sparked concern from some of the justices, who directed the Clerk to ask the Hospital to file a response, which was filed by Georgia’s Attorney General on November 9, and the case was then put on the agenda for the Court’s December 8 conference, at which the decision was made to deny review.  The responsive papers argued, among other things, that the Hospital had not been properly served with the Complaint that initiated the lawsuit. Those kinds of procedural issues sometimes deter the Court from taking up a case.

For whatever reason, the Court has put off deciding this issue, most likely for the remainder of the current Term. The last argument day on the Court’s calendar is April 25, and the last day for announcing decisions is June 25.  Even if the 2nd Circuit promptly issues a decision in the Zarda case, the losing party would have a few months to file a petition for Supreme Court review, followed by a month for the winner filing papers responding to the Petition.  Even if the Court then grants a petition for review, thus starting the clock running for filing merits briefs and amicus briefs, it is highly likely that once all these papers are submitted, it will be too late in the Term for the case to be argued, so it would end up on the argument calendar for Fall 2018.

Which raises the further question of who would be on the Court when this issue is finally before it? Rumors of retirements are rife, and they center on the oldest justices, pro-LGBT Ruth Bader Ginsburg and conservative but generally pro-gay Anthony Kennedy.  If President Trump gets to nominate successors to either of them, the Court’s receptivity to gay rights arguments is likely to be adversely affected.

Gender Identity Discrimination U.S. Appellate Decisions of the 21st Century (So Far)

Posted on: October 18th, 2016 by Art Leonard No Comments

I am giving a talk at NY Law School under the auspices of the Justice Action Center tomorrow, Oct. 19, about the current controversy over Title IX and the rights of transgender students.  I’ve prepared a case table to distribute at the talk and thought I would post it here as a useful reference.  The table covers U.S. appellate rulings from 2000 to date on gender identity discrimination claims.  I count decisions by the EEOC on appeal from agency determinations to be appellate decisions for purposes of this table.  This table does not include prisoner litigation, benefits claims, name change claims, etc.  The focus is on Title IX, Title VII, other federal sex discrimination laws, and the Equal Protection Clause.

Transgender [Gender Identity] Discrimination Law – Important 21st Century Appellate Rulings:

 

Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir.), cert. denied, 546 U.S. 1003 (2005) (allowing Title VII sex discrimination claim by transgender woman police officer discharged after transitioning).

 

Chavez v. Credit Nation Auto Sales LLC, 641 Fed.Appx. 883 (11th Cir. 2016) (“Sex discrimination [under Title VII] includes discrimination against a transgender person for gender nonconformity.”)

 

Doe v. Brockton School Committee, 2000 WL 33342399 (Mass. App. Ct. 2000) (unofficially published disposition) (junior high school administration preliminarily enjoined from barring transgender student from school based on student’s refusal to wear gender-appropriate clothing as defined by school).

 

Etsitty v. Utah Transit Auth., 502 F.3d 1215 (10th Cir. 2007) (gender identity is not a suspect classification for Equal Protection purposes).

 

Fowlkes v. Ironworkers Local 40, 790 F.3d 378 (2nd Cir. 2015) (Union violates duty of fair representation under National Labor Relations Act by discriminating against transgender woman in operation of hiring hall program).

 

G.G. v. Gloucester County School Board, 822 F.3d 709 (4th Cir. 2016), petition for certiorari pending (district court must defer to DOE/DOJ interpretation of Title IX sex discrimination provision allowing transgender high school student to use bathroom facilities consistent with his gender identity, because regulation is ambiguous and agency interpretation is reasonable). See also 136 S. Ct. 2442 (U.S. Supreme Ct., August 3, 2016), granting stay of preliminary injunction pending a decision on petition for certiorari, or if such petition is granted, pending ultimate disposition of appeal.

 

Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011) (discrimination against a transgender woman because of her gender identity was sex discrimination for purposes of a 14th Amendment equal protection claim, invoking heightened scrutiny).

 

Hispanic Aids Forum v. Estate of Bruno, 16 A.D.3d 294 (N.Y. Appellate Division, 1st Dept. 2005) (landlord did not violate NYC Human Rights Law prohibition of gender identity discrimination by insisting that transgender patrons of commercial tenant use public hallway restrooms consistent with their biological sex rather than their gender identity).

 

Hunter v. United Parcel Service, 697 F.3d 697 (8th Cir. 2012) (granting summary judgment to employer on transgender employee’s Title VII claim because the employer’s decision-maker was unaware of the plaintiff’s gender identity and had a non-discriminatory reason for the discharge).

 

Lusardi v. McHugh, 2015 WL 1607756 (EEOC, April 1, 2015) (employer must allow a transgender employee to use the restroom consistent with the employee’s gender identity).

 

Macy v. Holder, 2012 WL 1435995 (EEOC 2012) (gender identity discrimination claims are actionable under Title VII as sex discrimination claims).

 

Rosa v. Park West Bank & Trust Co., 214 F.3d 213 (1st Cir. 2000) (bank discrimination against a transgender woman violates sex discrimination provision of federal Fair Credit Act).

 

Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000) (The Violence against Women Act [VAWA] covers violence against transgender women; the Act was subsequently amended to clarify that it covers violence against persons because of their gender identity).

 

Smith v. City of Salem, Ohio, 378 F.2d 566 (6th Cir. 2004) (allowing Title VII sex discrimination claim and equal protection claim [heightened scrutiny] by a transgender woman discharged as firefighter after transitioning).

Federal Court Issues Nationwide Injunction to Stop Federal Enforcement of Title IX in Gender Identity Cases

Posted on: August 22nd, 2016 by Art Leonard No Comments

A federal district judge in Wichita Falls, Texas, has issued a “nationwide preliminary injunction” against the Obama Administration’s enforcement of Title IX of the Education Amendments Act to require schools to allow transgender students to use restroom facilities consistent with their gender identity. Judge Reed O’Connor’s August 22 ruling, State of Texas v. United States of America, Civ. Action No. 7:16-cv-00054-O (N.D. Texas), is directed specifically at a “Dear Colleague” letter dated May 13, 2016, which the Department of Justice (DOJ) and Department of Education (DOE) jointly sent to all the nation’s schools subject to Title IX, advising them of how the government was now interpreting federal statutes forbidding discrimination “because of sex.”  The letter advised recipients that failure to allow transgender students’ access to facilities consistent with their gender identity would violate Title IX, endangering their eligibility for funding from the DOE.

The May 13 letter was sent out shortly after the U.S. Court of Appeals for the 4th Circuit, based in Richmond, had ruled in April that this interpretation by the Administration, previously stated in filings in a Virginia lawsuit, should be deferred to by the federal courts.  G.G. v. Gloucester County School Board, 822 F.3d 709.    That lawsuit is about the right of Gavin Grimm, a transgender boy, to use boys’ restroom facilities at his Gloucester County, Virginia, high school.  The ACLU had filed the case on Grimm’s behalf after the school district adopted a rule forbidding students from using single-sex-designated facilities inconsistent with their “biological sex” as identified on their birth certificates, a rule similar to that adopted by North Carolina in its notorious H.B.2, which is itself now the subject of several lawsuits in the federal district courts in that state.  After the 4th Circuit ruled, the federal district judge hearing that case, Robert Doumar, issued a preliminary injunction requiring that Grimm be allowed access to the boys’ restrooms while the case is pending, and both Judge Doumar and the 4th Circuit Court of Appeals refused to stay that injunction.  However, the U.S. Supreme Court voted 5-3 to grant the school district’s request for a stay on August 3.  Judge O’Connor prominently mentioned the Supreme Court’s action in his opinion as helping to justify issuing his preliminary injunction, commenting that the case presents a question that the Supreme Court may be resolving this term.

Underlying this and related lawsuits is the Obama Administration’s determination that federal laws banning sex discrimination should be broadly interpreted to ban discrimination because of gender identity or sexual orientation. The Administration adopted this position officially in a series of rulings by the Equal Employment Opportunity Commission (EEOC), the agency charged with enforcing Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination in the workplace.  This interpretation was in line with prior decisions by several federal circuit courts, ruling in cases that had been brought by individual transgender plaintiffs to challenge discrimination under the Violence against Women Act (VAWA), the Fair Credit Act (FCA), and Title VII.  These are all “remedial statutes” that traditionally should receive a liberal interpretation in order to achieve the policy goal of eliminating discrimination because of sex in areas subject to federal legislation.  Although the EEOC and other federal agencies had rejected this broad interpretation repeatedly from the 1960s onward, transgender people began to make progress in the courts after the Supreme Court ruled in 1989 that sex-stereotyping by employers – disadvantaging employees because of their failure to comply with the employer’s stereotyped view of how men and women should act, groom and dress – could be considered evidence of sex discrimination, in the case of Price Waterhouse v. Hopkins.  While some of these courts continue to reject the view that gender identity discrimination, as such, is automatically illegal under these statutes, they have applied the sex-stereotype theory to uphold lawsuits by individual transgender plaintiffs, especially those who are discharged in response to their announcement that they will be transitioning or when they begin their transition process by dressing in their desired gender.

The Education Department built on this growing body of court rulings, as well as on the EEOC’s rulings, when it became involved in cases where transgender students were litigating over restroom and locker room access. DOE first expressed this view formally in a letter it sent in connection with a lawsuit against an Illinois school district, participated in negotiating a settlement in that case under which the school district opened up restroom access, and then began to take a more active approach as more lawsuits emerged.  By earlier this year DOE and DOJ were ready to push the issue nationwide after the 4th Circuit’s ruling marked the first federal appellate acceptance of the argument that this was a reasonable interpretation of the existing regulation that allows school districts to provide separate facilities for boys and girls, so long as the facilities are comparable.  DOE/DOJ argue that because the regulation does not specifically state how to resolve access issues for transgender students, it is ambiguous on the point and thus susceptible to a reasonable interpretation that is consistent with the EEOC’s position on workplace discrimination and the rulings that have emerged from the federal courts under other sex discrimination statutes.  Under a Supreme Court precedent, agency interpretations of ambiguous regulations should receive deference from the courts if those interpretations are reasonable.

The May 13 letter provoked consternation among officials in many states, most prominently Texas, where Attorney General Ken Paxton took the lead in forming a coalition of about a dozen states to file this joint lawsuit challenging the DOE/DOJ position. Paxton aimed to bring the case in the federal court in Wichita Falls before Judge O’Connor, an appointee of George W. Bush who had previously issued a nationwide injunction against the Obama Administration’s policy of deferring deportation of undocumented residents without criminal records and had also ruled to block an Obama Administration interpretation of the Family and Medical Leave Act favoring family leave for gay employees to care for same-sex partners.  Paxton found a small school district in north Texas, Harrold Independent School District, which did not have any transgender students but nonetheless adopted a restrictive restroom access policy, to be a co-plaintiff in the case in order justify filing it in the Wichita Falls court.  Shortly after Paxton filed this case, Nebraska Attorney General Doug Peterson put together another coalition of nine states to file a similar lawsuit in the federal district court in Nebraska early in July.

These cases rely heavily on an argument that was first proposed by Alliance Defending Freedom (ADF), the anti-gay “Christian” public interest law firm, in a lawsuit it brought in May on behalf of some parents and students challenging the settlement of the Illinois case, and a “copycat” lawsuit filed by ADF in North Carolina. The plaintiffs argue that the DOE/DOJ position is not merely an “interpretation” of existing statutory and regulatory requirements under Title IX, but rather is a new “legislative rule,” imposing legal obligations and liabilities on school districts.  As such, they argue, it cannot simply be adopted in a “guidance” or “letter” but must go through the formal process for adopting new regulations under the Administrative Procedure Act. This would require the publication of the proposed rule in the Federal Register, after which interested parties could submit written comments, perhaps one or more public hearings being held around the country to receive more feedback from interested parties, and then publication of a final rule, which would be subject to judicial review in a case filed in a U.S. Court of Appeals.  (This is referred to as the “notice and comment” process.) Neither DOE nor any other agency that has adopted this new interpretation of “sex discrimination” has gone through this administrative rulemaking process.  Additionally, of course, the plaintiffs contend that this new rule is not a legitimate interpretation of Title IX, because Congress did not contemplate this application of the law when it was enacted in the 1970s.

In his August 22 ruling, O’Connor concluded that the plaintiffs met their burden to show that they would likely succeed on the merits of their claim, a necessary finding to support a preliminary injunction. As part of this ruling, he rejected the 4th Circuit’s conclusion that the existing statute and regulations are ambiguous and thus subject to administrative interpretation.  He found it clear based on legislative history that Congress was not contemplating outlawing gender identity discrimination when it passed sex discrimination laws, and that the existing regulation allowing schools to provide separate facilities for boys and girls was intended to protect student privacy against being exposed in circumstances of undress to students of the opposite sex.  In the absence of ambiguity, he found, existing precedents do not require the courts to defer to the agency’s interpretation.  He found that the other prerequisites for injunctive relief had been met, because he concluded that if the enforcement was not enjoined, school districts would be put to the burden of either changing their facilities access policies or potentially losing federal money.  He rejected the government’s argument that the lack of any imminent enforcement activity in the plaintiff states made this purely hypothetical.  After all, the federal government has affirmatively sued North Carolina to enjoin enforcement of the facilities access restrictions in H.B.2.

Much of O’Connor’s decision focuses on the question whether the plaintiffs had standing to challenge the DOE/DOJ guidance in a district court proceeding and whether the court had jurisdiction over the challenge. He found support for his ruling on these points in a recent decision by the 5th Circuit Court of Appeals (which has appellate jurisdiction over cases from Texas) in a lawsuit that Texas brought against the EEOC, challenging a “guidance” about employer consideration of applicant arrest records in deciding whether to hire people.  Texas v. EEOC, 2016 WL 3524242.  Noting disparate enforcement of criminal laws against people of color, the EEOC took the position that reliance on arrest records has a disparate impact on people of color and thus potentially violates Title VII.  A 5th Circuit panel divided 2-1 in determining that the state had standing to maintain the lawsuit and that the district court had jurisdiction to rule on the case.   This suggests the likelihood that the Administration may have difficulty persuading the 5th Circuit to overrule O’Connor’s preliminary injunction on procedural grounds if it seeks to appeal the August 22 ruling.

The Administration argued in this case that any preliminary injunction by O’Connor should be narrowed geographically to the states in the 5th Circuit, even though co-plaintiffs included states in several other circuits, but O’Connor rejected this argument, agreeing with the plaintiffs that the injunction should be nationwide.  He emphasized the regulation allowing schools to have sex-segregated restroom facilities.  “As the separate facilities provision in Section 106.33 is permissive,” he wrote, “states that authorize schools to define sex to include gender identity for purposes of providing separate restrooms, locker rooms, showers, and other intimate facilities will not be impacted” by the injunction.  “Those states who do not want to be covered by this injunction can easily avoid doing so by state law that recognized the permissive nature” of the regulation.  “It therefore only applies to those states whose laws direct separation.  However, an injunction should not unnecessarily interfere with litigation currently pending before other federal courts on this subject regardless of state law.  As such, the parties should file a pleading describing those cases so the Court can appropriately narrow the scope if appropriate.”  This reference is directed mainly to the plethora of lawsuits pending in North Carolina, in which the federal government is contending that H.B.2 violates Title IX and Title VII.

Kansas’ Narrow Interpretation of Obergefell Rejected by Federal District Court

Posted on: July 25th, 2016 by Art Leonard No Comments

U.S. District Judge Daniel D. Crabtree, who had ruled on November 4, 2014, that the Kansas constitutional amendment and statutes banning same-sex marriage were unconstitutional, has issued a final ruling in that case, Marie v. Mosier, 2016 WL 3951744 (D. Kan., July 22, 2016), effectively finding that Kansas officials cannot be trusted to comply voluntarily with the Supreme Court’s marriage equality ruling in Obergefell v. Hodges, 135 S. Ct. 2584 (2015), without the prod of an injunction that would subject them to contempt proceedings if they fail to comply fully.  In light of the initial refusal by the state to issue appropriate birth certificates for children of lesbian couples, and continuing ambiguity about how state officials will handle such situations, the court rejected the state’s argument that the lawsuit should be dismissed as “moot” or that its prior rulings should be vacated as unnecessarily in light of Obergefell.

When Judge Crabtree issued his preliminary injunction in 2014, the 10th Circuit Court of Appeals, which has jurisdiction over Kansas, had already issued rulings prohibiting Oklahoma and Utah from enforcing their laws against same-sex marriage, and the U.S. Supreme Court had refused to review those rulings on October 6, 2014, so they had gone into effect.  Shortly afterward, however, the 6th Circuit had ruled against marriage equality, and in January 2015 the Supreme Court announced it would review that decision.  On June 26, 2015, the Supreme Court ruled in Obergefell that same-sex couples were entitled to the same marriage rights under state law as different-sex couples.  After Obergefell, the Kansas defendants moved to dismiss Marie v. Mosier as “moot,” but the plaintiffs moved instead to have the court issue a declaration that the Kansas ban on marriage equality was unconstitutional and to issue an injunction requiring the state to comply with Obergefell.  This responded to an argument that was being made by some marriage equality resisters that the Supreme Court’s decision applied only to states in the 6th Circuit, and to the announced opposition to the Supreme Court’s decision by Kansas Governor Sam Brownback and other Kansas officials.  The plaintiffs feared that Kansas would not give full effect to the “equality” requirement of the Supreme Court’s decision, despite assurances by the state’s attorney that it would do so.

At that time, Judge Crabtree decided to give the state the benefit of the doubt. On August 10, 2015, he issued a declaratory judgment, but withheld injunctive relief to give the state time to comply voluntarily.  Voluntary compliance did follow in many respects, such as issuing marriage licenses, but the plaintiffs responded to the state’s contention that it had complied voluntarily by bringing to the court’s attention two instances in which state officials had refused to issue birth certificates listing both mothers of children born to married lesbian couples.  Indeed, in one of those cases the mothers had gone into state court to get an order to issue an appropriate birth certificate, and the state initially resisted the state court order.  Subsequently both of those cases were resolved by the state issuing appropriate birth certificates, but contradictory statements issued from officials of the Kansas Department of Health and Environment, one suggesting that in future same-sex couples would be treated the same as different-sex couples when children were conceived through donor insemination, but the other stating that same-sex couples would have to alert the department in advance so that a case-by-case determination could be made about whether a birth certificate listing both women would be issued.

Judge Crabtree concluded that the case was not “moot” and an injunction was necessary. In this case, there was clear evidence that state officials were complying reluctantly with Obergefell, sometimes only under the prodding of court orders, so the court could not conclude that there was no longer an issue of whether same-sex couples in Kansas could expect to receive equal treatment from all instrumentalities of the state government in all circumstances.

“Exercising its remedial discretion,” wrote Crabtree, “the court has decided to grant a permanent injunction forbidding defendants (and their successors) from enforcing or applying any aspect of Kansas law that treats same-sex married couples differently than opposite-sex married couples. As the court noted last August, a significant value exists in giving public officials a reasonable opportunity to comply voluntarily with a mandate by the Supreme Court.  The record here shows that defendants have said they will comply with Obergefell and, in many instances, they have acted to implement the changes that compliance requires.  But even after Obergefell and even after this court’s declaratory judgment, the record also demonstrated one defendant’s department deliberately refused to treat two same-sex married couples in the same fashion it routinely treats opposite-sex couples.  This disparate treatment did not result from oversight, inadvertence, or decisions made at lower levels of the department.  To the contrary, the conduct involved officials who the court would expect to know about Obergefell, this court’s preliminary injunction [from 2014], and the defendants’ assurances that they intended to comply with Obergefell.  This conduct required one same-sex couple to file an action in state court to get something that an opposite-sex couple would have received as a matter of course.”

In reaching this conclusion, Judge Crabtree listed the decisions by judges in numerous other states who issued permanent injunctions against those states after the Obergefell decision upon finding that the cases were not “moot” because of actual or potential failures of those states fully to comply with Obergefell’s equality mandate.  These included decisions from Alabama, Florida, Nebraska, Arkansas, South Dakota, Idaho, and Louisiana.  The only court to reach a contrary conclusion was in South Carolina, where the state government had quickly fallen into line after the Supreme Court refused to review the 4th Circuit’s decision in the Virginia marriage equality case.  Given the birth certificate contretemps in Kansas, the case was clearly distinguishable.

Crabtree sympathized with the plaintiffs’ concern about “whether defendants will comply voluntarily with Obergefell without the judicial oversight that an injunction permits.”  His response to this concern was to provide that the court will maintain supervisory oversight for three years, which means that at the first sign that a government official in Kansas is denying equal treatment to a same-sex couple, direct application can be made to Judge Crabtree for relief without the need to run into state court and start a new lawsuit.  “The court finds that permanent injunctive relief could prevent future same-sex married persons from having to do what the Smiths had to do,” he wrote: “initiate a separate lawsuit and incur expenses to secure the equal treatment that Obergefell promises.”

In rejecting the defendants’ argument that Obergefell was a narrow ruling that did not address the issue of birth certificates for children born to same-sex couples, Crabtree pointed out that Justice Anthony Kennedy’s opinion for the Supreme Court specifically mentioned this issue!  “The Supreme Court found that the rights, benefits, and responsibilities of marital status include ‘taxation; inheritance and property rights; spousal privilege; hospital access; medical decision making authority; adoption rights; the rights and benefits of survivors; birth and death certificates; health insurance; and child custody, support, and visitation rules.’”  By quoting from the Obergefell opinion, Crabtree made clear that Kansas may not impose any different treatment on same-sex couples regarding any of these issues without running afoul of Obergefell.

He also rejected the bizarre argument made by Kansas that one lesbian married couple that encountered birth certificate issues was not entitled to recognition of their marriage under Obergefell because they were married in Canada and the Full Faith and Credit Clause refers on to other states.  Judge Crabtree pointed out that Kansas’s own marriage recognition statute provides that “all marriages which would be valid by the law of the country in which the same are contracted, shall be valid in all courts and places in this state.”  If Kansas automatically recognizes different-sex marriages contracted in other countries, Obergefell’s equality requirement would mandate application of this rule to same-sex marriages.

“In sum,” wrote Crabtree, “defendants’ argument that Obergefell’s holding was narrow is unpersuasive,” and he quoted Justice Kennedy’s comment that a “slower, case-by-case determination of the required availability of specific public benefits to same-sex couples would deny gays and lesbians many rights and responsibilities intertwined with marriage.”  “Perhaps defendants will provide the voluntary compliance with Obergefell that they promise,” Crabtree wrote.  “But the court cannot assign plaintiffs’ constitutional rights to such uncertainty.  In short, defendants’ assurances of future compliance do not provide the reliability that those rights deserve.”

The last issue before the court was an award of attorneys’ fees to the plaintiffs. He ordered them to submit their fee bill promptly, and if Kansas disputes the amount (which they will likely do, since the state’s budget has been decimated by Governor Brownback’s unrealistic tax-cutting measures, which have led, among other things, to a crisis in school funding that caused a confrontation with the state’s Supreme Court), Judge Crabtree will address the issue promptly.

North Carolina Supreme Court Rejects 1st Amendment Challenge to Social Networking Ban for Sex Offenders

Posted on: November 11th, 2015 by Art Leonard No Comments

The North Carolina Supreme Court has rejected a 1st Amendment challenge to a provision of state law that forbids convicted sex offenders from accessing most commercial social networking websites, such as facebook.com. State v. Packingham, 2015 WL 6777114 (Nov. 6, 2015).

 

Lester Packingham, a convicted sex offender, established a facebook.com page using the name J.R. Gerrard. A Durham Police Department officer investigating whether any convicted sex offenders were on facebook.com recognized Packingham from his profile photo, triggering a search of Packingham’s residence that turned up a copy of a notice of “Changes to North Carolina Sex Offender Registration Laws” that specified the kind of social networking sites prohibited to sex offenders that he had signed, so he could not credibly raise a procedural due process argument that he was unaware of the prohibition. The prohibition specifically extends to any commercial social networking website to which minors may subscribe. Facebook.com fits within this description.

 

Packingham was indicted for violating the statute. The trial court denied his motion challenging the facial constitutionality of the provision, finding that it was constitutional as applied to him. He was then sentenced to jail time and probation. The court of appeals reversed, finding that intermediate scrutiny applied to this speech-targeted statute, and that the statute was too vague to withstand review by failing to “target the ‘evil’ it is intended to rectify” because of the sweeping prohibition extending to all social networking websites.

 

The Supreme Court vote was 4-2 to reverse, with one member not participating. Writing for the court, Justice Robert Edmunds held that the statute was a regulation of conduct, not speech, and that the legislature had a rational basis for enacting it in order to protect children from being approached by sex offenders through social networking websites. He pointed out that a sex offender was not barred from using the internet as a whole, and that there were plenty of websites apart from commercial social networking websites where he could express his views and interact with others.

 

Justice Robin Hudson, dissenting, agreed with the court of appeals that the statute regulates speech and fails to meet the test of heightened or strict scrutiny. Justice Cheri Beasley joined Hudson’s opinion in dissent.

 

Packingham is represented by an appointed Appellate Defender, Glenn Gerding. Perhaps the ACLU or a similar free-speech organization will step up and assist Packingham in seeking United States Supreme Court review.  The dissent makes cogent arguments about why the majority decision misses the mark on 1st Amendment grounds.

Woman Wins Second Ruling on Unauthorized Use of Photo in Anti-Discrimination Ad

Posted on: October 27th, 2015 by Art Leonard No Comments

New York Court of Claims Judge Thomas Scuccimarra has ruled that the New York State Division of Human Rights defamed Avril Nolan, a model whose photograph the Division purchased from Getty Images to use in advertisements intended to inform the public that discrimination against people living with HIV is unlawful in New York.  Scuccimarra’s ruling in Nolan v. State of New York, No. 123283, reported on October 27 in the New York Law Journal, was the second win for Nolan, who had also sued Getty Images in New York County Supreme Court and won a ruling on March 6, 2014, from Supreme Court Justice Anil C. Singh, refusing to dismiss her complaint against Getty Images for selling her photograph to the Division without her permission.  Justice Singh’s unpublished opinion is Nolan v. Getty Images (US), Inc., 2014 NY Slip Op 30564(U).

According to Nolan’s complaint against the State Division as described in the Law Journal report, she allowed photographer Jena Cumbo to take her picture in 2011 for use in a feature on New Yorkers interested in music for an online publication, Soma Magazine.  Nolan did not sign a model release, did not specifically authorize any other use of the photograph, and was not paid for it.  Nonetheless, Cumbo sold the photograph to Getty Images, which in turn licensed it to the State Division of Human Rights for use in its anti-discrimination advertisement and poster.

The advertisement appear in April 2013in print editions of Newsday, Metro, and AM New York, and was published in on-line websites by Metro, the Journal News site LoHud.com, and the Albany Times-Union site capitolconfidential.com.  Next to Nolan’s photo were the captions “I AM POSITIVE (+)” and “I HAVE RIGHTS,” and the advertisement also stated that people living with HIV are protected against discrimination under the state’s Human Rights Law.  The clear implication, alleged Nolan, was that she is HIV-positive when in fact she is not.

The earlier lawsuit against Getty Images was a seemingly straightforward application of the state’s privacy statute, which forbids the publication of a person’s image without their written consent for purposes of advertising or trade usage.  Getty had argued that since the Division of Human Rights is a government agency and the advertisement was not published for purposes of selling goods or services, Getty should not be held liable under the law.  This argument was unsuccessful because Getty purchased the photo from photographer Cumbo in order to license its use to ultimate publishers for a fee.  Justice Singh characterized Nolan’s argument against Getty as follows: “Nolan argues that the law places a clear duty on those who trade in photographs and advertise photographs for commercial use, to obtain the written consent of the subject.”  Rejecting Getty’s motion to dismiss Nolan’s claim, Singh wrote, “Contrary to Getty’s argument, a claim lies for placing Nolan’s image in Getty’s catalogue, especially where plaintiff’s photograph is ultimately used in an advertisement, and the use of plaintiffs likeness created a false impression about the plaintiff,” that she was HIV-positive.

Nolan’s lawsuit in the Court of Claims against the State Division of Human Rights, while building on the privacy statute and pointing out that State Division made no effort to determine whether Nolan had authorized the use of her photograph in its advertising campaign (of which she was totally unaware), further claimed that the anti-discrimination advertisement, by implicitly labeling her HIV-positive, can be presumed to have caused her actual monetary injury as well as harming her reputation in society.

Judge Scuccimarra agreed with Nolan that falsely labeling somebody HIV-positive would be considered “per se” defamation under New York law.  That is, the court would presume that somebody so falsely labeled would suffer an actual injury beyond harm to her reputation.  An initial finding that the advertisement would harm Nolan’s reputation was merely the first step to analyzing her claim.  Since she did not specifically allege any particular economic injury as a result of the ads being briefly published — they were withdrawn from publication as soon as she complained to the State Division of Human Rights — she could only maintain her lawsuit if this case falls into the category of “per se” defamation, where the court finds that under the circumstances actual injury can be presumed.

Scuccimarra characterized this as a “thorny” issue, in light of the “shifting attitudes” of society, which have been reflected by a recent ruling, Yonaty v. Mincolla, by the Appellate Division in Albany, that falsely calling somebody gay is no longer deemed “per se” defamatory under New York law.   Scuccimarra noted that the “per se” defamation category has traditionally included falsely stating that somebody is afflicted with a “loathsome” disease that “arouses some intense disgust in society.”  The attorney for the state argued that there was no New York precedent holding that HIV or AIDS is a “loathsome” disease for this purpose.  While implying some reluctance to label those living with HIV in this way, and noting the lack of direct New York precedent, the judge concluded that societal prejudice against HIV-positive people justifies including it within this category.

“Viewed under the current societal lenses,” he wrote, “the asserted defamatory content here, that Ms. Nolan is presently diagnosed as HIV positive, from the perspective of the average person, clearly subjects her to public contempt, ridicule, aversion or disgrace and constitutes defamation per se.  It would be hoped that an indication that someone is suffering from AIDS or that she has been diagnosed as HIV positive would not be viewed as indicative of some failure of moral fiber, or of some communicable danger, however our society is not so advanced.”

Scuccimarra considered it of “no moment” that the photo was used in a public service advertisement rather than a commercial advertisement when considering the part of Nolan’s lawsuit based on the civil rights law’s privacy provision.  He found that there was no dispute that she never provided written consent for this use of her photograph, beyond photographer Cumbo’s original use described above, and that State Division made no attempt to contact her and obtain her consent.  Having found that Nolan stated a claim under the Civil Rights Law and defamation law, Scuccimarra indicated that the next step will be a hearing on damages.

Nolan is represented by Erin Lloyd with the firm of Lloyd Patel.  Lloyd told the Law Journal that they had hoped the case could be resolved without the need for lengthy litigation over damages, but they were ready to go to trial if necessary.  Assistant Attorney General Cheryl Rameau of the New York State Law Department defended the State Division of Human Rights.  The state could obviate the need for a trial on damages by making an appropriate settlement offer.