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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  Justice Singh’s unpublished opinion is Nolan v. Getty Images (US), Inc., 2014 NY Slip Op 30564(U).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, and the Albany Times-Union site  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.

LGBT Legal Organizations Call for Decriminalization of Sex Work as Federal Government Initiates Prosecution of’s Owner and Employees

Posted on: August 26th, 2015 by Art Leonard No Comments

On August 20, leading LGBT rights legal organizations in the United States issued a joint statement supporting Amnesty International’s August 11 Resolution that advocates for the human rights of sex workers, including repeal of laws against prostitution. Just days later, on August 25, the U.S. Department of Homeland Security (DHS) raided the New York City offices of, the world’s largest on-line escorting website, carted away boxes of business records and computers, and arrested the company’s chief executive officer, Jeffrey Hurant, and six employees.

Amnesty International (AI), a non-governmental organization concerned with human rights issues worldwide, called on governments to repeal laws criminalizing sex work, while asking them to move to prevent and combat sex trafficking, to ensure that sex workers are protected from exploitation, and to enforce laws against the sexual exploitation of children. In short, AI suggests that adults should be able to freely consent to engage in sexual activity for compensation without criminal penalty, and that continued maintenance of criminalization exposes all sex workers, whether children or adults, to exploitation, violence, and severe health risks.

Sex work for pay is presently legal in some countries (e.g., Canada, United Kingdom), but outlawed in most. Even those countries that don’t criminalize prostitution as such generally maintain laws against promotion and public solicitation of prostitution. In the United States, every jurisdiction except some counties in Nevada treats all sexual activity for monetary compensation as unlawful, although they differ as to the classification of the offense and potential penalties. The Model Penal Code as adopted in the states decriminalized private consensual sexual activity between adults, but not when such activity involves a commercial transaction, and courts have been unanimous in holding that the Supreme Court’s 2003 decision striking down sodomy laws, Lawrence v. Texas, does not create a protected liberty interest extending to commercial sex or sex between adults and minors.

The LGBT organizations that joined in the statement endorsing AI’s resolution are Transgender Law Center, Gay & Lesbian Advocates & Defenders, Lambda Legal, National Center for Lesbian Rights, and National Center for Transgender Equality.

The Joint Statement explains, “For many LGBT people, participation in street economies is often critical to survival, particularly for LGBT youth and transgender women of color who face all-too-common family rejection and vastly disproportionate rates of violence, homelessness, and discrimination in employment, housing, and education.”

The Joint Statement goes on to describe the various hazards faced by sex workers that are amplified by the criminalization of their activities, with a particular emphasis on the difficulties experienced by transgender sex workers. “Laws criminalizing sexual exchange – whether by the seller or the buyer – impede sex workers’ ability to negotiate condom use and other boundaries, and force many to work in hidden or remote places where they are move vulnerable to violence. Research and experience have shown that these laws serve only to drive the industry further underground, make workers less able to negotiate with customers on their own terms, and put those who engage in criminalized sex work at higher risk for abduction and sex trafficking,” says the Joint Statement. “And as UNAIDS and the World Health Organization have recognized, criminalization also seriously hampers efforts to prevent and treat HIV/AIDS – efforts in which people involved in the sex trades are crucial partners.”

Just days before the Joint Statement was issued, the U.S. Department of Homeland Security (DHS) submitted a Complaint and Affidavit in Support of Arrest Warrants to the U.S. District Court for the Eastern District of New York (Brooklyn) on August 18, seeking to arrest the owner and employees of, described in the complaint as “a commercial male escort advertising site that promotes prostitution.” The complaint quotes advertising itself as the “original and largest male escort service online.” The Complaint was submitted under oath by DHS Special Agent Susan Ruiz, who led the investigation leading to the prosecution. The Complaint requested that its supporting affidavit and warrants be kept under seal until they were executed to prevent the defendants from fleeing the jurisdiction.

On August 25, Homeland Security agents accompanied by NYC Police Department officers appeared at’s offices on West 14th Street in Manhattan to conduct their raid.  They also arrested the employees there and arrested others at their homes, effectively shutting down operation of the website. The defendants were listed in the complaint as Jeffrey Hurant (the owner) and employees Michael Sean Belman, Clint Calero, Edward Lorenz Estanol, Shane Lukas, Diana Milagros Mattos, and Marco Soto Decker. The title of the case on the Complaint is United States of America v. Hurant.

The complaint sets out a detailed description of the website, defining terms, providing graphic descriptions of the activities advertised, and asserting repeatedly that the disclaimers on the site were meaningless and that the entire operation was set up to connect customers with prostitutes.

Anyone seeking a detailed description of the on-line male escort business will find it in this complaint, which became public upon serving of the arrest warrants and was posted later on August 25th on various news websites. The complaint describes each of the defendants (including aliases used by many of them) and their role in the business, including past or present escorting activity by some of them.

The complaint asserts that the term “escort” is a euphemism for a prostitute. The complaint describes and quotes from various escort listings on, including the quotation of rates for services and the listing of specific sexual activity that an escort is willing to engage in. The complaint also notes cross-references in some of the advertisements to another website,, at which can be found detailed accounts by customers of their experiences with the escorts in the form of reviews, including reports on the amount of money charged by the escort.

It is unclear whether this action taken against was a precursor to actions against similar websites operated from the United States as part of a more general crackdown on the use of the Internet for commercial sexual assignations, whether Homeland Security is also targeting heterosexual escort sites, or whether was singled out for prosecution because of the brazenness of its owner, who is quoted in the complaint as having made clear in published interviews that the purpose of the website was to assist escorts in marketing their sexual services.

According to the complaint, Hurant uses as an email address, which is hardly subtle. The complaint quotes Hurant telling one interviewer, “There is no place in this website where somebody says I’ll have sex for money because that is against the law. We can talk about what you look like, what you are, what you like to do, what people say about you in bed. . . People say I’m a great top, people say I fuck like nobody’s business, but you can’t say I’ll fuck you for two hundred bucks.” The website includes a disclaimer that rates quoted by the escorts on the site are only for their time, and that any sexual activity that takes place is a private matter between consenting adults.

In justifying the arrest of the employees as well as the owner, the complaint states, “There is probable cause to believe that anyone employed by the organization was aware that its aim was the promotion of prostitution, based on its publicly-disseminated advertising and promotional material and the content of the site itself.” Illustrating the openness with which went about its business, the complaint describes how the company applied to the Department of Homeland Security for an occupational visa for one of its employees. It also describes an annual public event held by, the “Hookies,” at which awards were bestowed on escorts listed on the site as the “best” in particular categories of sexual performance, and at which Hurant gave his business card to an undercover agent.

The prosecution is premised on 18 U.S.C. Section 1952, a federal statute that provides, in relevant part: “(a) Whoever travels in interstate or foreign commerce or uses the mail or any facility in interstate or foreign commerce, with intent to. . . (3) otherwise promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity, and thereafter performs or attempts to perform – (A) an act described in paragraph . . . (3) shall be fined under this title, imprisoned not more than 5 years, or both. . . (b) As used in this section (i) “unlawful activity” means (1) any business enterprise involving . . . prostitution offenses in violation of the laws of the State in which they are committed or of the United States.”

The complaint cites provisions of New York law criminalizing “promoting prostitution” and engaging in prostitution activity, thus satisfying the federal statutory requirement that the proposed defendants are using a “facility in interstate or foreign commerce” with the intent to “promote” an “unlawful activity.” News reports indicated that the prosecution may also involve charges of “money-laundering,” but that is not specified in the complaint submitted to the federal court to get the arrest warrants.  Of course, the complaint submitted to get the warrant does not limit the scope of the ultimate prosecution. In a footnote, it states that because the complaint was submitted “for the limited purpose of establishing probable cause,” Agent Ruiz did not “set forth each and every fact learned during the course of this investigation.” One might expect that the investigation would include rigorous tax auditing of and its parent corporation, as well as the seven individuals arrested, and that the U.S. Attorney, acting as a prosecutor on behalf of DHS, is likely to assert as broad a range of charges as the results of the DHS investigation may support.

NY Court Dismisses Divorce Petition Where Religious Marriage was Performed Without a License Ten Years Earlier

Posted on: July 10th, 2015 by Art Leonard No Comments

In what may have been the first New York court opinion to cite Obergefell v. Hodges, a Manhattan trial judge ruled on July 2 that a purported marriage between an Orthodox Jewish woman and a man was invalid, even though the parties lived together for ten years after a rabbi performed a marriage ceremony for them without a marriage license.  Devorah H. v. Steven S., 2015 N.Y. Slip Op. 25228 (Sup. Ct., N.Y. Co.).

The parties never obtained a marriage license.  They were living together with their young children from prior marriages in a tiny apartment, and sought help from their rabbi in finding more suitable housing when a complaint by the woman’s ex-husband to the Administration for Children’s Services caused alarm.  The rabbi found them a larger apartment and suggested they should marry before moving.  He then officiated an abbreviated religious marriage ceremony for them on the spot, partially completing a standard form certificate (which he didn’t sign) and urging them to go to City Hall and get a license.  They didn’t follow up, however.

Ten years later the woman filed for divorce and the man moved to dismiss, contending they were never validly married.  The woman relied on NY Domestic Relations Law Sec. 25, which provides that a “properly solemnized” marriage is valid despite the lack of a marriage license.  This is an ancient statute, most likely passed in order to validate religious marriages in the large immigrant community in New York when it was adopted in the early years of the 20th century.  After recounting the extensive testimony of the man, the woman, and the rabbi on the question whether this marriage was “properly solemnized,” the court concluded that the marriage was invalid, noting particularly the rabbi’s testimony that he had repeatedly urged the parties to “go to City Hall” to get a license, and that they had to know that they would need a new solemnization after a license was issued.  The man testified that after they left the rabbi’s office, he had torn up the copy of the certificate that the rabbi gave them.

Supreme Court Justice Matthew F. Cooper’s conclusion, invoking Obergefell, is interesting: “In the over 100 years since the enactment of DRL Sec. 25, the way citizens marry in New York has changed immeasurably. While at one time the wedding ceremony was the central element of the process, that is no longer the case; church weddings are more and more the exception rather than the rule, and the new wage of marriage ceremonies would be almost unrecognizable to earlier generations.  What is key to the process is the marriage license itself.  This is not only true for New York, but for the entire nation.  After all, when the United States Supreme Court issued its historic decision in Obergefell v. Hodges (576 U.S. – [2015]) making the right to same-sex marriage the law of the land, it did so by decreeing that ‘States are required by the Constitution to issue licenses to same-sex couples’ (emphasis added).”

“DRL Sec. 25, in its present form, serves no useful function in today’s world.  Conceivably, if the statute was amended to allow couples who justifiably believed they were legally married with a valid marriage license to protect the marriage from the claim that the license was improperly executed or otherwise defective, that would certainly serve the public interest.  But as it exists now, the statute allows for the wholesale disregard of New York’s licensing requirements – requirements that, as we have seen, play a vital role in insuring that marriages are legally valid.  Until DLR Sec. 25 is repealed or reformed, courts will be forced to grapple with situations like this, where the parties fully understood that they did not legally marry but one side seeks to abuse the statute to attain the financial remedies only available to litigants who are married to one another.”

“In light of the foregoing, it must be concluded that plaintiff cannot show that she and defendant are married, and therefore has failed to prove an essential element of her prima facie case for divorce.”

The court evidently did not consider the couples’ ten years of cohabitation after the quick marriage ceremony to be a basis for finding the woman eligible to seek a formal divorce and disposition of assets.  This apparently rests on the court’s conclusion that the woman could not under the circumstances claim justifiable reliance on a belief that she was in a valid marriage with the man.  The court noted the “Rashomon effect” in the parties’ testimony, the man, the woman and the rabbi each providing a different account of what happened, leaving the court to sort out questions of credibility, which were resolved against the woman.

Devorah H. is represented by Eurydice A. Kelley, Steven S. by Jeffrey S. Kofsky.

Supreme Court Issues Historic Marriage Equality Ruling

Posted on: June 26th, 2015 by Art Leonard No Comments

The Supreme Court ruled today that “same-sex couples may exercise the right to marry” and that “there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.”  Writing for the Court, Justice Anthony M. Kennedy, Jr., grounded these marital rights in the 14th Amendment’s guarantee that no State may deprive any person of “liberty” without due process of law or deny to any person the “equal protection of the laws.”  He saw the claimed rights in this case as logical extensions of the rights recognized by the Court through his opinions in United States v. Windsor (2013) and Lawrence v. Texas (2003).   Obergefell v. Hodges, No. 14-556, 2015 WL 2473451, 2015 U.S. LEXIS 4250 (June 26, 2015).  By fitting coincidence, the opinion was issued on the second anniversary of Windsor and the twelfth anniversary of Lawrence.

Kennedy was appointed to the Court by President Ronald Reagan in 1987.  Kennedy’s opinion was joined by the four justices appointed by Democratic presidents: Ruth Bader Ginsburg and Stephen Breyer (appointed by Bill Clinton) and Sonia Sotomayor and Elena Kagan (appointed by Barack Obama).  Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito all wrote dissenting opinions for themselves, and each of them also signed one or more of the other dissenting opinions.

The Court had granted petitions filed by the plaintiffs in cases emanating from the states of Ohio, Tennessee, Michigan and Kentucky.  In each of those states, federal district courts had ruled during 2014 either that state laws refusing to recognize same-sex marriages contracted in other states violated equal protection rights or that the refusals of the states to allow same-sex couples to marry violated due process and/or equal protection rights.  Those rulings were consolidated for appeal before the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, which reversed the trial courts in an opinion by Circuit Judge Jeffrey Sutton.  Sutton held that the U.S. Supreme Court’s ruling in 1972 that a challenge to the Minnesota ban on same-sex marriage did not present a “substantial federal question” remained binding as precedent on lower federal courts, but went on to reject the plaintiffs’ constitutional arguments, opining that the question whether same-sex couples could marry or have their marriages recognized was one to be resolved through the democratic process, not through litigation.  In granting the plaintiffs’ petition to review that ruling, the Court ordered argument on two questions:  whether same-sex couples have a right to marry, and whether states are obligated to recognize same-sex marriages.  A majority of the Court has now answered both of those questions in the affirmative.

This outcome was widely predicted because of the Court’s behavior since October 2014, when it declined to review pro-marriage equality decisions by the 4th, 7th and 10th Circuits, thus lifting stays and allowing marriage equality rulings to go into effect in Virginia, Indiana, Wisconsin, Oklahoma and Utah, and eventually in all the other states in those circuits.  When the 9th Circuit ruled for marriage equality, the Supreme Court rebuffed every request by state officials to delay marriage equality rulings going into effect in that circuit, and subsequently refused to stay marriage equality rulings from Florida and Alabama, even though the 11th Circuit had not yet ruled on the states’ appeals.  The denial of the Alabama stay, weeks after the Court had granted review of the 6th  Circuit’s decision, decisively confirmed that there was a majority for marriage equality on the Supreme Court, to the consternation of Justice Thomas expressed in his dissent from the denial of Alabama’s staff petition.

The outcome being highly predictable, the main questions arousing speculation were which constitutional theories the Court would use to strike down the bans, and whether an additional member of the Court — most likely Chief Justice Roberts — would join the majority.  Roberts stayed put with his fellow conservative brethren.  Kennedy’s opinion took a route that could have been predicted based on his opinions in Windsor and Lawrence.  Kennedy’s preferred approach in gay rights cases (leaving aside his first such opinion, in Romer v. Evans, which is really sui generis) is to rely heavily on his broad conception of liberty protected by the Due Process Clause.

Kennedy began with a quick review of the situations of some of the plaintiffs, showing the deprivations they faced by not being allowed to marry or have their marriages recognized, and then presented a historical overview of the changing nature of marriage.  He wrote that “changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations, often through perspectives that begin in pleas or protests and then are considered in the political sphere and the judicial process.  This dynamic can be seen in the Nation’s experiences with the rights of gays and lesbians.”  After reviewing the growing recognition of gay rights by the courts, and referring to an amicus brief filed by the American Psychological Association, he wrote, “Only in more recent years have psychiatrists and others recognized that sexual orientation is both a normal expression of human sexuality and immutable.”  This could be a key statement for a holding that sexual orientation is a “suspect classification” for equal protection purposes, but Kennedy never followed up along that line.

Instead, he turned to a due process analysis, and premised his conclusion on “four principles and traditions” which he said “demonstrate that the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples.”  The first “is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy.”  The second is “that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.”  The third is “that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education.”  Finally, he wrote, “This Court’s cases and the Nation’s traditions make clear that marriage is a keystone of our social order.”

As to each of these four principles, Kennedy penned eloquent explanations that play into the themes he previously developed in his opinions in Windsor and Lawrence.  For example, he wrote, “The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality.  This is true for all persons, whatever their sexual orientation.”  Speaking about marriage’s “support” for the “two-person union,” he wrote, “Marriage responds to the universal fear that a lonely person might call out only to find no one there.  It offers the hope of companionship and understanding and assurance that while both still live there will be someone to care for the other.”  After observing that “hundreds of thousands of children are presently being raised” by same-sex couples, he wrote: “Without the recognition, stability, and predictability marriage offers, their children suffer the stigma of knowing their families are somehow lesser.  They also suffer the significant material costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life.  The marriage laws at issue here thus harm and humiliate the children of same-sex couples.”

In explaining why the right to marriage is a fundamental right, Kennedy observed that “States have contributed to the fundamental character of the marriage right by placing that institution at the center of so many facets of the legal and social order.  There is no difference between same- and opposite-sex couples with respect to this principle.”  As he had observed in 2003 when he wrote for the Court striking down the Texas sodomy law, he reiterated in this case.  “The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest.  With that knowledge must come the recognition that laws excluding same-sex couples from the marriage right impose stigma and injury of the kind prohibited by our basic charter.”   Several times in the course of this part of his opinion, Kennedy referred to the “dignity” of same-sex couples being denied or disparaged by denying them the right to marry.

Turning to the Equal Protection Clause as an alternative source of the marriage right, Kennedy avoided any explicit pronouncement about whether sexual orientation discrimination claims should be subject to heightened scrutiny.  Actually, there are two different strands of equal protection theory: the classification strand and the rights strand.  Under the former, the Court asks whether the challenged law creates a classification that is “suspect” and thus subject to heightened or strict scrutiny.  Under the latter, the Court asks whether the challenged law discriminates concerning a fundamental right, and thus will be struck down unless the government proves a compelling justification.  Kennedy focused on the second strand.

Referring back to the Court’s earlier marriage cases, he wrote, “The equal protection analysis depended in central part on the Court’s holding that the law burdened a right of ‘fundamental importance.’ It was the essential nature of the marriage right, discussed at length in Zablocki v. Redhail, that made apparent the law’s incompatibility with requirements of equality.”  He emphasized the interconnectedness of the liberty/due process and equal protection theories, referring to his 2003 opinion in the Texas sodomy case, Lawrence v. Texas.  “Lawrence therefore drew upon principles of liberty and equality to define and protect the rights of gays and lesbians, holding the State ‘cannot demean their existence or control their destiny by making their private sexual conduct a crime.’  This dynamic also applies to same-sex marriage.  It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality.  Here the marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right.  Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm.  The imposition of this disability on gays and lesbians serves to disrespect and subordinate them.  And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry.”

Thus, in the ongoing dispute over whether the plaintiffs were claiming a new constitutional right of “same-sex marriage” or access to an existing fundamental right to marry, the Court in this case adopts the broader view.

Kennedy rejected the states’ argument that this decision was being made without sufficient “democratic discourse,” pointing out that same-sex marriage has been a topic of debate for decades, and asserting that “there has been far more deliberation than this argument acknowledges,” referencing referenda, legislative debates, “countless studies, papers, books, and popular and scholarly writings.”  Indeed, he pointed out, “more than 100 amici” had filed briefs with the Court presenting a wide range of perspectives on all sides of the issues.  And, he pointed out, “the Constitution contemplates that democracy is the appropriate process for change, so long as that process does not abridge fundamental rights.”  Having found that the marriage bans abridge fundamental rights, he found that judicial action was justified.  “The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right.”

Kennedy also rejected the argument that the Court should refrain from this ruling because of possible adverse impact on traditional marriages, finding that the argument “rests on a counterintuitive view of opposite-sex couples’ decisionmaking processes regarding marriage and parenthood.  Decisions about whether to marry and raise children are based on many personal, romantic, and practical considerations; and it is unrealistic to conclude that an opposite-sex couple would choose not to marry simply because same-sex couples may do so.”

The Court devoted just one paragraph to the potential clash over religious liberty, asserting that the 1st Amendment “ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.”  However, Kennedy shied away from opining about how the balance of rights might be struck in particular cases of the type that have arisen in recent years involving recalcitrant wedding photographers, florists, bakers and the like.

Kennedy briefly addressed the second question certified by the Court for argument, pointing out that all parties had acknowledged that if the Court found a right for same-sex couples to marry, the right to have those marriages recognized by the states would follow as of course.  “It follows that the Court also must hold — and it now does hold — that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.”

Kennedy concluded with a paragraph integrating the main points of his analysis in eloquent fashion:  “No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”    Thus, at the end, Kennedy recurred to the same principle he had invoked two years ago in striking down Section 3 of the Defense of Marriage Act: equal dignity.

Chief Justice Roberts penned a “who decides” dissent, along the lines previously articulated by Judge Sutton in the 6th Circuit opinion.  “The fundamental right to marry does not include a right to make a State change its definition of marriage,” he wrote, insisting that defining marriage was the state’s prerogative as matter of democratic process.”  He found “the majority’s approach” to be “deeply disheartening.”  His dissent ended up being slightly longer than Kennedy’s opinion for the Court, embracing simplistic notions of the history of marriage that were directly contradicted by the detailed amicus briefs submitted on behalf of the plaintiffs.  For example, he referred to a “universal definition” of marriage as the “union of a man and a woman,” thus ignoring the numerous cultures in which plural marriage has long been accepted.  Rejecting Kennedy’s very empathetic view of the plaintiffs’ claims, Roberts asserted, “There is, after all, no ‘Companionship and Understanding’ or “Nobility and Dignity” Clause in the Constitution.”  He raised the question whether the Court’s opinion would reopen the question of plural marriage, which is being litigated by fundamentalist Mormons, and insisted that Kennedy’s argument sounded more in moral philosophy than in law.

In conclusion, he wrote: “If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.”  Justices Scalia and Thomas joined his dissent.

Scalia, the self-proclaimed originalist, was in fine fulminating form, although perhaps less colorfully than in his dissent a day earlier in the case upholding federal tax credits under the Affordable Care Act.  He was quick to observe that the generation that wrote and adopted the 14th Amendment would not have seen it as creating a right for same-sex couples to marry, and under his jurisprudence that should end the matter.  But, as he had done in the Windsor and Lawrence cases, he sharply criticized the Court for short-circuiting political debate.  Noting the “unrepresentative” nature of the Court, he questioned the legitimacy of it making such a policy decision.  “This is a naked judicial claim to legislative – indeed, super-legislative – power; a claim fundamentally at odds with our system of government,” he exclaimed.  “They have discovered in the Fourteenth Amendment a ‘fundamental rights’ overlooked by every person alive at the time of ratification, and almost everyone else in the time since.”   He also criticized the opinion as being “couched in a style that is as pretentious as its content is egotistic.”  As he has frequently done in past dissents, he decried Justice Kennedy’s conception of liberty, concluding, “The stuff contained in today’s opinion has to diminish this Court’s reputation for clear thinking and sober analysis.”  Actually, many past decisions of the Court emanating from its conservative voices have already done that many times over.  One need only cite Bush v. Gore and Citizen’s United. . .   Thomas joined Scalia’s dissent.

Justice Thomas has long contested the Court’s entire history of substantive due process doctrine, so this case was just one more example for him of illegitimate decision-making.  He argued that refusing to let same-sex couples marry does not deprive them of any liberty, insisting that the reference to “liberty” in the due process clause should be restricted to its “original” meaning of restrictions on mobility.   Thus, the state restricts your liberty when it locks you up, but not when it refuses to let you marry.  He located the origins of this concept in Magna Carta, the 800-year old English document signed by King John in 1215 to settle disputes with the English nobility about royal prerogative, and then traced the concept through American law up to the time of adoption of the 14th Amendment.  “When read in light of the history of that formulation,” he wrote, “it is hard to see how the ‘liberty’ protected by the Clause could be interpreted to include anything other than freedom from physical restraint.”  Even accepting a broader meaning, he held that it should be restricted to “individual freedom from governmental action, not as a right to a particular governmental entitlement.”  He insisted that “receiving governmental recognition and benefits has nothing to do with any understanding of ‘liberty’ that the Framers would have recognized.”  Scalia joined Thomas’s dissent.

Finally, Justice Alito’s dissent rechanneled his dissent from two years ago in U.S. v. Windsor, quoting from it extensively, arguing that there were various different views of marriage and that it was up to the people, through the democratic process, to decide which ones to embrace through law.  “Today’s decision usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage,” he insisted.  He particularly bemoaned the likelihood that this ruling would lead to the oppression of people who oppose same-sex marriage, predicting future disputes.  “Recalling the harsh treatment of gays and lesbians in the past, some may think that turnabout is fair play,” he wrote.  “But if that sentiment prevails, the National will experience bitter and lasting wounds.”  Both Scalia and Thomas signed his opinion.

All the dissents sounded like rearguard actions seeking to provoke public discontent with the Court’s opinion.  But in that sense they are well within the tradition — at least the recent tradition — of Supreme Court dissenting opinions from the very polarized Court.  A 5-4 ruling may be bitterly argued, but it is no less a precedential holding of the Court than a unanimous  ruling.  Although there had been rumblings in the weeks leading up to this day that some state officials might try to avoid complying with a pro-marriage equality decisions, the immediate response of governors in the four states involved with this case seemed to be prompt, if reluctant, compliance with the Court’s decision.

A long list of attorneys participated in representing the various plaintiffs in this case, culminating in the presentations by three oral advocates at the Supreme Court — two representing the plaintiffs and one representing the Solicitor General as amicus curiae.  In the end, all of the nation’s LGBT litigation groups played a part, as did numerous groups who submitted amicus briefs to the Court, many of which were cited in the opinions.   One group among all others will be particularly affected by this ruling.  Evan Wolfson announced months ago that upon the achievement of marriage equality nationwide, his organization — Freedom to Marry — will wind up its affairs and cease to exist.



N.Y. 4th Department Rejects Custody & Visitation Petition From Same-Sex Co-Parent

Posted on: June 23rd, 2015 by Art Leonard No Comments

Relying on a quarter-century old N.Y. Court of Appeals precedent under which a same-sex co-parent is considered a “legal stranger” to the child she was raising with her former partner, the Appellate Division, 4th Department has affirmed a decision by Chautauqua County Family Court Judge Judith S. Claire to dismiss a petition for custody and visitation filed by Brooke S. Barone.  The ruling in Barone v. Chapman, 2015 N.Y. App. Div. LEIS 5226, 2015 WL 3797129, was issued on June 19, 2015.

Brooke Barone and Elizabeth Chapman were same-sex partners and Barone had been co-parent of Chapman’s son.  They did not marry and Barone never adopted the child.  After they ceased to be partners Barone filed this petition seeking to have the Family Court determine custody and visitation issues.  The court appointed R. Thomas Rankin, an attorney in Jamestown, to represent the interest of the child.  Barone represented herself in the proceeding.

Chapman filed a motion to dismiss the petition, arguing that Barone did not have standing to seek custody or visitation because she had no legal relationship to the child.  Rankin opposed the motion on behalf of the child, arguing that the child’s best interests should be “paramount” over the legal formalities, and that “the standing accorded to parents should extend to those who have a recognized and operative parent-child relationship, regardless of their sexual orientation.”  He further argued that the court should use the doctrine of equitable estoppel, arguing that a legal parent who has fostered and encouraged her unmarried partner to form a relationship with her child should be forbidden by the court to deny the reality of that relationship by raising an objection to standing.  Judge Claire, finding herself bound by New York precedents, dismissed the petition.

The Appellate Division was equally dismissive of Rankin’s argument.  “Those contentions are without merit,” it wrote, quoting from an Appellate Division ruling that “the Court of Appeals has recently reiterated that a nonbiological, nonadoptive parent does not have standing to seek visitation when a biological parent who is fit opposes it, and that equitable estoppel does not apply in such situations even where the nonparent has enjoyed a close relationship with the child and exercised some matter of control over the child with the parent’s consent.”  The court noted earlier cases involving same-sex couples, in which the Court of Appeals had stated that “parentage under New York law derives from biology or adoption” and the Court of Appeals’ 1991 ruling, Alison D. v. Virginia M., had created a “bright-line test” under which a person who was neither the biological or adoptive parent of a child is considered a legal stranger without standing to seeking custody or visitation.  A few courts have departed from that more recently in the context of married same-sex couples, finding that when a married woman bears a child, her spouse should be presumed to be the child’s legal parent, but the Court of Appeals hasn’t yet ruled on such a case.

Concluded the Appellate Division panel, “We reiterate that, as the Court of Appeals unequivocally stated, ‘any change in the meaning of “parent” under our law should come by way of legislative enactment rather than judicial revamping of precedent.’  Finally, we note that petitioner ‘failed to sufficiently allege any extraordinary circumstances to establish her standing to seek custody’ as a nonbiological, nonadoptive parent.”  The Court of Appeals has recognized that such special circumstances might justify bending the rules, but in the Alison D. case and subsequent cases relying upon it, the court have found that same-sex couples raising a child together do not automatically qualify under the “extraordinary circumstances” rule.

After Alison D. was decided, the Court of Appeals in a late case construed the Adoption Law to allow same-sex partners to adopt child they were co-parenting without terminating the parental rights of the child’s legal parent, providing a clear path for same-sex partners to avoid this result.  However, in the absence of such an adoption, the courts have adhered to the “legal stranger” rule, and the legislature has yet to modify the statutes on parental standing to take account of non-traditional families in New York.

Supreme Court Argument Leaves Marriage Equality Proponents Cautiously Optimistic for June 2015 Victory

Posted on: April 28th, 2015 by Art Leonard No Comments

 My first take on today’s oral argument in the Supreme Court:

The United States Supreme Court heard oral arguments in Obergefell v. Hodges, No. 14-556, on April 28, considering the questions whether same-sex couples have a right to marry and to have their marriages recognized by states other than those in which they marry.  The case consolidated appeals from the plaintiffs in four states – Ohio, Tennessee, Michigan and Kentucky — whose district court victories were reversed by the U.S. Court of Appeals for the 6th Circuit in %DeBoer v Snyder%, 772 F.3d 388 (6th Cir. Nov. 6, 2014).  Most commentators agreed that it was possible that the Court would reverse the 6th Circuit on one or more grounds, but during the argument the Court appeared closely divided, and the “swing Justice,” Anthony M. Kennedy, Jr., did not give any clear signal from his questioning and comments about which way he was leaning, sometimes appearing skeptical about the plaintiffs’ claims, at other times supportive.

The Petitioners (plaintiffs in the trial courts) and Respondents (the states, which were defending their victory in the Court of Appeals), had complied with the Court’s request to designate one advocate from each side on each question, with the addition of Solicitor General Donald B. Verrilli, Jr., arguing in support of Petitioners on behalf of the Obama Administration.  Petitioners designated Mary Bonauto, Civil Rights Project Director at Gay & Lesbian Advocates & Defenders, the Boston-based public interest law firm, to argue the marriage question, and Douglas Hallward-Driemeier, head of the Supreme Court litigation practice at the law firm Ropes & Gray LLP, to argue the recognition question.  This was Bonauto’s first Supreme Court argument, but not her first appellate argument on marriage equality, as she had argued the Massachusetts marriage equality case in 2003 that led to the first legal same-sex marriages being performed in the United States.  The Respondents settled on former Michigan Solicitor General John Bursch to argue the marriage question, and Tennessee Associate Solicitor General Joseph Whalen to argue the recognition question.  Whalen was the only one among the advocates who personally participated in the argument before the 6th Circuit, successfully defending Tennessee’s ban on recognition of same-sex marriages.

Bonauto led off the argument and it quickly became clear that the four Democratic appointees to the Court – Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan – were likely votes in favor of same-sex couples having the same fundamental right to marry as different sex couples.  Chief Justice John Roberts quickly moved to dispel the speculations of some commentators that he was a potential vote for marriage equality, as he suggested that what the plaintiffs were seeking was not just “to join the institution, you’re seeking to change what the institution is.”  Roberts characterized “the opposite-sex relationship” as “the fundamental core of the institution” of marriage, and he signaled opposition to the idea that judges rather than legislatures or the voters in referenda should decide whether to change that definition.

As expected, Justice Antonin Scalia weighed in with arguments familiar to anybody who read the 6th Circuit opinion by Judge Jeffrey Sutton, one of his “originalist” acolytes.  Scalia asserted that the question before the Court was not “where there should be same-sex marriage,” but rather “who should decide the point,” and clearly signaled his view that it should be decided by the democratic process of voting and legislating, not by judges.  None of Justice Samuel Alito’s questions or comments suggested any real sympathy for the plaintiffs’ position either, and of course Justice Clarence Thomas was true to form in refraining from questioning or offering comments.

So, as had been speculated from the beginning, the outcome will likely fall to Justice Kennedy, and his opening sally was not calculated to reassure those who were counting on him to quickly embrace the trajectory of his prior opinions for the court in the DOMA and sodomy cases.  “This definition [of marriage] has been with us for millennia,” he pointed out.  “And it’s very difficult for the Court to say, oh, well, we know better.”  On the other hand, he noted that the amount of time between the Supreme Court’s decision striking down racial segregation in public schools and subsequent decision striking down laws against interracial marriages was “about the same” as the time between striking down sodomy laws and the present case on same-sex marriage.  “And so there’s time for the scholars and the commentators – and the bar and the public – to engage in it,” he pointed out.

Kennedy came closer to tipping his hand in the other direction when John Bursch stood up to argue on behalf of the states defending their marriage bans.  Kennedy pressed Bursch to explain how allowing same-sex couples to marry would harm “conventional marriage,” but he left it to the other justices, particularly Breyer and Kagan, to pursue the point as Bursch put forward the notion that the state has a particular interest in assuring bonds between children and their biological parents, with Kennedy only interjecting a question of two along the way, although he characterized as “just a wrong premise” the argument that “only opposite-sex couples can have a bonding with the child.”

Kennedy seemed particularly indignant when Bursch discounted the significance of the dignity that the state bestows on a couple by according them the right to marry.  Bursch had suggested that the state has no particular interest in this, being primarily concerned with children, not with the relationship between the adults.  This was not a good strategic move on his part, in light of Kennedy’s expressed concern in his DOMA opinion about the “dignity” states confer on married couples.  “I don’t understand this not dignity-bestowing,” Kennedy commented.  “I thought that was the whole purpose of marriage.  It bestows dignity on both man and woman in a traditional marriage.  It’s dignity bestowing, and these parties say they want to have that same enoblement.”  When Bursch insisted that “the State has no interesting in bestowing or taking away dignity from anyone, and certainly it’s not the State’s intent to take dignity away from same-sex couples or from anyone based on their sexual orientation,” Kennedy sharply responded, “Well, I think many states would be surprised, with reference to traditional marriages, they are not enhancing the dignity of both the parties.”

Solicitor General Donald Verrilli focused his argument entirely on equal protection, and he was pushed during the questioning on his failure to make the fundamental right to marry argument.  It became clear from the questioning from the conservative justices that they saw the right to marry argument as a non-starter because of – at least in their view – the difficulty of accepting a fundamental right to marry and then having to confront arguments on behalf of a right to plural marriages.  Alito posed a hypothetical about two men and two women seeking to marry as a foursome, which introduced a discordant note into the discussion, and Scalia also harped on this issue.

One absurd point arose when Scalia questioned Bonauto about whether a minister might be required to perform same-sex marriages against his or her religious belief.  Bonauto responded that the First Amendment would shield a minister from any such obligation, but Scalia insisted that if there was a constitutional right to marriage, that might be held to overcome the minister’s free exercise of religion defense.  Bonauto pointed out that no minister had been prosecuted for refusing to perform marriages in marriage equality states, and Justice Kagan jumped in with the example of rabbis who refuse to perform marriages between Jews and non-Jews.  While listening to this part of the argument, I was waiting for somebody to raise the example of Catholic priests who condition their willingness to perform marriages between Catholics and non-Catholics upon the commitment of the non-Catholic parent that the children be raised as Catholics, but nobody suggested that.  Of course, consistent with the Free Exercise Clause, no court would ever order a religious officiant to perform weddings that would violate their religious beliefs, so this was a silly line of questioning.

Bonauto closed with a rebuttal argument that was so precise and well-focused that she was not interrupted for any questions as she highlighted the basic inconsistencies in Bursch’s arguments.  One note of unexpected rama was introduced when a member of the audience stood after Bonauto had finished and burst into a diatribe about sin and abomination until escorted out by security officials.  Chief Justice Roberts seemed ready to delay the Solicitor General’s argument, but Verrilli signified he was ready to press forward.  Scalia made a cryptic remark that the outburst was “refreshing.”  Perhaps he meant to suggest that the Court seriously consider religious objections to same-sex marriage.

After a brief recess, the Court turned to the second question, whether states are required by the 14th Amendment to recognize same-sex marriages contracted in other states.  Douglas Hallward-Driemeier was quickly interrupted by Justice Alito.  “I am somewhat surprised by the arguments you made in your brief,” he said, “because they are largely a repetition of the arguments that we just heard with respect to Question 1.  I thought the point of Question 2 was whether there would be an obligation to recognize a same-sex marriage entered into in another State where that is lawful even if the State itself, constitutionally, does not recognize same-sex marriage.  I thought that’s the question in Question 2.  Am I wrong?”

This quickly clarified a mystery that had caused much speculation among legal commentators after the Court announced that it would review the 6th Circuit’s decision.  Why the second question, since it seemed obvious that if same-sex couples have a right to marry the right to recognition of out-of-state marriages would naturally follow?  This question was posed so that if the Court ruled against the plaintiffs on the right to marry, it could then confront the question whether a state that refuses to allow same-sex marriages – and is constitutionally free to do so – may nonetheless be obliged to recognize out-of-state same-sex marriages.  Justice Alito’s question thus framed the issue for the second hour of argument.

And Alito and Scalia energetically followed up with questions and hypotheticals about forcing states to recognize the validity of marriages that they wouldn’t allow to be formed within their own borders.  Even Kennedy joined in briefly, pointing out that if the Court determined that states do have a sufficient justification for refusing to issue marriage licenses to same-sex couples, might not the same justification suffice to allow them to refuse to recognize such marriages from out-of-state?  Justice Ginsburg did jump in to nail down the point that if the plaintiffs won the right to marry on Question 1, “then the argument is moot.”  Hallward-Driemeier agreed with her, as Joseph Whalen also conceded during his part of the argument.  Hallward-Driemeier emphasized the harms to same-sex couples who married and had children in other states and then might be moved by an employer – the starkest example was the military as an employer – to a state that didn’t recognize their marriage.  This seemed well-calculated to appeal to Justice Kennedy, since he had articulated a concern for the welfare of children of same-sex couples in his DOMA opinion.

As soon as Whalen got up to defend the recognition bans, Scalia appeared to surprise him by raising the Full Faith and Credit Clause, Article IV of the Constitution, which has barely been mentioned over the past two years of marriage recognition litigation.  In 1996, Congress adopted as part of the Defense of Marriage Act a provision stating that states were not required to accord full faith and credit to same-sex marriages from other states.  That provision has not been declared unconstitutional, and in the DOMA decision Justice Kennedy observed that it was not being challenged in that case.  Instead, lower federal courts have focused on the Equal Protection Clause and generally found that states had no rational basis for recognizing different-sex marriages from other states but refusing to recognize same-sex marriages.  Some scholars addressing this issue after passage of DOMA in 1996 observed that traditionally the Full Faith and Credit Clause had not been invoked in marriage recognition cases, since it was not really clear that the Clause even applied to marriages.

But Scalia pressed the point with Whalen.  Always the textualist, Scalia said, “I’m so glad to be able to quote a portion of the Constitution that actually seems to be relevant.  ‘Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State.’  Now, why doesn’t that apply?”  Whalen sought to draw a distinction between “judgments” of courts, which courts routinely honor, as opposed to “laws of each state.”  “And the reason in part that the Court’s decision have said that is that otherwise, each State would be able to essentially legislate for every other State,” he continued.  “Public acts?” asked Scalia in response.  “It would include the act of marrying people, I assume.”  Whalen responded, “My understanding of this Court’s decisions as the reference in the Constitution to public acts is that each State’s laws.”  “So there’s nothing in the Constitution that requires a State to acknowledge even those marriages in other States that are the same?” asked Scalia, receiving an affirmative response from Whalen.  “Really,” asked Scalia, sounding skeptical.  Justice Breyer was eventually drawn into the discussion, indicating he might have to head back to his chambers and start reading Full Faith and Credit cases, evoking laughter from the audience.  Other justices were soon drawn in to what became a rather esoteric conversation about the interpretation and application of the Full Faith and Credit clause, which one suspects was not fully anticipated by the advocates.  There even seemed to be some indication, if perhaps just fleeting, that Chief Justice Roberts might see an application of the Full Faith and Credit Clause here, which could feed speculation that even if the Court were to rule adversely on Question 1, there might be a majority including some of the more conservative justices in favor of marriage recognition.  But only fleeting. . .

When Whalen picked up on Bursch’s argument about the state’s interest in maintaining its definition of parenthood as “biologically-based” as a reason not to recognize the parental status of same-sex spouses towards their children, Justice Sotomayor jumped in, responding to his assertion that Tennessee had always rooted the meaning of parenthood in a biological relationship between parent and child.  “Oh, but you do that for adoptions,” she said.  “What’s the problem?  This is a really big deal?”  Whalen responded, “It is a big deal, Your Honor, because you are changing the way the State defines a parent.  And in the adoption context, you have to understand adoption and the traditional definition of marriage, they work in tandem.  They work together.  As Mr. Bursch described, the objective with regard to marriage is to link children with their biological parents.  When that breaks down, then there’s adoption.”  Sotomayor responded by asking whether a state can refuse to recognize a birth certificate issued by another state that identifies same-sex spouses as the parents of a child.  “Do you think the word ‘records’ in the Constitution includes birth certificates,” referring again back to the Full Faith and Credit Clause.  After Whelan’s affirmative response, Sotomayor continued, “So California without any reason, no suspicion of fraud, no anything, could it refuse to recognize another State’s birth certificate.  Records to me has to have a meaning.”

“Record has a meaning,” Whalen responded.  “It does, your Honor.  The reason that I’m hesitant is that I know that there is disagreement in the cases about exactly what the impact of that is between whether that just means we have to acknowledge the existence of the record for evidentiary purposes, or whether the effect of the record has to be acknowledged.”  “But if a birth certificate were to be a record,” asked Sotomayor, “don’t you think a marriage certificate – it’s an official act of a State.”  While Whalen acknowledged as much, he continued, “I think that the laws that allowed that marriage to occur, when they are different fundamentally with the laws of a State like Tennessee, preclude the application of that same principle from one State to the other.”

Hallward-Driemeier’s rebuttal, like Bonauto’s, was so tightly focused that none of the justices interrupted with questions.  He concentrated on demonstrating the real harms suffered by same-sex couples exemplified by two of the plaintiff couples who had relocated and been denied recognition of their marriages, in one case in the context of emergency medical care for one of their children.  This, of course, was well-calculated to invoke Justice Kennedy’s concern.  For those looking to read the Kennedy tea leaves, there was little to work on in the Question 2 argument, since he barely spoke at all.  Hallward-Driemeier ended with the stark evocation of Jim Obergefell’s struggle to be properly recorded as a surviving spouse on his husband’s death certificate.

Commentators and analysts are likely to pick over the transcript and audio recordings for the next few months trying to find hopeful signs about how the case will turn out, but they may be disappointed to find that the likely “swing” voter, Justice Kennedy, had much less to say than those justices whose positions are much more predictable pro and con.  The most hopeful sign for marriage equality proponents springs not from these arguments, but more from the prior actions of the Court, denying review of the 4th, 7th and 10th Circuit pro-marriage equality rulings last October 6, which allowed same-sex marriage to go into effect eventually in all the states in those circuits, and denying stay petitions from several 9th Circuit states as well as Florida and Alabama, in cases that had not yet been reviewed by the 11th Circuit Court of Appeals (which had also refused to stay the marriage equality rulings from those states).  These actions seemed to clearly indicate that a majority of the Court was on-board with marriage equality, since the stay denials contributed to facts on the ground spreading marriage equality to 37 states representing over 70% of the population, and making the prospect of an adverse ruling on Question 1 a daunting proposition liable to generate frenzied litigation over the status of thousands of marriages performed in those states.  When viewed from that perspective, it seemed highly likely that Justice Kennedy would overcome any qualms he might have about suddenly abandoning “millennia” of different-sex marriage traditions in favor of avoiding the dignitary, financial and other harms suffered by same-sex couples and their children denied the benefits of marriage.

American Symphony Orchestra Examines Obscure Works of Major Composers

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

Last night at Carnegie Hall, the American Symphony Orchestra presented “Opus Posthumous,” a concert devoted to works that were not first performed until after the deaths of their composers. These included an opera overture by Franz Schubert to an opera never published or performed in his lifetime, Anton Bruckner’s Symphony No. 00 (a study symphony he composed but did not consider suitable for performance), and Antonin Dvorak’s Symphony No. 1, which was composed for entry into a composition contest. Dvorak sent his only copy of the handwritten manuscript, which was never returned to him, and the work was long thought lost, only to show up years later in a bookstore where it was purchased by somebody who shared the composer’s surname but was not a relative. The piece was first performed long after the composer’s death, and then in an abridged version.

This was a very pleasant concert of 19th century romantic music, but none of the works is an imperishable masterpiece. Indeed, my opinion after the concert was that Dvorak was lucky the piece was not played when it was written, because it could have impeded his career.  The orchestration is amateurish in places, creating a heavy and clotted effect, and the development of the themes is unduly repetitious.  Some good ideas are just buried under clumsy orchestration, unfortunately. 

Dvorak and Bruckner were late bloomers as mature symphonists.  Dvorak wrote nine symphonies, but published only the last five, and until mid-20th century, most music lovers would say their favorite was Dvorak’s Symphony No. 5, the “New World Symphony.”  By the time I was learning about classical music in the 1960s, it was usually identified as Symphony No. 9 (old “No. 5”), as by then the earlier unpublished symphonies had been edited and published in a complete edition of Dvorak’s music.  But the first four symphonies are rarely performed, as he really didn’t hit his stride until “old No. 1,” which is now known as Symphony No. 6.  Old No. 2 became Symphony No. 7, Old No. 3 became Symphony No. 5, and Old No. 4 became Symphony No. 8.  This is all ancient history for the generation of classical music lovers following me.  With Bruckner, there is last night’s Symphony No. 00, then his first published Symphony, No. 1, then Symphony No. 0 which comes before Symphony No. 2.  Bruckner was very self-critical and withheld pieces from publication if they didn’t meet his high standards.  Bruckner’s situation is complicated by his tendency to revise, abetted by some of his younger supporters who thought his music would be more readily accepted if he would just shorten things!  So there are multiple versions of most of the published symphonies, including so many versions of Symphony No. 3 and Symphony No. 4 (two completely different versions of one of the movements are floating about) that one can easily lose count.

Last night’s Bruckner was a pleasant student work that shows few signs of the mature composer.  Indeed, it sounded much like the Schubert overture that came before it on the program.

There’s nothing seriously wrong with any of these pieces, but none of them stand to become part of the standard orchestral repertory, as they are put in the shade by other works of the composers. The ASO played them all very well under Leon Botstein’s direction, as members of the audience had a rare opportunity to hear works by major composers that they are not likely to get to hear in live performance ever again! This is central to the ASO’s mission under Botstein’s leadership.  To cast light in dark corners….

Federal Court Orders Stay of New Family & Medical Leave Act Regulation

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

U.S. District Judge Reed O’Connor, sitting in the U.S. District Court for the Northern District of Texas in Wichita Falls, issued an order on March 26 requiring the U.S. Department of Labor to stay the implementation of a new regulation that changes the definition of “spouse” under the federal Family and Medical Leave Act to include same-sex couple, wherever they reside, who were married in a jurisdiction that allows same-sex marriages. State of Texas v. United States of America, 2015 U.S. Dist. LEXIS 38264. Judge O’Connor’s order was part of a preliminary injunction awarded to the states of Texas, Arkansas, Louisiana and Nebraska, who joined together as co-plaintiffs in a case originally filed by Texas Attorney General Ken Paxton.

It was unclear from the court’s order whether the regulation was stayed in all of its applications, or just as applied to the state government acting as employers. It was also unclear whether it would apply just to the four co-plaintiff states, or to all states that do not presently recognize same-sex marriages.

The Family and Medical Leave Act, enacted during the Clinton Administration in 1993, requires employers with 50 or more employees to make unpaid leave available for certain purposes to full-time employees after they have completed a year of service. The FMLA also applies to state governments acting as employers.

Family leave could include time off to take care of a spouse or child with health problems. The statute defined “spouse” as “a husband or wife, as the case may be.” Regulations proposed by the Labor Department in 1993 provided that “spouse” means “a husband or wife as defined or recognized under state law for purposes of marriage in states where it is recognized.” In 1995, the Department published a “final rule” making clear that the law of the state where an employee resides would control for purposes of determining spousal status.

After the Supreme Court struck down Section 3 of the Defense of Marriage Act in 2013, the federal government came under the constitutional obligation to recognize legally-married same-sex couples. However, many states withhold such recognition, and the existing FMLA regulation would thus withhold the federal benefit entitlement from married same-sex couples living in states that did not recognize their marriages.

The Labor Department proposed to solve this problem by issuing a new regulation, changing the definition of “spouse” to include all legally-married same-sex couples, regardless where they live. The proposed regulation was published in the Federal Register, comments were received and studied, and a final rule was published in the Federal Register, to go into effect on March 27.

Texas Attorney General Paxton’s lawsuit claimed that the Labor Department could not change the definition of spouse for state government employers. For one thing, he argued, Section 2 of the Defense of Marriage Act, which the Supreme Court did not address in its DOMA decision, specifically provides that states are not required to recognize same-sex marriages performed in other states. For another, he argued, the Supreme Court’s ruling acknowledged that states are entitled to decide who can marry and whose marriages will be recognized within their borders. According to this reading of the case, U.S. v. Windsor, Section 3 of DOMA was unconstitutional because Congress does not have authority to withhold recognition for federal purposes of marriages that states allow and recognize. This is the view, argued by Chief Justice John Roberts in his concurring opinion, that Windsor is essentially a “federalism” case. It’s a view that Justice Anthony Kennedy specifically disclaimed in his opinion for the Court, however, and the question of how to characterize that decision is a topic of lively debate among legal scholars and lower court judges.

Paxton argued that the Labor Department can’t order Texas through a regulation to recognize marriages contrary to the Texas Constitution and statutes, especially when that regulation conflicts with Texas’s right, under Section 2 of DOMA, to refuse to recognize the marriages.

Although there is a respectable body of scholarly opinion that Section 2 of DOMA is unconstitutional, and many federal courts, including four circuit courts of appeals, have ruled that states are required to recognize legally contracted same-sex marriages, the Supreme Court will not speak on the merits of these issues until it rules in Obergefell v. Hodges, most likely in June after the April 28 oral argument in Washington.

Until then, Judge O’Connor pointed out, the district court is bound by existing precedents in the 5th Circuit. Although a panel of the 5th Circuit heard arguments in several marriage equality appeals early in January, it has yet to issue a decision. Since prior 5th Circuit precedents mandate that trial judges in the circuit use the most deferential standard of judicial review when considering laws that discriminate because of sexual orientation, and Section 2 of DOMA is still in effect, Judge O’Connor concluded that a state government employer cannot be compelled by a federal regulation to recognize same-sex marriages performed in other states.

This is only a preliminary injunction, and Judge O’Connor cautioned that upon a full consideration of the merits there might a different conclusion, especially if that takes place after either the 5th Circuit or the Supreme Court rules on pending marriage equality cases. So this stay may turn out to be a temporary road-bump on the path to equal treatment for married same-sex couples living in states that don’t recognize their marriages.

Although Judge O’Connor’s legal analysis concluded that the Labor Department could not by regulation order states to recognize same-sex marriages, his stay was phrased in more general terms: “The Department of Labor must stay the application of the Final Rule, pending a full determination of this matter on the merits.” This might just mean that for now the rule does not apply to government workplaces in Texas and the other plaintiff states, but can go into effect for other workplaces. That’s what it should mean to be consistent with the court’s reasoning. The test will come when a private sector employee in Texas requests FMLA leave to care for a same-sex spouse, is turned down, and seeks vindication in the courts. But the entire problem may disappear when the Supreme Court rules in June.

New Jersey Supreme Court Ruling Imperils Ravi Conviction in Bias Crime Case

Posted on: March 18th, 2015 by Art Leonard No Comments

A unanimous ruling by New Jersey’s Supreme Court in State v. Pomianek, 2015 N.J. LEXIS 275, 2015 WL 1182529 (March 17, 2015), striking down part of the state’s Bias Intimidation Law, may imperil the conviction of Dharun Ravi in the suicide of Tyler Clementi , the gay Rutgers University freshman who had been Ravi’s dormitory roommate.

The court’s ruling came in the case of David Pomianek, Jr., a white man who was convicted by a superior court jury of bias-harassment of an African-American co-worker by locking him in a cage at work for a brief period of time in what Pomianek considered to be a “harmless caper,” according to the opinion by Justice Barry Albin.

Under N.J.S.A. 2C:16-1(a)(3), a person could be convicted even though he did not intend to intimidate the victim or even have knowledge that the victim might be intimated by his conduct, so long as the victim felt intimidated and believed that he was being harassed because of a forbidden ground under the statute.  In this case it was race.  In the Ravi case, it was sexual orientation which, together with gender identity, are also forbidden grounds for harassment under the statute.

The jury in Pomianek’s case found a lack of intent or knowledge on his part on the bias charges, but convicted based on the victim’s perceptions of being harassed because of his race, as well as some other related charges.  Pomianek’s conviction under this provision was reversed by the New Jersey Appellate Division, which concluded that a conviction “based on the victim’s perception” and not on the “defendant’s biased intent” would violate the 1st Amendment.  The Appellate Division then “read into” the statute an intent requirement and sent the case back to the superior court for a new trial.

The state appealed, and the Supreme Court focused on the Due Process Clause of the 14th Amendment rather than the 1st Amendment.  “In focusing on the victim’s perception and not the defendant’s intent,” wrote Justice Albin, “the statute does not give a defendant sufficient guidance or notice on how to conform to the law.  That is so because a defendant may be convicted of a bias crime even though a jury may conclude that the defendant had no intent to commit such a crime.”   Since a defendant would not necessarily know that a particular person would feel intimidated by particular conduct, they would not be on notice that their conduct might be illegal.

Disagreeing with the Appellate Division, however, Albin found that courts cannot “rewrite” a statute to supply a missing intent requirement.  “That level of judicial tinkering with legislation exceeds the bounds of our authority,” he wrote.  Since the court had resolved the case on 14th Amendment grounds, it refrained from addressing the Appellate Division’s 1st Amendment holding.  The court reversed Pomianek’s conviction under the bias law.  Since the jury found no intent, there was no basis to uphold it, or to require a new trial.

According to the court’s opinion, the provision basing criminal liability entirely on the victim’s perceptions made the New Jersey statute “unique,” as no other hate crime law in the country imposes liability in such circumstances.  The ruling leaves intact the other two operative provisions of the law, criminalizing intentional or knowing bias intimidation.  The requirement to show the requisite intent has proven a major stumbling block in hate crime prosecutions around the country, and has deterred prosecutors in some cases from bringing hate crime charges in cases that appear, at least circumstantially, to involve defendant bias, where there was not strong evidence of discriminatory intent.

The Dharum Ravi trial became a rallying point for people concerned about bullying of gay students.  Ravi was charged with using a webcam to spy on Clementi having sex with another man in their dorm room, and then sharing the images with others online, leading Clementi, a sensitive young man whose coming out to his parents had not been a total success, to become despondent and ultimately suicidal.  Clementi  jumped off the George Washington Bridge just days after learning that the webcam images were spreading on Twitter.  Rutgers University undertook major reforms in response to the incident, and Clementi’s family established a foundation to promote understanding for young gays.

Charges were brought against Ravi under several provisions, including the one struck down in the Pomianek case, and the judge allowed evidence about Clementi’s reactions to learning about the webcam spying to be presented to the jury.  The New York Times reported on March 18 that jurors in the Ravi case “said after the conviction that some of the most convincing evidence of Mr. Ravi’s guilt came from Mr. Clementi’s own complaints and online posts after he learned that he had been spied on.”

The judge was sufficiently concerned about flaws in this provision that he did not enhance Ravi’s sentence to reflect conviction on this ground, according to the account in the Times.  Ravi received a short prison sentence – 30 days – and was released after only 20 days for good behavior in prison.  The state appealed the judge’s failure to enhance the penalty due to the bias harassment conviction.  Ravi’s lawyer raised constitutional concerns in responding to the state’s appeal. The case is still pending in the New Jersey court system.

The Supreme Court’s March 17 ruling makes it likely that some or all of the Ravi conviction will also be reversed.

Supreme Court Sets Hearing Date for Marriage Equality Appeals

Posted on: March 6th, 2015 by Art Leonard No Comments

On March 5 the Supreme Court posted on its website the last argument calendar for the year, listing for Tuesday, April 28, the appeals in Obergefell v. Hodges, Tanco v. Haslam, DeBoer v. Snyder and Bourke v. Beshear, the four marriage equality appeals from the states of the 6th Circuit.  The arguments will begin at 10 am.  The Court does not broadcast its arguments live, but in a press release also issued March 5 the Court announced that an audio recording of the argument, together with a written transcript, will be posted on the Court’s website by 2 pm on the date of the argument.

This last bit is an unusual move, inasmuch as the Court usually delays posting audio recordings until Friday on argument weeks, although transcripts are usually posted a few hours after a hearing concludes.  Indeed, earlier this week the Court had refused a request by news organizations for same-day posting of the audio recording in the Obamacare case, argued on Wednesday, March 4.  Delaying the posting of audio recordings sharply reduces their usefulness to the media, since they want to post their stories about the argument on the same day it is held.  Holding up posting the audio until Friday means that they can’t link audio clips to their on-line articles, or play short clips on TV, radio and webcast news programs.  So the decision to do it for the marriage cases signifies some understanding by the Court about the eagerness for transparency by the millions of gay people around the country who are paying attention to these cases.