I glance at many court opinions almost every day in my ongoing quest of materials for my newsletter, Lesbian/Gay Law Notes, so I have a fairly good idea of what passes for constitutional analysis in federal district court opinions, but every now and then something just jumps out at me as reflecting sheer ignorance. One example of this is Fletcher v. Little, a November 20 decision by U.S. District Judge Sue L. Robinson (D. Delaware), who was appointed by George H.W. Bush in 1991. (2013 U.S. Dist. LEXIS 164831) The context is pro se prisoner litigation. Timothy Fletcher is a gay inmate in a Delaware prison who claims to have suffered harassment from fellow prisoners and unequal treatment from prison personnel, including failing to change his housing situation and punishing him for fighting with his cellmate when he claims he was fighting to defend himself against being raped. Judge Fletcher’s ruling granting the sole remaining defendant summary judgment on Fletcher’s Section 1983 equal protection claim may be correct, given her summary of the factual record. But her discussion of the equal protection analysis strikes me as woeful.
Here it is: “To state a claim under the Equal Protection Clause, plaintiff must allege that he is a member of a protected class and he was treated differently from similarly situated inmates. See City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (noting that the Equal Protection Clause ‘is essentially a direction that all persons similarly situated should be treated alike.’) If the litigant does not claim membership in a protected class, he must allege arbitrary and intentional discrimination in order to state an equal protection claim. See Village of Willowbrook v. Olech, 528 U.S. 562 (2000). Plaintiff must state facts showing that: ‘(1) the defendant treated him differently from others similarly situated, (2) the defendant did so intentionally, and (3) there was no rational basis for the difference in treatment.’ Hill v. Borough of Kutztown, 455 F.3d 225, 239 (3rd Cir. 2006). The Supreme Court has not recognized sexual orientation as a suspect class, and federal courts across the country have declined to identify homosexuals as a protected class. See Price-Cornelison v. Brooks, 524 F.3d 1103, 1113 n.9 (10th Cir. 2008) (collecting cases). Notably, plaintiff did not plead, and there is no evidence of record, that plaintiff was treated differently from similarly situated individuals and, even if he had, that there was no rational basis for any difference in treatment. Finally, no matter how offensive and derogatory the language that defendant allegedly used with respect to plaintiff’s sexual orientation, that alone does not give rise to a constitutional claim. See Aleem-X v. Westcott, 347 F. App’x 731 (3rd Cir. 2009) (unpublished) (verbal abuse of a prisoner, even of the lewd variety, is not actionable under 42 U.S.C. sec. 1983). Plaintiff fails to plead a facially plausible equal protection claim. Therefore, the court will dismiss the claim as frivolous pursuant to 28 U.S.C. sec. 1915(e)(2)(b)(ii) and Sec. 1915A(b)(1).”
In other words, Judge Robinson joins in the sloppy terminology and analysis in the equal protection context that speaks of “protected class,” a concept that is in fact alien to the equal protection theory, and says that “the Supreme Court has not recognized sexual orientation as a suspect class.” This is weird. How can a characteristic — sexual orientation — be a “class”? What the equal protection theory requires is that the government have some rational justification if it is treating groups of people defined by a particular characteristic unequally with people who do not share that characteristic. For example, “women” are not a “protected class,” and neither are “men.” But the equal protection clause has been construed by the Supreme Court to require a substantial legitimate justification when the government systematically treats women differently from men, because the Court regards discrimination on the basis of sex — i.e., the characteristic of a person’s sex — as grounds for suspecting that the treatment is attributable to stereotype or bias. We don’t have “suspect classes.” We have “suspect classifications.” The question is not whether “homosexuals” are a suspect class. It is whether sexual orientation is a suspect classification. That is, must the government have a legitimate justification for treating gay people differently from non-gay people in a particular situation? When a gay prison inmate expresses fear of being subjected to sexual assault by a cellmate, and a prison official treats that fear differently than they would treat the fear of a non-gay prison inmate of being sexually assaulted by their cellmate, then there is discrimination because of sexual orientation, and the government needs to explain why it takes the one complaint seriously and the other not.
Judge Robinson cites a 2008 decision by the 10th Circuit as her authority for the proposition that “federal courts across the country have declined to identify homosexuals as a protected class.” This reference is out-of-date and once again uses an improper term. It can be read to suggest that as of 2008, federal courts around the country generally agree that the equal protection clause provides no protection for gay people against discriminatory adverse treatment by government officials. This statement was certainly wrong as of 2008, and is most definitely wrong today. In 1996, the Supreme Court ruled in Romer v. Evans that a state policy adversely affecting gay people violates the 14th amendment if there is not some legitimate, non-discriminatory justification for it. This year, in U.S. v. Windsor, the court adopted the same approach in striking down Section 3 of the Defense of Marriage Act, finding that Congress’s decision to deny all federal recognition to same-sex marriages lawfully formed under state law was a deprivation of the “equal liberty” guaranteed by the 5th Amendment’s due process clause (which incorporates an equal protection requirement). So, whether it is a state or the federal government that is acting, the constitution protects gay people from unjustifiable government discrimination. For a more detailed analysis, one should consult the decisions by the 1st and 2nd Circuits in the DOMA cases that led up to the Supreme Court’s Windsor ruling. The 1st Circuit took an approach of using a more searching form of equal protection review for sexual orientation discrimination claims, following the approach suggested by Supreme Court Justice Sandra Day O’Connor in her concurring opinion in Lawrence v. Texas (2003). The 2nd Circuit, by contrast, in agreement with the Justice Department, found that “sexual orientation” discrimination calls for “heightened scrutiny,” the standard used to evaluate sex discrimination claims. In both circuits, the courts recognized that there is a sound historical basis for suspecting that when the government treats gay people adversely, it is acting out of bias or moral disapproval of homosexuality rather than from some legitimate, non-discriminatory policy justification. Judge Robinson’s application of the traditionally highly-deferential rational basis test is not consistent with these recent court of appeals decisions, much less the Supreme Court’s decision in U.S. v. Windsor.
It is clear that the 10th Circuit’s Price-Cornelison opinion from 2008 is not an accurate statement of the law any longer, if it ever was. I would argue that it failed to reflect accurately what the Supreme Court had done in Romer v. Evans, and so was already more than a decade out of date when it was written. Federal decisions subsequent to Romer in several circuits drive home the point, including the 9th Circuit’s rulings in the military context, and several decisions involving gay student harassment cases, including the 7th Circuit’s Nabozny decision issued shortly after Romer.
And federal district judges who have a “gay equal protection macro” in their office computers that inserts the standard paragraph based on outdated or incompetently stated case law should delete it. I suspect this may be what is going on. I doubt anybody doing competent research in current federal cases would produce the paragraph that appeared in Judge Robinson’s opinion, so I suspect it may be a recycling of outdated text, perhaps harvested from older circuit cases such as Price-Cornelison, thus perpetuating outdated statements about the law. If Judge Robinson’s paragraphs quoted above were newly composed by a law clerk assigned to this case, I would suggest that the judge assign her clerk to read the recent equal protection rulings that I’ve mentioned to avoid producing an inaccurate work product in the future.