The Supreme Court begins its October 2018 Term, which runs through June 2019, on October 1. During the week of September 24, the Court holds its “long conference,” during which the Justices consider the long list of petitions for review filed with the Court since last spring, and assembles its docket of cases for argument after those granted late last term are heard. While there are several petitions involving LGBT-related issues pending before the Court, it is unlikely that there will be any announcement about these cases until late October or November at the earliest.
Three of the pending petitions raise one of the most hotly contested LGBT issues being litigated in the lower federal courts: Whether Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination because of an individual’s sex, can be interpreted to extend to claims of discrimination because of sexual orientation or gender identity. One of the three cases also raises the question whether an employer with religious objections gender transition has a defense under the Religious Freedom Restoration Act. Another petition presents the question whether a judge who has religious objections to conducting same-sex marriages has a 1st Amendment right to refuse to do so.
Although many state civil rights laws ban such discrimination, a majority of states do not, so the question whether the federal law applies is particularly significant in the Southeast and Midwest, where state courts are generally unavailable to redress such discrimination.
With President Donald J. Trump’s nomination of Brett Kavanaugh to fill the seat vacated by Justice Anthony M. Kennedy, Jr.’s, retirement, which was effective on July 31, petitions pending at the Supreme Court took on heightened significance while the Senate confirmation process was taking place. The Senate Republican leadership had hoped to speed the process so that Trump’s appointee would be seated on the Court by the time the term began on October 1, but accusations of long-ago sexual misconduct by Kavanaugh have caused the Judiciary Committee’s vote to be delayed. Meanwhile, the eight-member Court had to confront the question during their long conference of whether to grant review on cases as to which the justices were likely to be evenly divided, when they were unsure when the ninth seat would be filled and who would fill it. As of the end of September, they had already scheduled oral arguments on cases granted last spring running through the first week of November.
In Bostock v. Clayton County Board of Commissioners, a three-judge panel of the Atlanta-based 11th Circuit Court of Appeals affirmed a decision by the U.S. District Court for the Northern District of Georgia to dismiss Gerald Lynn Bostock’s Title VII claim alleging employment discrimination because of his sexual orientation. The panel held that it was bound by prior circuit precedent, a 1979 ruling by the old 5th Circuit in Blum v. Gulf Oil Corporation, which was recently reaffirmed by a panel of the 11th Circuit in Evans v. Georgia Regional Hospital, which was denied by review by the Supreme Court last December.
Three-judge panels are required to follow circuit precedents, which can be overruled only by an en banc court (the full circuit bench) or the Supreme Court. The 11th Circuit Bostock panel also noted that Mr. Bostock had “abandoned any challenge” to the district court’s dismissal of his alternative claim of gender stereotyping sex discrimination, which is significant because an 11th Circuit panel had ruled in 2011 in Glenn v. Brumby that a transgender plaintiff could bring a sex discrimination claim under a gender stereotyping theory. The panel relied on a Supreme Court ruling from 1989, Price Waterhouse v Hopkins, which held that requiring employees to conform to the employer’s stereotyped view of how men and women should act was evidence of discrimination because of sex. The court noted that in Evans, a majority of the 11th Circuit panel had rejected extending the same theory to uphold a sexual orientation claim, and this, of course, is also now binding 11th Circuit precedent.
Mr. Bostock sought en banc reconsideration of the panel decision by the full 11-member bench of the 11th Circuit, but he also filed a petition with the Supreme Court on May 25. On July 18, the 11th Circuit denied the petition for rehearing en banc, voting 9-2. Circuit Judge Robin Rosenbaum, who was the dissenting member of the three-judge Evans panel, released a dissenting opinion, joined by Circuit Judge Jill Pryor.
Although the Evans and Bostock panel decisions may have been foreordained by circuit precedent, recent developments persuaded the dissenters that the issue raised in this case “is indisputably en-banc-worthy. Indeed,” continued Rosenbaum, “within the last fifteen months, two of our sister Circuits have found the issue of such extraordinary importance that they have each addressed it en banc. See Zarda v. Altitude Express, Inc.; Hively v. Ivy Tech Community College of Indiana. No wonder. In 2011, about 8 million Americans identified as lesbian, gay or bisexual,” citing a demographic study published by the Williams Institute at UCLA Law School. “Of those who so identify, roughly 25% report experiencing workplace discrimination because their sexual preferences do not match their employers’ expectations. That’s a whole lot of people potentially affected by this issue.”
Judge Rosenbaum strongly argued that the 11th Circuit’s implicit decision to “cling” to a “39-year-old precedent” that predates Price Waterhouse by a decade is ignoring “the Supreme Court precedent that governs the issue and requires us to reach the opposite conclusion,” as she had argued in her Evans dissent. “Worse still,” she wrote, “Blum’s ‘analysis’ of the issue is as conclusory as it gets, consisting of a single sentence that, as relevant to Title VII, states in its entirety, ‘Discharge for homosexuality is not prohibited by Title VII.’ And if that’s not bad enough, to support this proposition, Blum relies solely on Smith v. Liberty Mutual Insurance Co. (5th Cir. 1978) – a case that itself has been necessarily abrogated not only by Price Waterhouse but also by our own precedent in the form of Glenn v. Brumby. I cannot explain why a majority of our Court is content to rely on the precedential equivalent of an Edsel with a missing engine,” Rosenbaum continued, “when it comes to an issue that affects so many people.”
Rosenbaum argued that regardless of what a majority of the court’s views might turn out to be on the substantive issue, it had an obligation to, “as a Court, at least subject the issue to the crucial crucible of adversarial testing, and after that trial yields insights or reveals pitfalls we cannot muster guided only by our own lights, to give a reasonable and principled explanation for our position on this issue – something we have never done.” But, shamefully, the 11th Circuit has absented itself from the current interpretive battle.
Bostock is represented by Thomas J. Mew IV, Timothy Brian Green, and Brian J. Sutherland of Buckley Beal LLP, Atlanta, who filed the petition for certiorari on May 25, with Sutherland listed as counsel of record. Clayton County filed a “Waiver” of its right to respond to the petition on June 27, and the petition was circulated to the justices’ chambers on July 3, anticipating the “long conference.” But evidently some of the justices were not satisfied to consider taking this case without hearing from the “other side,” so on July 13 it sent a request for a response, to be due August 13. Clayton County retained counsel, Jack R. Hancock and William H. Buechner, Jr., of Freeman Mathis & Gary LLP, Forest Park, GA, who filed the County’s response to the petition on August 10, opposing the petition. They argued that the appeal was an attempt to get the Court to do Congress’s work, which should be rejected. On August 29, the Supreme Court clerk again circulated all of these papers to the Justices’ Chambers and the petition was scheduled for consideration at the “long conference.”
The other case pending before the Supreme Court presenting the same question, but this time appealing from the employer’s side, is Altitude Express v. Zarda, from the New York-based 2nd Circuit. A three-judge panel had affirmed the district court’s decision to dismiss a Title VII sex discrimination claim by Donald Zarda, a gay sky-diving instructor, who based his claim on alternative assertions of gender stereotyping or sexual orientation discrimination, on April 18, 2017. Zarda died in a sky-diving accident while the case was pending, but his estate stepped in to continue the lawsuit. The 2nd Circuit’s Chief Judge, Robert Katzmann, attached a concurring opinion to the panel ruling, calling for the 2nd Circuit to reconsider this issue en banc in an appropriate case, noting the then-recent ruling by the 7th Circuit in Hively and other developments.
Thus encouraged, Zarda’s Estate sought and obtained en banc review, resulting in the 2nd Circuit’s decisive repudiation of its past precedent on February 26, 2018. Judge Katzmann’s opinion for the en banc court held that discrimination because of sexual orientation is, at least in part, discrimination because of sex, and thus actionable under Title VII. The Estate of Zarda is represented by Gregory Antollino, New York, NY, with Stephen Bergstein, Bergstein & Ullrich, LLP, Chester, NY, on the brief.
Saul D. Zabell and Ryan T. Biesenbach, Zabell & Associates, P.C., of Bohemia, N.Y., counsel for Altitude Express, filed a Supreme Court petition on May 29. Responsive papers were filed over the summer, and all the papers were distributed on September 5 to the Justices’ Chambers anticipating the “long conference.” The federal government, consistent with positions announced in various contexts by Attorney General Jeff Sessions, rejects the 2nd Circuit’s en banc ruling and, if certiorari were granted in Bostock or in Altitude Express v. Zarda, would presumably seek to participate in oral argument.
The third pending Title VII petition, in Equal Employment Opportunity Commission v. R.G. & G.R. Harris Funeral Homes, Inc., comes from the Cincinnati-based 6th Circuit, where a three-judge panel ruled on March 7 that the Funeral Home’s discharge of transgender funeral director Aimee Stephens violated Title VII. The American Civil Liberties Union represents Stephens. The EEOC, which had ruled years earlier that it considered discrimination because of gender identity or gender transitioning to be discrimination because of sex, initiated the lawsuit in the U.S. District Court in the Eastern District of Michigan. Stephens intervened as co-plaintiff.
Although the district judge accepted the EEOC’s argument that this could be a valid sex discrimination case using the gender stereotype theory, he concluded that the funeral home had a right under the Religious Freedom Restoration Act (RFRA) to be free of government prosecution, because of the burden it placed on the funeral home owner’s religious beliefs.
The 6th Circuit affirmed in part and reversed in part. In an opinion by Circuit Judge Karen Nelson Moore, the court agreed with the district judge that gender identity discrimination can be the basis of a Title VII claim, but the court went a step further than prior panel opinions by deciding, as the EEOC had argued, that discrimination “because of sex” inherently includes discrimination against employees who are transgender, without any need to analyze the question of gender stereotypes. The court of appeals reversed the district court’s ruling on the RFRA defense, finding that requiring the employer to continue to employ a transgender funeral director would not substantially burden his right to free exercise of religion. The court specifically rejected the employer’s reliance on presumed customer non-acceptance of a transgender funeral director as a legitimate justification for the discharge. The court also rejected the employer’s argument that because of the religiosity of the owner and the way he conducted his business, his funeral directors should be treated as “ministers” as to whom the owner would enjoy a 1st Amendment-based “ministerial exception” from complying with Title VII.
One might anticipate that a petition to review a Court of Appeals decision that was issued on March 7 would generate the necessary paperwork in time to be considered during the “long conference,” but in this case Alliance Defending Freedom (ADF), the anti-gay religious litigation group that is representing the funeral home, obtained an extension of time to file their petition, which was not docketed until July 20. Responses were due August 23. Then the Court granted a request from the Solicitor General’s Office, representing the government, for an extension of time to file a response, which was granted to September 24, 2018, the date on which the “long conference” would begin. But the Solicitor General wrote to the Court again as this deadline approached requesting a further extension to October 24, which was granted.
At the end of September the government’s official response to this petition had not been filed. With the change of administration since the EEOC started this case, and the position on these issues announced by the Justice Department last year, the Solicitor General would probably urge the Court to take the case and reverse the 6th Circuit on both the Title VII and RFRA rulings. As to the former, last year Attorney General Jeff Sessions issued written guidance that gender identity discrimination does not violate Title VII, and, as to the latter, President Trump issued an executive order, recently amplified by Attorney General Sessions, directing the Executive Branch to give maximum play to free exercise of religion claims.
But there is a further twist to the government’s response. Although the Solicitor General represents the government in the Supreme Court, an administrative agency such as the EEOC could represent itself, if it gets permission from the Solicitor General. The EEOC is the plaintiff in this case, and the winning party in the 6th Circuit. Trump’s appointments of new EEOC commissioners may change the agency’s view of these issues, but as of now the agency’s position is that gender identity discrimination violates Title VII. One of the Supreme Court’s most important functions is to deal with interpretations of federal statutes as to which the lower courts are divided, and there are precedents in several of the circuit courts that differ from the 6th Circuit’s view in this case, but the trend of lower court decisions around the country is to recognize gender identity discrimination claims under Title VII using the gender stereotype theory. Neither the Solicitor General nor the EEOC has announced who will be filing a response on behalf of the government, and what position the government may take in the case.
Counsel for the Funeral Home filed a blanket consent with the court to allow amicus briefs in this case. On the original response date of August 23, the Clerk recorded filing of amicus briefs from the Jewish Coalition for Religious Liberty, the Foundation for Moral Law, the State of Nebraska on behalf of itself and fifteen other states, and Public Advocate of the United States (despite its name, a private organization), all urging the Court to take the case and reverse the 6th Circuit for a variety of reasons, taking issue with the 6th Circuit’s decision on every conceivable point.
ADF, counsel for the funeral home, sent a letter to the Court on September 13, suggesting that because the three Title VII petitions present common questions of statutory interpretation, they should be considered together. After receiving the letter, the Court removed the two sexual orientation cases from the agenda for the long conference, which means that the extension of time granted to all the respondents in the Funeral Home case may delay the Court’s consideration of the other two Title VII petitions for several months.
It would be very surprising if the Court did not grant the petitions in Altitude Express and Harris Funeral Homes, as both court of appeals rulings extend existing splits in circuit court interpretations of Title VII, the nation’s basic employment discrimination statute, and employ reasoning that potentially affects the interpretation of many other federal sex discrimination statutes, such as the Fair Housing Act, the Equal Credit Opportunity Act, Title IX of the Education Amendments Act, and the Affordable Care Act. But it takes four votes to grant a petition for review in the Supreme Court, and as long as the Court remains evenly divided between Democratic and Republican appointees, it is possible that both “camps” will shy away from taking on cases where a tie vote on the merits would affirm the lower court ruling without an opinion or a nationally-binding precedent.
Also pending before the Court is a petition filed on behalf of Oregon Judge Vance D. Day, who was disciplined by the Oregon Commission on Judicial Fitness and Disability in a report that was approved by the Oregon Supreme Court for, among other things, refusing to perform same-sex marriages, claiming a 1st Amendment privilege. The petition, filed on July 23, asks the Court to decide whether Judge Day’s constitutional rights were violated both procedurally and substantively, and raises the contention that judges have a constitutional right to refuse to perform same-sex marriages, despite the Supreme Court’s ruling that same-sex couples have a fundamental right to marry as well as to equal protection of the law. Judge Day is represented by James Bopp, Jr., and other members of his Terre Haute, Indiana law firm. Mr. Bopp is a frequent advocate in opposition to LGBT and reproductive rights. The petition is on the agenda for the Court’s October 11 conference.
There are several other controversies brewing in the lower courts that could rise to the level of Supreme Court petitions during the October 2018 Term.
Following its Masterpiece Cakeshop decision on June 4, the Court vacated a decision by the Washington State Supreme Court against a florist who had refused to provide floral decorations for a same-sex wedding and sent the case back to the Washington court for reconsideration in light of the Masterpiece ruling. This is one of several cases pending in the lower courts, some rising to the federal court of appeals or state supreme courts level, raising the question of religious freedom exemptions from compliance with anti-discrimination laws. The Supreme Court’s evasion of the underlying issue in Masterpiece means that the issue will come back to the Supreme Court, possibly this term, especially as some lower courts have already seized upon language in Justice Kennedy’s opinion observing that the Court has never recognized a broad religious exercise exemption from complying with anti-discrimination laws. Cases are pending concerning wedding cakes, wedding invitations, and wedding videos. And, in a different arena, the Court recently denied a request by Catholic authorities in Philadelphia to temporarily block the City from suspending referrals of children to a Catholic adoption agency that refuses to deal with same-sex couples. The District Court upheld the City’s position, as Gay City News previously report, finding a likely violation of Philadelphia’s public accommodations ordinance that covers sexual orientation and rejecting an exemption for the Catholic adoption agency. This kind of issue could also rise to the Supreme Court, depending how lower court litigation works out.
Litigation continues over a claim by some Houston Republicans that the City is not obligated to provide equal benefits to the same-sex spouses of Houston employees. The case is pending before a state trial judge after the Texas Supreme Court, in a blatant misinterpretation of the Obergefell decision, held that the U.S. Supreme Court had not necessarily decided the issue. This was “blatant” because the Obergefell opinion specifically mentioned insurance as one of the important reasons why same-sex couples had a strong interest in being able to marry, making marriage a fundamental right. Insurance was mentioned as part of a list of reasons, another listed being “birth certificates,” and the Supreme Court specifically quoted from that list in Pavan v. Smith, the 2017 case in which it reversed the Arkansas Supreme Court, rejecting that court’s opinion that Obergefell did not decide the question whether same-sex parents had a right to be listed on birth certificates. Pavan was decided just days before the Texas Supreme Court issued its obtuse and clearly politically-motivated decision in Pidgeon v. Turner! One need not guess too hard at the political motivation. Texas Supreme Court justices are elected, and that court was deluged with communications of protest and pressure from the state’s top elected Republican officials after an earlier announcement that the court was declining to review the Texas Court of Appeals’ decision in this case, which had found Obergefell and the 5th Circuit Court of Appeals’ subsequent marriage equality ruling, DeLeon, to be controlling on the issue.
Before long the Court will probably take up the question whether transgender public school students have a right under Title IX of the Education Amendments of 1972 and the Equal Protection Clause to use restroom and locker room facilities consistent with their gender identity. The Court granted a petition in Gavin Grimm’s case from Virginia and scheduled argument to take place during the October 2016 Term, but the Trump Administration’s withdrawal of the Obama Administration’s interpretation of Title IX persuaded the Court to cancel the argument and send the case back to the 4th Circuit for reconsideration. The 4th Circuit sent the case back to the district court, where the school district argued that it was moot because Grimm had graduated. But Grimm continues to battle the district’s policy as an alumnus. The district court has refused to dismiss a revised version of Grimm’s lawsuit. This is one issue as to which there is not a significant split of lower court authority, but the issue continues to rage, school districts continue to discriminate against transgender students, the U.S. Departments of Education and Justice in the Trump Administration have reversed the Obama Administration’s position that sex discrimination laws protect transgender people, and religious litigation groups such as ADF continue to generate lawsuits, representing parents and students who oppose school district policies that allow transgender students to use the desired facilities. The issue is far from settled, and it may work its way to the Court again soon.
Another candidate for Supreme Court review is Trump’s transgender military service ban, first tweeted in July 2017. The issue that may bring it up to the Court quickly is the government’s refusal to comply with pre-trial discovery orders, in which plaintiffs in the four pending challenges are seeking information about the alleged basis for the ban, noting Trump’s vague reference to having consulted “my generals and military experts” before his tweet, and the undisclosed identity of the members of Defense Secretary Mattis’s “Task Force” that produced the memorandum he submitted in support of his version of the ban that Trump authorized him to adopt in March 2018. As of now, preliminary injunctions from the four district judges have kept the ban from going into effect and required the Defense Department to accept applications from transgender people, beginning January 1, 2018. On September 18, District Judge Jesus Bernal in Riverside, California, became the fourth district judge to reject the government’s motion for summary judgment, and to refuse to dissolve the preliminary injunction he had previously issued. Seattle District Judge Marsha Pechman’s discovery order is being appealed to the 9th Circuit Court of Appeals. The Solicitor General recently filed a petition with the Supreme Court to stay Judge Pechman’s order, since her deadline for compliance was looming and the 9th Circuit had not acted on the government’s motion to stay, but the 9th Circuit then granted the motion and the petition was withdrawn. If any one of the four district courts grants the plaintiffs’ motion for summary judgment, of course, the government will appeal on the merits and the case may end up in the Supreme Court. This litigation may provide the vehicle for the Court to determine the extent to which government discrimination against transgender people violates the Equal Protection requirement of the 5th Amendment.
Watch this space for further developments!Tags: Anthony Kennedy, anti-LGBT discrimination under Title VII, Bostock, Bostock v. Clayton County Board of Commissioners, Brett Kavanaugh, EEOC v. Harris Funeral Homes, EEOC v. R.G. & G.R. Harris Funeral Homes, Estate of Zarda v. Altitude Express, Judge Vance Day, LGBT Rights Issues in the Supreme Court, Masterpiece Cakeshop, Supreme Court October 2018 Term, Supreme Court of the United States, transgender military ban, Zarda v. Altittude Express