The U.S. Supreme Court’s Fall 2012 Term, which began on October 1, may go down in history for the largest number of important decisions on LGBT issues in a single term, but the Court’s first actions were to clear the decks by denying review in two pending cases of gay interest, National Organization for Marriage v. McKee and Pinter v. City of New York. The Court has yet to announced whether or when it will hear appeals in several cases challenging the Defense of Marriage Act, the Proposition 8 case from California, or a case about public employee domestic partnership benefits from Arizona.
The National Organization for Marriage, which might better be called the National Organization Against Marriage for Same-Sex Couples, is, despite its grand-sounding name, a tiny organization, but it channels large sums of money from conservative donors into opposing same-sex marriage through political activity and litigation. NOM has brought a series of lawsuits challenging state laws that require organizations engaging in such activity to disclose the names of their donors, and the amounts of their donations, to state governments, which will then make the filings public under state disclosure laws.
In an earlier lawsuit, NOM had challenged the state of Maine’s requirement that it register as a political action committee due to its anti-same-sex-marriage political activity in the state. The U.S. Court of Appeals for the First Circuit, located in Boston, had rejected NOM’s argument that requiring it to register and disclose its donors violated constitutional rights of NOM and its donors. The case denied review on October 1 involved similar arguments, this time sparked by the state’s requirement that NOM disclose the names of donors to its efforts in an anti-same-sex-marriage voter referendum in 2009 that blocked a state marriage equality law, approved by the legislature and governor, from going into effect.
NOM argues that requiring disclosure of donors’ names will “chill” political speech and association, because some donors will not express their political views through donations if their financial support is made public, out of fear of retaliation and harm to their reputation. The Supreme Court has not bought this argument wholesale in the past. Just a few years ago, for example, in Doe v. Reed, the Court rejected a similar argument made on behalf of individuals who signed petitions to put a measure on the ballot in Washington State concerning the state’s expansion of its domestic partnership law to include almost all of the rights of marriage. The Supreme Court ruled in that case that disclosure of the names of petition signers would not violate their 1st Amendment rights unless they could show a serious threat that they would be harmed by the disclosure. The Supreme Court sent that case back to the District Court, which ruled that the plaintiffs failed to prove serious harm and ordered that the names of petition-signers be disclosed.
The 1st Circuit Court of Appeals took a similar position in NOM’s most recent lawsuit against the Maine Commission on Governmental Ethics and Election Practices, the agency that is supposed to receive and publicize the names of donors to organizations that campaign for or against ballot measures. “These provisions neither erect a barrier to political speech nor limit its quantity,” wrote the 1st Circuit judges. “Rather, they promote the dissemination of information about those who deliver and finance political speech, thereby encouraging efficient operation of the marketplace of ideas.” As the Supreme Court had rejected NOM’s previous appeals from similar rulings, its denial of review in this case was no surprise. The timing is important, because NOM has reportedly channeled big bucks into Maine this year to fight the affirmative marriage equality initiative that will be on the Maine ballot on November 6. The identity of donors to that effort should be disclosed under the Maine statutes upheld in this case.
The other case denied review on October 1 more closely affects the daily lives of gay people. Robert Pinter sued a New York City undercover police officer, Commissioner Ray Kelly, Mayor Michael Bloomberg, and various officials of the police department and the mayor’s office, on claims of false arrest, malicious prosecution, malicious abuse of process, discriminatory treatment, and denial of the right to free association. Pinter was arrested on October 10, 2008, and brought up on spurious prostitution charges.
Pinter had been browsing the videos at an adult establishment called Blue Door, when a handsome young man began flirting with him and initiated conversation. Pinter, 52, was flattered by the attention, and when the young man asked “what do you like to do,” Pinter mentioned oral sex. The young man expressed hesitant enthusiasm, and they left the store together. As they were about to leave the store, the young man said he would pay Pinter $50 for oral sex. Pinter, astonished, said nothing to this, thinking to himself that “the possibility of really engaging in anything” with the man “was over,” but Pinter continued walking with him and was soon surrounded by other undercover officers who arrested Pinter for prostitution, which Pinter found even more astonishing, since he had said nothing in response to the offer of money.
A few days after the arrest, Pinter pled guilty to a lesser charge of disorderly conduct and was sentenced to conditional discharge, five counseling sessions, and a mandatory fine. But Pinter was unwilling to let things rest and publicized his case, which was similar to several other arrests that had been made recently of gay men by undercover police. It appeared that the City, in its campaign to close down more adult businesses that were thriving under the 60/40 adult business zoning regulations, may have been pursuing these arrests in order to support its argument that “secondary effects” of these businesses, such as being venues for prostitution, would justify shutting them down. Ultimately the campaign proved an embarrassment to the District Attorney’s Office, which dropped charges against some of the other men and did not oppose Pinter’s motion to vacate his guilty plea.
Pinter then filed this lawsuit, which the City moved to dismiss. U.S. District Judge Shira Scheindlin denied the City’s motion, specifically rejecting the City’s argument that the undercover police officer was shielded by “qualified immunity” against personal liability to Pinter. When a government official is carrying out official discretionary duties, such as law enforcement, “qualified immunity” protects him from personal liability unless a reasonable official in his position would know that his conduct was unconstitutional. Under Pinter’s theory of the case, the undercover set him up with the prostitution charge without having probable cause to arrest him, in furtherance of an agenda against adult businesses. Judge Scheindlin would have allowed that false arrest claim, as well as Pinter’s other claims against higher officials and the City, to go forward.
But the City appealed her ruling, and the Court of Appeals for the 2nd Circuit reversed on the false arrest and malicious prosecution claims. According to the 2nd Circuit judges, Pinter’s failure to openly reject the undercover’s offer of money, as well as continuing to walk with him after he made the offer, could be construed by an undercover officer as agreement with his proposition, so the police officer had at least “arguable probable cause” to arrest Pinter. However, the 2nd Circuit only reversed as to the false arrest and malicious prosecution claims. The claims of abuse of process, discrimination and various other claims, and the question whether the City itself should be held liable to Pinter, remain alive in the case against other defendants and the City.
Pinter’s attempt to get the Supreme Court to review the 2nd Circuit’s ruling has now been rejected, but the rest of the case will proceed.
Most of the attention at the beginning of the Supreme Court’s term was not focused on these two cases, however. In California, the LGBT community is awaiting word on whether the Court will grant review in Hollingsworth v. Perry, the attempt by the Proponents of Proposition 8 to reverse the 9th Circuit Court of Appeals’ decision that Proposition 8 violates the 14th Amendment’s Equal Protection Clause. If the Supreme Court denies review, the 9th Circuit’s decision could go into effect soon thereafter, which means that the California constitutional provision banning same-sex marriage would be invalidated and the state would resume issuing marriage licenses to same-sex couples.
Also awaiting further action by the Supreme Court is Arizona Governor Jan Brewer’s quest to vacate a preliminary injunction requiring her state to continuing providing domestic partnership benefits to same-sex partners of state employees.
Also pending are petitions in four cases challenging the federal definition of marriage (which excludes same-sex couples) adopted in 1996 in Section 3 of the Defense of Marriage Act (DOMA). The Court will eventually rule on all of these petitions, but there is no firm time limit for it to do so. The Solicitor General filed petitions in September asking the Court to review the district court rulings holding DOMA Section 3 unconstitutional in cases from New York and Connecticut, and had also earlier supported a petition for review of the DOMA challenges from Massachusetts decided earlier this year by the 1st Circuit Court of Appeals. The time for other parties to the case to respond to the Solicitor General’s petition will end on October 11, and the Court is likely to take up all the DOMA certiorari petitions, including one filed in a case from California as well, in November. It is highly likely that the Court will eventually agree to review one or more of the DOMA cases, but an announcement may not come until after the elections on November 6. There has been some speculation that the Court may be waiting to see what happens in the four same-sex marriage ballot questions pending in Maine, Maryland, Minnesota and Washington State before deciding what to do about these petitions.