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Church Loses Battle with Amazon Over Exclusion from AmazonSmile Program

Posted on: August 1st, 2021 by Art Leonard No Comments

The AmazonSmile Foundation, a tax-exempt corporation affiliated with Amazon.com, declined an application by Coral Ridge Ministries Media, a Christian ministry and media corporation, to participate in the AmazonSmile program, because the Southern Poverty Law Center (SPLC) listed Coral Ridge as a “hate group” on its website, due to Coral Ridge’s expressed views about homosexuality.  Under the Amazon Smile program, Amazon customers designate charities from a list approved by the Foundation to receive a donation from Amazon of 0.5% of purchases of qualifying goods and services from the Amazon.com website.   Under the terms of the program, “hate groups” may not participate, even if they would otherwise qualify as tax-exempt charitable organizations.

On July 28, the U.S. Court of Appeals for the 11th Circuit rejected Coral Ridge’s state law defamation claim against SPLC for labeling it a “hate group” and its religious discrimination claim against Amazon for excluding it from the Smile program.  Circuit Judge Charles Wilson wrote for the three-judge panel in Coral Ridge Ministries Media, Inc. v. Amazon.com, Inc., 2021 WL 3184962.

Senior U.S. District Judge Myron Thompson had dismissed the lawsuit on both claims in September 2019, concluding that Coral Ridge’s allegations fell short of describing actionable defamation under Alabama law, and that the AmazonSmile program is not a public accommodation covered by Title II of the Civil Rights Act of 1964, which forbids discrimination because of religion.  See 406 F. Supp. 3d 1258 (M.D. Ala.). He alternatively found that allowing Coral Ridge’s claim would violate Amazon’s First Amendment rights, and that Coral Ridge’s factual allegations did not support a claim of discrimination because of religion.  While agreeing that Thompson correctly dismissed the case, the three-judge Court of Appeals panel ruled more narrowly than had Thompson on both claims.

To win a defamation suit, a plaintiff must allege that the defendant made a damaging false statement of fact about the plaintiff.  If the plaintiff is considered a “public figure,” which Coral Ridge conceded that it is, the plaintiff has to show that the false statement was made with “actual malice” by the defendant.  “Actual malice” is a term of art in defamation law.  It means that defendant made the false statement “with knowledge that it was false or with reckless disregard of whether it was false or not.”

“Coral Ridge did not sufficiently plead facts that give rise to a reasonable inference that SPLC ‘actually entertained serious doubts as to the veracity’ of its hate group definition and that definition’s application to Coral Ridge,” wrote Judge Wilson, “or that SPLC was ‘highly aware’ that the definition and its application was ‘probably false.’”  In this case, Coral Ridge was quibbling with the definition of a hate group that SPLC stated on its website.  Since SPLC states its own definition, however, “it is hard to see how SPLC’s use of the term would be misleading,” wrote Judge Wilson.

While conceding that Coral Ridge rejected homosexuality based on religious beliefs, the church alleged that it “has never attacked or maligned anyone on the basis of engaging in homosexual conduct,” but even accepting that allegation as true – which the court would have to do in ruling on a motion to dismiss the case as a matter of law —  the court found that Coral Ridge’s allegation provided no basis for finding that SPLC intentionally or recklessly mislabeled the church, so it upheld Judge Thompson’s dismissal of this claim.

The discrimination claim against Amazon is more complicated.  For one thing, it is not clear that Amazon.com or its affiliate AmazonSmile Foundation could be considered public accommodations in their dealings with applicants to participate in the Smiles program.  While Judge Thompson had assumed without analysis that these defendants could be considered “places of public accommodation,” he found that the AmazonSmile program “did not qualify as a ‘service,’ ‘privilege,’ or ‘advantage’ under the statute,” or, alternatively, that it could violate the First Amendment for a court to order Amazon to donate to Coral Ridge.

Avoiding having to rule on the statutory issue, the court of appeals went directly to Amazon’s constitutional defense, which it found to be valid.  The Supreme Court has frequently ruled that donating money, whether to a charity or a political cause, is expressive conduct protected by the First Amendment.  That’s the basis, for example, for the Court’s decision striking down various campaign finance reforms by Congress, such as the infamous Citizens United case.  Judge Wilson quoted Harris v. Quinn, 573 U.S. 616 (2014), a Supreme Court ruling stating that “no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support.”  The court found that this ruling “mapped on” to Amazon’s constitutional argument.

Coral Ridge argued that because Amazon patrons select the charities to which 0.5% of their purchases would be donated, they are the real donors, treating Amazon as a mere conduit for their donations.  But AmazonSmile makes clear in its application process that Amazon exercises judgment about which charities can participate, and specifically states that entities designated as “hate groups” by SPLC are disqualified.  “We have no problem finding that Amazon engages in expressive conduct when it decides which charities to support through the AmazonSmile program,” wrote the judge.

The court drew an analogy to the Supreme Court’s ruling in Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995), that the South Boston Allied War Veterans Council had a First Amendment right to exclude the Irish-American Gay, Lesbian & Bisexual Group of Boston from the St. Patrick’s Day Parade organized by the Council.  The Supreme Court ruled that the state could not require the Council to let GLIB march, as that would be imposing on the Council a message that they did not wish to include in their parade.  The Massachusetts Supreme Judicial Court had ruled that the Parade was a public accommodation and GLIB was entitled to participate, but the Supreme Court unanimously reversed that ruling to protect the free speech rights of the parade’s organizers.

“In the same way that the Council’s choice of parade units was expressive conduct,” wrote Judge Wilson, “so too is Amazon’s choice of what charities are eligible to receive donations through AmazonSmile.  Applying Title II in the way Coral Ridge proposes would not further the statute’s purpose of ‘securing for all citizens the full enjoyment of facilities described in the Act which are open to the general public.’”  Consequently, the court concluded that Coral Ridge’s proposed interpretation of Title II “would infringe on Amazon’s first Amendment Right to engage in expressive conduct and would not further Title II’s purpose,” so it affirmed Judge Thompson’s decision to dismiss Coral Ridge’s religious discrimination claim.

Judge Wilson was appointed to the Court by President Bill Clinton.  Joining his decision were Circuit Judge Britt Grant, appointed by President Donald Trump, and Senior Circuit Judge Gerald Tjoflat, appointed by President Gerald Ford.  Senior District Judge Thompson was appointed by President Jimmy Carter.

Federal Appeals Court Rules Laws Against Conversion Therapy Using Solely Speech Violate the First Amendment

Posted on: November 22nd, 2020 by Art Leonard No Comments

A three-judge panel of the Atlanta-based U.S. Court of Appeals for the 11th Circuit ruled on November 20 in Otto v. City of Boca Raton, 2020 U.S. App. LEXIS 36589, 2020 WL 6813994, that laws enacted by Boca Raton and Palm Beach County, Florida, prohibiting licensed therapists from performing conversion therapy on minors, violate the therapists’ rights to freedom of speech under the First Amendment.  The panel voted 2-1.  Two judges appointed by Donald Trump – Britt Grant and Barbara Lagoa – made up the majority.  Beverly Martin, appointed by Barack Obama, dissented.

Both of the local laws at issue were enacted in 2017.  In both cases, the local legislatures reviewed the voluminous professional literature condemning “sexual orientation change efforts” (SOCE), commonly called “conversion therapy,” as being fraudulent and causing potential harm to minors.  The legislatures concluded that this evidence was sufficient to justify outlawing the procedure.  Since local governments do not have authority to suspend or terminate a professional license granted by the state, instead they authorized fines to be imposed on licensed counselors who were found to have performed such “therapy.”  The local laws do not apply to unlicensed counselors, including religious counselors who are not required by the state to be licensed.

Nobody has actually been prosecuted under either law, but two licensed counselors, Robert W. Otto and Julie H. Hamilton, represented by lawyers from Liberty Counsel, an anti-LGBT legal organization, filed lawsuits claiming that the therapy they provide consists entirely of speech which cannot be outlawed by the government. They asserted that they do not claim that they can change a person’s sexual orientation, but that their therapy is intended to help their clients to “reduce same-sex behavior and attraction and eliminate what they term confusion over gender identity.”  They also asserted that their patients “typically” have religious beliefs that conflict with homosexuality and “seek SOCE counseling in order to live in congruence with their faith and to confirm their identity, concept of self, attractions, and behaviors to their sincerely held religious beliefs.”

The plaintiffs also argued that their equal protection rights were violated because unlicensed counselors were not prohibited from performing SOCE, and that the localities were preempted from passing any law regulating the practice of therapists licensed by the state.  They sought a preliminary injunction barring enforcement of the laws while the case was pending, which was denied to them by the district court.  This appeal to the 11th Circuit sought to overturn the district court ruling and get the preliminary injunction pending a final ruling on the merits of their claims.

Similar laws passed by several states and other localities have been upheld against 1st Amendment claims.  Both the 3rd Circuit Court of Appeals in King v. Governor of New Jersey, 767 F. 3d 216 (2014), ruling on a New Jersey statute, and the 9th Circuit in Pickup v. Brown, 740 F.3d 1208 (2014), ruling on a California statute, have rejected the argument that this “talk therapy” is shielded from state regulation by the First Amendment.  They have held that the incidental burden on therapists’ speech was justified within the government’s legitimate role of regulating the practices of licensed practitioners, and the 3rd Circuit, in particular, held that when therapists are using speech in the context of providing “therapy,” that is professional speech that comes within the sphere of regulatory authority.  Furthermore, these other courts have recognized the compelling interest of states in protecting minors from harm.

In 2018, the Supreme Court ruled in a California case, National Institute of Life Advocates v. Becerra, 138 S. Ct. 2361, that a state law requiring reproductive health clinics that do not provide abortion services to provide their clients with information about the availability of such services from other providers, was an unconstitutional imposition of a speech requirement in violation of the 1st Amendment.  California sought to defend its law by invoking the concept of “professional speech” as falling within the sphere of legitimate state regulation.  Writing for the Court in that case, Justice Clarence Thomas rejected the idea that speech employed in the context of providing health care was a separate category of speech to be evaluated differently from other forms of speech that receive the full protection of the 1st Amendment.  He specifically criticized the 3rd and 9th Circuit conversion therapy opinions in this connection, rejecting the idea that speech should enjoy less robust constitutional protection because it was used by licensed counselors as their method of providing therapy.

Following Justice Thomas’s lead, the panel majority in this case held that the local laws should be reviewed under the “strict scrutiny” standard, as a content-based and viewpoint-based restriction on speech. This means that the laws would be treated as presumptively unconstitutional, placing the burden on the government to prove that they were necessary to achieving a compelling state interest and were narrowly tailored to avoid imposing unnecessary burdens on free speech.

Applying this strict scrutiny test, the majority of the panel concluded that the laws were unconstitutional.  Although Judge Britt Grant, writing for the majority, acknowledged that protecting children from harm is a compelling state interest, she rejected the argument that harm to children had been sufficiently shown to justify this abridgement of speech.

Pointing to the reports and studies that were considered by the legislatures in passing these laws, Grant wrote, “But when examined closely, these documents offer assertions rather than evidence, at least regarding the effects of purely speech-based SOCE.  Indeed, a report from the American Psychological Association [a Task Force Report from 2009], relied on by the defendants, concedes that ‘nonaversive and recent approaches to SOCE have not been rigorously evaluated.’  In fact, it found a ‘complete lack’ of ‘rigorous recent prospective research’ on SOCE.”  She also noted that the same report stated that “there are individuals who perceive they have been harmed and others who perceived they have benefited from nonaversive SOCE.’ What’s more, because of this ‘complete lack’ of rigorous recent research, the report concludes that it has ‘no clear indication of the prevalence of harmful outcomes among people who have undergone’ SOCE.”

“We fail to see,” Grant continued, “how, even completely crediting the report, such equivocal conclusions can satisfy strict scrutiny and overcome the strong presumption against content-based limitations on speech.”  Grant pointed out that people who claimed to have been harmed by SOCE practitioners can bring malpractice claims or file complaints with state regulators of professional practice, but he asserted that the state may not categorically outlaw the practice without stronger evidence that it actually causes harm.

When a plaintiff seeks a preliminary injunction barring enforcement of a challenged law before the trial court has ruled on the merits of the challenge, the plaintiff must show that it has stated a potentially valid claim and would suffer irreparable injury if the law can be enforced against them.  In this case, Judge Grant wrote, since the majority of the panel found the law to be unconstitutional, it was reversing the district court decision and sending the case back to the district court “for entry of a preliminary injunction consistent with this opinion.”

The dissenting judge, Beverly Martin, conceded that the challenged laws are subject to “strict scrutiny.”  In the face of Justice Thomas’s statements in the 2018 NIFLA decision, it seems likely that basing her dissent on the idea that these laws regulate professional conduct and not speech as such was not going to get anywhere.  But, she argued, this is that rare case where a statute that prohibits a form of speech based on its content and viewpoint could be justified as serving the compelling interest of protecting minors from harm.

She rejected the majority’s conclusion that the laws “restrict ideas to which children may be exposed” by pointing out that nothing in the laws prevents therapists from discussing with their minor patients “the perceived benefits of SOCE,” and also that the therapists “may recommend that their minor patients receive SOCE treatment from a provider elsewhere in Florida.”  The only limitation imposed by the laws was the actual practice of this “talk therapy” on their patients within the jurisdictions of Boca Raton and Palm Beach County.

Most of her dissent was devoted to dissecting the majority’s dismissive evaluation of the evidence on which the Boca Raton and Palm Beach County legislators had relied to find it necessary to ban conversion therapy in order to protect minors.  She rejected Judge Grant’s assertion that there is “insufficient evidence to conclude that SOCE is so harmful as to merit regulation.”  Pointing to the 2009 APA Task Force report, she quoted, “there was some evidence to indicate that individuals experienced harm from SOCE,” including nonaversive methods.  The Task Force Report went on to say that “attempts to change sexual orientation may cause or exacerbate distress and poor mental health in some individuals, including depression and suicidal thoughts.”  And the Report “catalogued recent studies reporting that patients who undergo SOCE experience negative consequences including ‘anger, anxiety, confusion, depression, grief, guilt, hopelessness, deteriorated relationships with family, loss of social support, loss of faith, poor self-image, social isolation, intimacy difficulties, intrusive imagery, suicidal ideation, self-hatred, and sexual dysfunction.’”

She was particularly critical of Grant’s heavy reliance on the Report’s comment about the lack of “rigorous recent prospective research” on SOCE.  First, she wrote, “what studies have been done ‘show that enduring change to an individual’s sexual orientation is uncommon,’ and that there is, in fact, already ‘evidence to indicate that individuals experience harm from SOCE.”

Perhaps more significantly, she pointed out that rigorous research would require an unethical methodology.  She wrote, “the APA has cautioned that ‘to conduct a random controlled trial of a treatment that has not been determined to be safe is not ethically permissible and to do such research with vulnerable minors who cannot themselves provide legal consent would be out of the question for institutional review boards to approve.”

“To be clear,” wrote Martin, “the very research the majority opinion seems to demand is ‘not ethically permissible’ to conduct.  Thus, one implication of the majority holding is that because SOCE is too dangerous to study, children can continue to be subjected to it.  The majority opinion has the result of inviting unethical research that is nowhere to be found in First Amendment jurisprudence.”

Further, she noted, there is “the recognition that homosexuality is not a mental illness as well as the particular vulnerability of minors as a test-study population.  All of this evidence leads to the inescapable conclusion that performing efficacy studies for SOCE on minors would be not only dangerous (by exposing children to a harmful practice known to increase the likelihood of suicide) but pointless (by studying a treatment for something that is not a mental-health issue).”

She also criticized the majority for focusing on comments selectively quoted from one APA Task Force report, and discounting that “SOCE is a practice that has already been deemed by institutions of science, research and practice” – listing nine of them – “to pose real risks of harm on children.  It is reasonable for the Localities to enact the Ordinances based on the existing evidentiary record as to harm.”

She rejected the plaintiffs’ argument that the Ordinances were either too overinclusive or underinclusive to survive strict scrutiny review.  “I believe the Localities’ narrow regulation of a harmful medical practice affecting vulnerable minors falls within the narrow band of permissibility,” she concluded,” asserting that the plaintiffs are not entitled to a preliminary injunction.

At this point, the Boca Raton and Palm Beach County governments have strategic decisions to make.  The “luck of the draw” exposed them to a three-judge panel whose majority were Trump appointees.  Since this opinion is out of step with rulings by other federal courts of appeals, it is possible that the 11th Circuit would grant a motion for reconsideration en banc.

However, at present, six Trump appointees are balanced by four Obama appointees, one Clinton appointee, and an appointee of George W. Bush, so the “Trump judges” make up exactly half of the 11th Circuit bench, and the chances that the full circuit would overturn this ruling seem slim.

The defendants could also directly petition the Supreme Court for review.  But in light of the current line-up of that Court, to take this issue to that Court directly would really be tempting fate and, in the past, the Supreme Court has declined to review the constitutionality of anti-SOCE laws from other jurisdictions.

This is the first federal court of appeals to part company from the many cases rejecting First Amendment challenges to  these laws, increasing the likelihood that the Supreme Court would grant review, which could produce (in a worst case scenario) an opinion invalidating all the existing U.S. laws against conversion therapy.  On the other hand, a Supreme Court opinion upholding the constitutionality of these laws could encourage the current campaign to get more state and local governments to adopt them.  But given the odds, it may be particularly prudent for the defendants not to appeal, let the preliminary injunction go into effect, and concentrate on putting together a strengthened evidentiary record on the harms that SOCE does to minors to make it more likely they will prevail on the merits before the district court.

The court received five amicus briefs, all defending the challenged laws.  Among the organizations signing the briefs were the National Center for Lesbian Rights, Southern Poverty Law Center, Equality Florida Institute, Inc., The Trevor Project, American Psychological Association, Florida Psychological Association, National Association of Social Workers, National Association of Social Workers Florida Chapter, and American Association For Marriage and Family Therapy.

Federal Court Dismisses Challenge to Maryland Law Against Conversion Therapy for Minors

Posted on: September 24th, 2019 by Art Leonard No Comments

On September 20, U.S. District Judge Deborah K. Chasanow of the federal district court in Maryland granted that state’s motion to dismiss a lawsuit brought by Liberty Counsel on behalf of a conversion therapy practitioner who was challenging the state’s recently enacted law that provides that “a mental health or child care practitioner may not engage in conversion therapy with an individual who is a minor.” The ban is enforceable  through the professional licensing process enforced by the Department of Health and Mental Hygiene.  The named defendants are Governor Larry Hogan and Attorney General Brian Frosh.  The case is Doyle v. Hogan, 2019 WL 4573382, 2019 U.S. Dist. LEXIS 160709 (D. Md., Sept. 20, 2019).

The plaintiff, Christopher Doyle, argued that the law violates his right to freedom of speech and free exercise of religion, seeking a preliminary injunction against the operation of the law while the litigation proceeds.  Having decided to dismiss the case, however, Judge Chasanow also denied the motion for preliminary relief as moot.  Liberty Counsel immediately announced an appeal to the U.S. Court of Appeals for the 4th Circuit, which has yet to rule on a constitutional challenge against a conversion therapy ban.

Several U.S. Circuit courts have rejected similar challenges.  The New Jersey statute, signed into law by Governor Chris Christie, was upheld by the 3rd Circuit Court of Appeals, which ruled that the state has the power to regulate “professional speech” as long as there was a rational basis for the regulation.  King v. Governor of New Jersey, 767 F. 3d 216 (3rd Cir. 2014). The California statute, signed into law by Governor Jerry Brown, was upheld by the 9th Circuit, which characterized it is a regulation of professional conduct with only an incidental effect on speech, and thus not subject to heightened scrutiny by the court.  Pickup v. Brown, 740 F.3d 1208 (9th Cir. 2015).  Liberty Counsel is also appealing a similar ruling by a federal court in Florida to the 11th Circuit.

The task of protecting statutory bans on conversion therapy against such constitutional challenges was complicated in June 2018 when U.S. Supreme Court Justice Clarence Thomas, writing for the Court in a 5-4 decision involving a California law imposing certain notice requirements on licensed and unlicensed pregnancy-related clinics, wrote disparagingly of the 3rd and 9th Circuit conversion therapy opinions.  National Institute of Family and Life Advocates v. Becerra, 138 S. Ct. 2361 (2018). The California statute required the clinics to post notices advising customers about pregnancy-related services, including family planning and abortion, that are available from the state, and also required non-licensed clinics to post notices stating that they were not licensed by the State of California.  The clinics protested that the statute imposed a content-based compelled speech obligation that violated their free speech rights and was subject to “strict scrutiny.” Such speech regulations rarely survive a strict scrutiny constitutional challenge.

The Supreme Court voted 5-4 to reverse a decision by the 9th Circuit, which had ruled that the notices constituted “professional speech” that was not subject to “strict scrutiny.”  In so doing, Justice Thomas rejected the idea that there is a separate category of “professional speech” that the government is free to regulate.  He asserted that “this Court has not recognized ‘professional speech’ as a separate category of speech.  Speech is not unprotected merely because it is uttered by ‘professionals.’”

“Some Court of Appeals have recognized ‘professional speech’ as a separate category of speech that is subject to different rules,” Thomas observed, citing among examples the 3rd Circuit and 9th Circuit conversion therapy cases.  “These courts define ‘professionals’ as individuals who provide personalized services to clients and who are subject to ‘a generally applicable licensing and regulatory regime.’ ‘Professional speech’ is then defined as any speech by these individuals that is based on ‘[their] expert knowledge and judgment,’ or that is ‘within the confines of [the] professional relationship,’” this time quoting from the 3rd Circuit and 9th Circuit opinions.  “So defined, these courts except professional speech from the rule that content-based regulations of speech are subject to strict scrutiny,” again citing the 3rd and 9th Circuit cases.

After reiterating that the Supreme Court has not recognized a category of “professional speech,” Thomas does concede that there are some circumstances where the court has applied “more deferential review” to “some laws that require professionals to disclose factual, noncontroversial information in their ‘commercial speech,” and that “States may regulate professional conduct, even though that conduct incidentally involves speech.”  But, the Court concluded, neither of those exceptions applied to the clinic notice statute.

As a result of Justice Thomas’s comments about the 3rd and 9th Circuit cases, when those opinions are examined on legal research databases such as Westlaw or Lexis, there is an editorial indication that they were “abrogated” by the Supreme Court.  Based on that characterization, Liberty Counsel sought to get the 3rd Circuit to “reopen” the New Jersey case, but it refused to do so, and the Supreme Court declined Liberty Counsel’s request to review that decision.

Liberty Counsel and other opponents of bans on conversion therapy have now run with this language from Justice Thomas’s opinion, trying to convince courts in new challenges to conversion therapy bans that when the practitioner claims that the therapy is provided solely through speech, it is subject to strict scrutiny and likely to be held unconstitutional.  The likelihood that a law will be held unconstitutional is a significant factor in whether a court will deny a motion to dismiss a legal challenge or to grant a preliminary injunction against its enforcement.

Liberty Counsel used this argument to attack conversion therapy ordinances passed by the city of Boca Raton and Palm Beach County, both in Florida, but U.S. District Judge Robin Rosenberg rejected the attempt in a ruling issued on February 13, holding that despite Justice Thomas’s comments, the ordinances were not subject to strict scrutiny and were unlikely to be found unconstitutional. She found that they were covered under the second category that Justice Thomas recognized as being subject to regulation: where the ordinance regulated conduct that had an incidental effect on speech.  Otto v. City of Boca Raton, 353 F. Supp. 3d 1237 (S.D. Fla. 2019).

Liberty Counsel argued against that interpretation in its more recent challenge to the Maryland law.  It argued in its brief, “The government cannot simply relabel the speech of health professionals as ‘conduct’ in order to restrain it with less scrutiny,” and that because Dr. Doyle “primarily uses speech to provide counseling to his minor clients, the act of counseling must be construed as speech for purposes of First Amendment review.”

The problem is drawing a line between speech and conduct, especially where the conduct consists “primarily” of speech.  Judge Chasanow noted that the 4th Circuit has explained, “When a professional asserts that the professional’s First Amendment rights ‘are at stake, the stringency of review slides ‘along a continuum’ from ‘public dialogue’ on one end to ‘regulation of professional conduct’ on the other,” continuing: “Because the state has a strong interest in supervising the ethics and competence of those professions to which it lends its imprimatur, this sliding-scale review applies to traditional occupations, such as medicine or accounting, which are subject to comprehensive state licensing, accreditation, or disciplinary schemes.  More generally, the doctrine may apply where ‘the speaker is providing personalized advice in a private setting to a paying client.’”

And, quoting particularly from the 3rd Circuit New Jersey decision, “Thus, Plaintiff’s free speech claim turns on ‘whether verbal communications become ‘conduct’ when they are used as a vehicle for mental health treatment.”

Judge Chasanow found that the Maryland statute “obviously regulates professionals,” and although it prohibits particular speech “in the process of conducting conversion therapy on minor clients,” it “does not prevent licensed therapists from expressing their views about conversion therapy to the public and to their [clients.]”  That is, they can talk about it, but they can’t do it!  “They remain free to discuss, endorse, criticize, or recommend conversion therapy to their minor clients.”  But, the statute is a regulation of treatment, not of the expression of opinions.  And that is where the conduct/speech line is drawn.

She found “unpersuasive” Liberty Counsel’s arguments that “conversion therapy cannot be characterized as conduct” by comparing it to aversive therapy, which goes beyond speech and clearly involves conduct, usually involving an attempt to condition the client’s sexual response by inducing pain or nausea at the thought of homosexuality.  She pointed out that “conduct is not confined merely to physical action.” The judge focused on the goal of the treatment, reasoning that if the client presents with a goal to change their sexual orientation, Dr. Doyle would “presumably adopt the goal of his client and provide therapeutic services that are inherently not expressive because the speech involved does not seek to communicate [Doyle’s] views.”

She found that under 4th Circuit precedents, the appropriate level of judicial review is “heightened scrutiny,” not “strict scrutiny,” and that the ordinance easily survives heightened scrutiny, because the government’s important interest in protection minors against harmful treatment comes into play, and the legislative record shows plenty of data on the harmful effects of conversion therapy practiced on minors.  She notes references to findings by the American Psychological Association Task Force, the American Psychiatric Association’s official statement on conversion therapy, a position paper from the American School Counselor Association, and articles from the American Academy of Child and Adolescent Psychiatry and the American Association of Sexuality Educations, Counselor, and Therapists.  Such a rich legislative record provides strong support to meet the test of showing that the state has an important interest that is substantially advanced by banning the practice of conversion therapy on minors.

Having reached this conclusion, the judge rejected Liberty Counsel’s argument that the ban was not the least restrictive way of achieving the legislative goal, or that it could be attacked as unduly vague.  It was clear to any conversion therapy practitioner what was being outlawed by the statute, she concluded.

Turning to the religious freedom argument, she found that the statute is “facially neutral” regarding religion.  It prohibits all licensed therapists from providing this therapy “without mention of or regard for their religion,” and Liberty Counsel’s Complaint “failed to provide facts indicating that the ‘object of the statute was to burden practices because of their religious motivation.’”  She concluded that Doyle’s “bare conclusion” that the law “displays hostility toward his religious convictions is not enough, acting alone, to state a claim” that the law violates his free exercise rights.  She also rejected the argument that this was not a generally applicable law because it was aimed only at licensed practitioners.  Like most of the laws that have been passed banning conversion therapy, the Maryland law does not apply to religious counselors who are not licensed health care practitioners.  Because the law is enacted as part of the regulation of the profession of health care, its application to those within the profession is logical and has nothing to do with religion.  As a result, the free exercise claim falls away under the Supreme Court’s long-standing precedent that there is no free exercise exemption from complying with religiously-neutral state laws.

Having dismissed the First Amendment claims, Judge Chasanow declined to address Liberty Counsel’s claims under the Maryland Constitution, since there is no independent basis under the court’s jurisdiction to decide questions of state law.

Joining the Office of the Maryland Attorney General in defending the statute were FreeState Justice, Maryland’s LGBT rights organization, with attorneys from the National Center for Lesbian Rights and Lambda Legal.  Also, the law firm of Gibson Dunn & Crutcher of Washington, D.C., submitted an amicus brief on behalf of The Trevor Project, which is concerned with bolstering the mental health of LGBT youth.

Senior District Judge Chasanow was appointed to the court by President Bill Clinton in 1993.

 

Gay Man Wins New Trial of His Claims Against Key West Police

Posted on: October 9th, 2017 by Art Leonard No Comments

A unanimous three-judge panel of the Atlanta-based 11th Circuit Court of Appeals ruled on October 5 that Raymond Berthiaume is entitled to a new trial of his claims against the City of Key West and Police Officer David Smith stemming from Berthiaume’s arrest by Smith early on October 27, 2013. A jury ruled against Berthiaume at the first trial, after the judge had refused Berthiaume’s request that potential jurors be questioned about any anti-gay bias.  Berthiaume v. Smith, 2017 WL 4422465, 2017 U.S. App. LEXIS 19403 (note: the case will be published in Fed. Appx., not Fed. 3rd).

The court summarized the evidence introduced at trial:

Berthiaume was in Key West to attend the Fantasy Fest Parade on October 26 together with his then-partner and now-husband, Jhon Villa, his friend Corey Smith, and his former partner, Nelson Jimenez. After the parade, the group remained in the area for a street party.  By the early morning hours, all but Jimenez were ready to go home.  Jimenez remained in a bar while the others returned to their car, parked on a side street.

After waiting by the car for some time, Berthiaume went back to the bar to get Jimenez so they could finally go home. He led Jimenez out of the bar with his hand on Jimenez’s upper arm.  Jimenez grabbed the car keys and twisted out of Berthiaume’s grasp, running down an alleyway with Berthiaume in pursuit.

The two men were spotted by Lieutenant Smith and several other police officers, who thought they were seeing a fight between the two men and gave pursuit. Smith testified that Berthiaume appeared to be swatting and grabbing at Jimenez with both hands as Jimenez tried to pull away, but another officer who testified said that the only physical contact he saw was Berthiaume’s grasping of Jimenez’s upper arm as he attempted to bring Jimenez back to the car.  Testimony differed as to whether Berthiaume was running or walking after Jimenez.

When Smith caught up with Berthiaume, he pushed him in the shoulder to stop him from pursuing Jimenez. Berthiaume fell to the ground, suffering a fractured wrist and jaw (both of which ultimately required surgery).  Smith spoke to Jimenez, who thanked him for intervening but stated that nothing wrong had happened and he did not want to press charges against Berthiaume.  He also told Smith that the men were former partners and were trying to get back together.  Smith arrested Berthiaume anyway, based on his belief that this was a domestic dispute and that the standard practice of Key West police was to arrest a suspected domestic abuse assailant to assure separation of the parties for at least one night.

Smith also testified that it was appropriate for him to make the arrest despite Jimenez’s refusal to press charges, because Smith had seen (or so he believed) Berthiaume assaulting Jimenez. After investigating the situation, the local prosecutor decided to drop the charges against Berthiaume, who then filed suit against Smith and the City of Key West.

Berthiaume filed his lawsuit in the U.S. District Court, claiming violations of federal civil rights laws and Florida tort law, alleging claims of excessive force, false arrest, false imprisonment, battery/unnecessary force, and malicious prosecution. There was a three-day jury trial.

During jury selection, the judge questioned jurors about possible bias they might have against the police, but declined Berthiaume’s request that the jury be questioned about any possible bias they might have against gay people.   After the jury returned a defense verdict, Berthiaume moved for a new trial, arguing that he was deprived of a fair trial before an impartial jury.  He argued that gay people had only recently begun to gain acceptance in society, and many people still are biased or prejudiced against gay people.  Thus, he argued, in a case such as this, involving both a gay plaintiff and gay witnesses, it was necessary for the court to inquire into prospective jurors’ potential anti-gay bias before empaneling the jury.  The trial judge denied the motion, and Berthiaume appealed.

The appeals court pointed to Rosales-Lopez v. U.S., 451 U.S. 182, a 1981 Supreme Court decision, holding that under “special circumstances” the Constitution might require judges to ask questions about racial bias during jury selection in cases where racial issues are “inextricably bound up with the conduct of the trial” and there were “substantial indications” that the jurors might be affected by racial prejudice. In that criminal case, the Supreme Court said that the failure to ask such questions would lead to reversal of the conviction if the circumstances of the case indicated a reasonable possibility that racial prejudice might have influenced the jury.

Building on this precedent, the 11th Circuit had ruled in an unpublished decision in 2014, U.S. v. Bates, 590 F. App’x 882, that failure to inquire into anti-gay bias could also be grounds for reversing a criminal conviction. A gay man had been charged with possession of child pornography.  Police investigators examining his computer also found evidence that the defendant sought gay men for sex on the internet, including photos of him engaged in sex with other men.  The trial judge refused to question the jurors about anti-gay bias or to exclude the evidence, asserting that it was relevant to the charges against the defendant.  The man was convicted, after the prosecution “repeatedly paraded before the jury” the evidence regarding the defendant’s sexual activities with other men.  The 11th Circuit decided in that case that it was reasonably possible that anti-gay bias had affected the verdict and ordered a new trial.

“Here,” as in the earlier case, wrote the court, “Berthiaume’s sexual orientation and that of his witnesses became ‘inextricably bound up with the issues to be resolved at trial.’ In describing the events leading up to Berthiaume’s arrest, the witnesses repeatedly testified about Berthiaume’s romantic relationships with Jimenez and Villa.  Indeed, in explaining why he felt it necessary to arrest Berthiaume despite Jimenez’s refusal to press charges,” continued the court, “Lieutenant Smith explained that victims are often reluctant to press charges in ‘domestic situations’ such as these because they have mixed emotions about the perpetrator.”

Although the trial judge did pose general questions about bias to the jury, none of them were specific enough to determine whether any of the jurors might harbor prejudices against a gay man based on his sexual relationships. While the judge asked if the jurors could be impartial, the appeals court thought this was “not calculated to reveal latent prejudice.”  Thus, the court concluded, the district court “abused its discretion by failing to inquire about prejudice on the basis of sexual orientation during voir dire.”  Since the Defendants had not shown “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained,” wrote the court, “Berthiaume is entitled to reversal.”

Since the jury was not informed during voir dire that the plaintiff and many of the witnesses were gay, they would have no reason to volunteer any information about anti-gay bias in response to the trial judge’s general questions. In this case, said the court, “the risk that latent, undiscovered prejudices may have influenced the jury’s verdict is substantial.”

Although the 11th Circuit, which covers the states of Alabama, Georgia and Florida, had long been seen as a conservative circuit, it experienced a drastic turnaround during the last administration, as President Obama was successful in appointing and getting confirmed five judges. Of the twelve active judges on the court, all but four were appointed by Democratic presidents.  The panel that decided this case included two Clinton appointees (one a senior judge from the 6th Circuit filling out the panel) and one Obama appointee.  Thus far, Donald Trump has appointed one judge to the 11th Circuit who has been confirmed, joining appointees of Presidents Ford, George H.W. Bush, and George W. Bush.

11th Circuit Rejects Tax Deductibility of Surrogacy Expenses

Posted on: October 3rd, 2017 by Art Leonard No Comments

A gay male couple that wants to have a child who is genetically related to one of the men needs to retain the services of at least one and possibly two women, depending whether they are going to use ordinary surrogacy or gestational surrogacy to have the child. Should those expenses be deductible if they exceed the threshold set by the Internal Revenue Code for deductible medical expenses?  On September 25, the 11th Circuit Court of Appeals, affirming a ruling by the Internal Revenue Service, answered in the negative. Morrissey v. United States, 2017 U.S. App. LEXIS 18479, 2017 WL 4229063.

Joseph F. Morrissey, the plaintiff, is a gay man who has been in a monogamous relationship with his same-sex partner since 2000. (They married after the events described in this case took place, when same-sex marriage became legal in Florida.)  Morrissey characterizes himself as “effectively infertile” (since he is gay) because “it is physiologically impossible for two men to conceive a child through sexual relations.”  The way out of this “effective infertility” is to use a surrogate, a woman who is willing to bear a child and give up her parental rights after the child is born.

In 2010, Morrissey and his partner decided to try to have children through in vitro fertilization (IVF) using a gestational surrogate, with Morrissey as the sperm donor. Morrissey’s sperm would be collected and then used to fertilize a donated egg in a petri dish; the resulting embryo would be implanted in a different woman than the egg donor.  The gestational surrogate would then bear the child, both women having agreed to the termination of their parental rights as genetic mother and birth mother.  Between 2010 and 2014 Morrissey went through several IVF procedures involving three egg donors, three surrogates, and two fertility specialists.  He spent more than $100,000 altogether.  (The opinion does not mention whether he actually ended up having kids.)  During tax year 2011, he spent nearly $57,000 that was not covered by insurance on these IVF-surrogacy procedures.  $1,500 of his expenditures that year went toward procedures performed directly on Morrissey – blood tests and sperm collection.  The remainder of his expenditures that year went to identifying and retaining the women who would be egg donors and surrogates, for compensation of their services, reimbursement of their travel and other expenses, and providing medical care to the women.

Morrissey did not claim a deduction for these medical expenses when he filed his 2011 tax return, paying the full $22,449 that he owed in taxes without medical deductions. After paying his taxes, he filed an amended 2011 tax return, claiming a medical expense deduction of $36,538, the amount by which his claimed expenses exceeded the threshold specified in the Code, and seeking a $9,539 refund.  At the time, the threshold was 7.5 of adjusted gross income.  (Today it is 10, having been increased effective with the 2013 tax year.)  The $1500 he spent for medical services to himself could not be deducted on its own, because it would not exceed the threshold.  Only by being able to claim the other expenses associated with the IVF-surrogacy procedures would he be able to have any medical deduction.

The IRS disallowed his deduction and denied the refund, taking the position that Sec. 213, which governs the “medical care” deductions, “states that Medical Care must be for Medical Services provided to the taxpayer, his spouse, or dependent.” As far as IRS was concerned, the expenses Morrissey incurred were not, with the exception of the $1500, for medical services provided to him.

Morrissey then sued in the federal district court, claiming first that Section 213 authorizes his claimed deduction, and second that the IRS’s disallowance of his claim violated his equal protection rights under the 5th Amendment. The district court granted summary judgment for the IRS.

Writing for the panel, in one of his first opinions since being appointed to the court by Donald Trump, Circuit Judge Kevin Newsom rejected Morrissey’s attempt to bring his claim within the language of Section 213. Morrissey argued that the IVF-related expenses were “medical care” because they constituted amounts that were paid “for the purpose of affecting any . . . function of the body.”  The problem, as Newsom pointed out, was that the “body” referred to by the statute is the taxpayer’s body, and the medical care was affecting the functions of the egg donor’s and the surrogate’s bodies.  Wrote Newsom, “Mr. Morrissey contends that all of the IVF-related expenses that he incurred – including the costs attributable to the identification, retention, compensation, and care of the women who served as the egg donor and the surrogate – were made for the purpose of affecting his body’s reproductive function.  In particular, Mr. Morrissey asserts that because he and his male partner are physiologically incapable of reproducing together, IVF was his only means of fathering his own biological children.  Accordingly, Mr. Morrissey claims, it was medically necessary to involve third parties – a female egg donor and a female surrogate – in order to enable his own body to fulfill its reproductive function.”

But Judge Newsom found that the section’s “plain language” foreclosed this argument, getting into a word by word analysis with the dictionary as his authority. As he interpreted the section, it would apply only if “the expenses at issue were paid for the purpose of materially affecting or altering some function of Mr. Morrissey’s body,” and clearly they were not.  Although they were intended to solve the reproductive problem, it was not by rendering care that would affect Morrissey’s body or how his body would function.  Newsom (or more likely his clerk) had fun writing a primer on the physiology of human reproduction, in order to reach the obvious conclusion that a man’s role in the reproductive function is to ejaculate sperm, and none of the “medical care” he was trying to claim had to do with any problem concerning that.

Turning to the equal protection claim, Newsom described Morrissey’s two equal protection arguments. “First, he asserts that we should employ strict scrutiny because the IRS’s disallowance of his claimed deduction under IRC Sec. 213 infringes his fundamental right to reproduce.  Second, he argues that some form of heightened scrutiny should apply because in disallowing the deduction the IRS discriminated against him on the basis of his sexual orientation.”

While conceding that the Supreme Court has described reproduction as a fundamental right in a broad sense, the court concluded that the issue here is “whether a man has a fundamental right to procreate via an IVF process that necessarily entails the participation of an unrelated third-party egg donor and a gestational surrogate.” As to that, the court concluded, “History and tradition provide no firm footing – let alone ‘deep rooting’ – for the right that underlies Mr. Morrissey’s claim. To the contrary, IVF, egg donation, and gestational surrogacy are decidedly modern phenomena.  Indeed, not all that long ago, IVF was still (literally) the stuff of science fiction.”  There follows a citation to and quotation from Aldous Huxley’s novel, Brave New World (1932).

Newsom then described the controversial history of alternative reproductive medicine, whose morality has been questioned by some major religions and whose legality has been put into play by a variety of state laws, ranging from regulation to criminalization of surrogacy agreements and laws against their enforcement. “Were we to confer ‘fundamental’ status on Mr. Morrissey’s asserted right to IVF-and-surrogacy-assisted reproduction,” wrote Newsom, “we would ‘to a great extent, place the matter outside the arena of public debate and legislative action.’ Particularly in view of the ethical issues implicated by IVF, egg donation, and gestational surrogacy,” he continued, “as well as the ongoing political dialogue about those issues – and mindful that ‘guideposts for responsible decision-making’ in the fundamental-rights area ‘are scarce and open-ended’ – we decline to take that step.”

The court rejected Morrissey’s invitation to opine as to whether sexual orientation is a “suspect classification” for equal protection purposes, because it found that the challenged statute – and its interpretation here – was neutral regarding sexual orientation. Newsom asserted that the statute “deals with heterosexual and homosexual taxpayers on equal terms.”  The court found that Morrissey could not show that the IRS treated him differently from a heterosexual taxpayer who sought to claim a medical deduction for the expenses of IVF-surrogacy procedures.  “The agency’s disallowance of Mr. Morrissey’s claimed deduction is consistent with longstanding IRS guidance and analogous Tax Court precedent,” he wrote, as “IRS has consistently refused deductions sought by heterosexual taxpayers for IVF-related expenses similar to Mr. Morrissey’s.  An IRS guidance published in 2002 advised that ‘medical expenses paid for a surrogate mother and her unborn child would not qualify for deduction under Sec. 213(a),’” and this was upheld in several Tax Court cases.  He pointed out that such deductions had even been disallowed where the surrogate was impregnated through sexual intercourse with the taxpayer!

The court refused to accept Morrissey’s analogy to the IRS’s allowance of deductions for fertility treatments, saying, “Even if Mr. Morrissey could show that he had been treated differently from similarly situated heterosexual taxpayers, he hasn’t shown that any difference was motivated by an intent to discriminate against him on the basis of his sexual orientation.” In essence, Morrissey’s equal protection claim was more of a disparate impact claim, not a disparate treatment claim, and the constitutional requirement of equal protection has been interpreted by the Supreme Court to apply only to intentional discrimination, not to the discriminatory effects of a tax regime that makes it more expensive for gay couples to have biological offspring than for those straight couples who do it the old-fashioned way.  Although Morrissey was able to come up with an internal IRS document in which an agent made a remark that might be construed as showing discriminatory intent, the court insisted that the official explanation provided by IRS for denying his claim carried no implication of any discriminatory purpose.  “Because there is no evidence that the IRS’s actual decision-makers engaged in any intentional discrimination,” wrote Newsom, “Mr. Morrissey’s equal protection claim fails.”

Morrissey is represented by Richard Donald Euliss of Carlton Fields Jorden Burt PA (Washington, DC) and David Paul Burke, Scott D. Feather, and Gary L. Sasso, of the same firm’s Tampa office.

 

Justice Department Tells 2nd Circuit That Gays Are Not Protected from Discrimination Under Federal Civil Rights Law

Posted on: July 27th, 2017 by Art Leonard No Comments

The U.S. Department of Justice filed a brief on July 26 with the New York-based U.S. Court of Appeals for the 2nd Circuit, weighing in on the question whether Title VII of the Civil Rights Act of 1964 bans discrimination because of sexual orientation.  Not surprisingly, the Trump Administration’s answer is “No.”

 

Title VII lists forbidden grounds for employment discrimination: race or color, religion, sex and national origin. After it went into effect in July 1965, both the Equal Employment Opportunity Commission (EEOC), the agency charged with enforcement of the statute, and the federal courts quickly took the position that people who encountered discrimination because they were gay or transgender could not pursue a claim under this law.  Both the administrative agency and the federal courts held fast to that position until relatively recently.

 

That consensus began to break down early in this century, first in response to discrimination claims by transgender people, as courts and then the EEOC (in 2012) accepted the argument that discriminating against somebody because they were transitioning or had transitioned was actually discrimination because of sex. The rationale they adopted derived from a 1989 decision by the Supreme Court, which recognized that discrimination against people for failing to comply with the employer’s stereotyped view about how people of a particular sex should behave, dress, or otherwise act, was actually discrimination because of their sex.  The 1989 case involved a woman who was denied a partnership in an accounting firm because some of the partners thought she was not sufficiently feminine to meet their image of a “lady partner,” and her immediate boss told her she should get her hair styled and start wearing makeup and jewelry if she wanted to be a partner.

 

By 2015, the EEOC had taken the analysis one step further to cover sexual orientation claims. It recognized that having a same-sex attraction violates gender stereotypes, similarly to the transgender cases, but also drew analogies to cases where courts found that discriminating against an employee for being in an interracial relationship was a form of race discrimination, called associational discrimination.  Further, the EEOC decided that it was really not plausible to distinguish between sexual orientation discrimination and sex discrimination, since both were concerned with treating people differently because of their sex.

 

Until this year, no federal appellate court had accepted these theories, but on April 4, the full bench of the Chicago-based U.S. Court of Appeals for the 7th Circuit became the first federal appeals court to rule that Title VII bans sexual orientation discrimination.  Reversing its prior precedents, the court accepted the EEOC’s analysis in a lawsuit by Kimberly Hively, a lesbian who had been denied a tenure-track position by an Indiana community college.  The college decided not to appeal, taking the position that it had not discriminated at all, so the case was sent back for trial to the district court.

 

Meanwhile, however, the same issue was being litigated in other parts of the country. In the Atlanta-based 11th Circuit, a sexual orientation discrimination claim by Jameka Evans against a Georgia hospital that had been dismissed by the district court was revived by the court of appeals, but on a narrower theory.  In common with several other circuits, the 11th Circuit will accept Title VII claims from gay plaintiffs who allege that they suffered discrimination because of their failure to conform to gender stereotypes.  In this case, while a three-judge panel ruled 2-1 to affirm the trial court’s rejection of the plaintiff’s sexual orientation discrimination claim, the panel sent the case back to the trial court to allow the plaintiff to pursue a sex stereotyping claim.  One member partially dissented, Judge William Pryor (who had been on Trump’s potential Supreme Court list), finding no basis for any Title VII claim by the plaintiff.  Another member of the court agreed to send the case back, but argued that Title VII should be interpreted to cover sexual orientation claims.  A third member found that the panel was bound by circuit precedent to reject the sexual orientation claim, but agreed that the plaintiff should have a chance to pursue a sex stereotype claim.  The 11th Circuit denied a petition to reconsider the Evans case “en banc” (by the full bench) a few weeks ago, and Lambda Legal announced that it will petition the Supreme Court to review the panel decision.  Lambda has until the first week of October to file its petition.

 

Meanwhile, however, within the 2nd Circuit, at least two federal district court judges have recently refused to dismiss sexual orientation claims under Title VII, finding that the circuit’s acceptance of the “associational theory” in a race discrimination case means that the court should accept sexual orientation discrimination claims.  Several other district judges have dismissed such claims, concluding that until the court of appeals explicitly overrules its earlier precedents, the trial judges are bound to follow them.  A few months ago, confronted by petitions for en banc review in three different cases, the Circuit announced that it would reconsider the panel decision in Estate of Donald Zarda v. Altitude Express.

 

In Zarda, the district court had dismissed a Title VII claim but allowed the case to go to trial under New York State’s Human Rights Law, which expressly outlaws sexual orientation discrimination. The jury ruled in favor of the employer, although it is questionable whether the jury was properly instructed about how to weigh the evidence.  The plaintiffs appealed the dismissal of the Title VII claim. A three-judge panel affirmed the district court’s dismissal, while noting that recent developments in the law could justify reconsideration by the full 2nd Circuit bench.  In a case decided by a different three-judge panel at around the same time, Christiansen v. Omnicom, the panel also upheld dismissal of a sexual orientation claim, but sent the case back to the district court for reconsideration as a sex stereotyping claim, and two of the judges joined a concurring opinion suggesting that it was time for the 2nd Circuit to reconsider the sexual orientation issue en banc in an “appropriate case.”  However, after granting en banc review in Zarda, the circuit court denied a petition for en banc review in Christiansen!

 

Briefs were due from the plaintiff’s side in the Zarda appeal during the last week in June. The EEOC, consistent with its interpretation of the statute, filed an amicus (friend of the court) brief in support of the Zarda. (Zarda, a sky-diving instructor, died in a diving accident after starting his discrimination case, so the lawsuit is now being pursued by his executors, seeking money damages for the estate.)    Briefs were due by July 26 from the employer and any amicus parties supporting its position.  After some suspense about what the Trump Administration might do, the Justice Department filed its brief right at the deadline.

 

It is somewhat unusual for the government to file an amicus brief in opposition to a position taken by a federal agency, and it is also unusual for the government to file a brief in a case between private parties – a former employee versus a business – but the federal government has a significant interest in this case, and the politics of EEOC v. DOJ are unusual because of the timing. Until this month, the majority of the EEOC Commissioners have been appointees of President Obama.  They decided the key sexual orientation case two years ago by a vote of 3-2, with the Republican commissioners dissenting.  Upon confirmation of Trump’s appointees to fill some vacancies, control of the EEOC will switch over to Republican hands.  But for now, the EEOC continues to pursue sexual orientation discrimination cases under Title VII, and has even filed some new lawsuits this year despite the change of administrations in January.  On the other hand, the Justice Department reflects the views of the new administration, which are consistent with those expressed by 7th Circuit Judge Diane Sykes (also on Trump’s potential Supreme Court list), who wrote a dissenting opinion in the Hively case.

 

Why does the Trump Administration have a strong interest in a case between private parties? Because Title VII has provisions banning sex discrimination in the federal workforce, and because the president’s political base and the Republicans in Congress stand in opposition to outlawing sexual orientation discrimination.  This is clear from the failure of Republican legislators to co-sponsor the Equality Act, a bill that would amend Title VII to add sexual orientation and gender identity or expression to the statutory list of forbidden grounds of employment discrimination.  A few Republicans were co-sponsors of the Employment Non-Discrimination Act, a narrower bill that was pending in Congress from the mid-1990s through Obama’s first term until it was supplanted by the Equality Act, but not enough to call that bipartisan legislation.  The Employment Non-Discrimination Act came up for floor votes once in each house of Congress but in different sessions of Congress.  On both of those occasions it received few votes from Republican legislators, and their party’s platform never endorsed it.

 

The Justice Department’s brief, noting the EEOC’s position in the case, states that “the EEOC is not speaking for the United States and its position about the scope of Title VII is entitled to no deference beyond its power to persuade.” And, almost needless to say, the Justice Department under the outspokenly anti-gay Jeff Sessions is not persuaded by any of the EEOC’s arguments.  The brief argues that Congress did not intend to ban sexual orientation discrimination in 1964 when it enacted Title VII and that should be the end of the matter.  The failure of Congress to approve any amendment to add sexual orientation to the law is cited as evidence of continuing legislative intent, and the brief argues that only Congress can change the law.  It argues at length that the theories embraced by the EEOC and the 7th Circuit are mistaken interpretations of the Supreme Court’s rulings on sex stereotyping and associational discrimination, and that there is a distinct difference between sex discrimination and sexual orientation discrimination, despite statements by many federal judges that they have difficulty drawing the line between the two.

 

The 2nd Circuit will not be oblivious to the political nature of the government’s opposition.  The concurring opinion in the Christiansen case, written by 2nd Circuit Chief Judge Robert Katzmann, virtually endorsed the EEOC’s interpretation of the statute while calling for the circuit to reconsider its earlier precedents.  And a majority of the judges who will sit on the en banc panel were appointed by Bill Clinton or Barack Obama and have generally taken a more liberal approach to interpreting Title VII.  The circuit’s earlier precedents that are being reconsidered were issued by three-judge panels at a time when the arguments for allowing sexual orientation discrimination claims were not nearly as well developed as they have been in recent years, and the circuit has accepted the associational discrimination theory in a race discrimination case after those earlier cases were decided.  It is likely to see that theory’s applicability here, as the district judges have commented.  However, if the Supreme Court decides to grant Lambda Legal’s petition to review the 11th Circuit case, it is possible that the 2nd Circuit will hold up on deciding the Zarda appeal until the Supreme Court has spoken.  Interesting timing issues will arise this fall.  The 2nd Circuit argument is scheduled for late in September, before the Supreme Court will begin its fall term and start announcing whether it will grant petitions for review filed over the summer.

 

The brief filed by Altitude Express in opposition to the appeal has raised significant jurisdictional arguments that would give the 2nd Circuit a way out of deciding this appeal on the merits, if the judges are so inclined.  That brief argues that when he filed his initial discrimination charge with the EEOC, Donald Zarda expressly disclaimed making a sexual orientation discrimination claim under Title VII, relying instead on the allegation that he suffered discrimination for failing to comply with sex stereotypes.  That was the theory he initially presented in his federal court complaint under Title VII as well, and it was dismissed by the trial judge, who opined that Zarda’s factual allegations were not sufficient for a sex stereotyping claim.  Zarda only pressed a sexual orientation claim under the New York State Human Rights Law.  Thus, Altitude Express argues, he cannot now argue for a sexual orientation discrimination claim under Title VII, because the statute requires that any claim first be presented to the administrative agency, and further that any ruling by the court of appeals on that question would be, in effect, an advisory opinion, as the jury has already ruled against his sexual orientation discrimination claim.  There’s no telling how the 2nd Circuit will respond to these arguments, but one suspects that if they had serious doubts about jurisdiction, they would not have granted the en banc petition.

 

In the meantime, however, it is clear that if the Supreme Court grants review in the 11th Circuit Evans case, the federal government, represented by the Solicitor General, will come into the case against the plaintiff, and by then the EEOC will be in Republican control and will probably not be filing a separate brief.  Once again, the Trump Administration is actively disavowing the LGBT-supportive stance that the candidate claimed during the election last year.  The brief was filed just as Trump was tweeting his decision to bar transgender people from military service, which seemed no coincidence.

Lecture for Investiture as Robert F. Wagner Professor of Labor and Employment Law

Posted on: April 27th, 2017 by Art Leonard No Comments

Arthur S. Leonard, Lecture for Investiture as Robert F. Wagner Professor of Labor and Employment Law, New York Law School, April 26, 2017

A Battle Over Statutory Interpretation: Title VII and Claims of Sexual Orientation and Gender Identity Discrimination

I feel particularly honored to have my name associated with that of United States Senator Robert F. Wagner, Sr., NYLS Class of 1900, a hero of the New Deal whose legislative leadership gave us such important achievements as the National Labor Relations Act – commonly known among labor law practitioners as the Wagner Act – and the Social Security Act — laws that have shaped our nation for generations.   Senator Wagner was an immigrant who made an indelible mark on the United States. I hope that in some small way I have made a contribution that makes this named chair fitting.

I decided to select a topic for this talk that would bring together the two major areas of my teaching and scholarship: labor and employment law, and sexuality law. These intersect in the question whether Title VII of the Civil Rights Act of 1964, which bans employment discrimination against an individual because of his or her sex, will be open to claims by job applicants and workers that they have suffered discrimination because of their sexual orientation or gender identity. We are at a decisive point in the judicial battle over that question, having achieved just weeks ago the breakthrough of our first affirmative appellate ruling on the sexual orientation question, following several years of encouraging developments on the gender identity question.

To understand the significance of this, we have to go back more than half a century, to the period after World War II when the modern American gay rights movement began stirring with the protests of recent military veterans against unequal benefits treatment, with the formation of pioneering organizations like the Mattachine Society in Los Angeles and New York and The Daughters of Bilitis in San Francisco, and with the vital behind-the-scenes work undertaken by gay scholars as the great law reform effort of the Model Penal Code was being launched by the American Law Institute. That postwar period of the late 1940s and 1950s played out alongside the rise of the Civil Rights Movement, for which the passage of the Civil Rights Act of 1964 was a signal achievement.

The early gay rights advocacy groups had their lists of goals, and some kind of protection against discrimination was prominent among them, but that task seemed monumental, at a time when there was no federal statute prohibiting employment discrimination of any kind. Until Illinois adopted the Model Penal Code in 1960, which effectively repealed criminal sanctions for private consensual gay sex, it was a crime in every state; a serious felony with long prison sentences in many. President Dwight Eisenhower issued an executive order shortly after taking office banning the employment of “homosexuals” and “sexual perverts” in the federal civil service. A major immigration law passed during the 1950s for the first time barred homosexuals from immigrating to the U.S. and qualifying for citizenship by labeling us as being “afflicted by psychopathic personality,” making us excludable on medical grounds. The military barred gay people from serving on similar grounds, and many lines of work that required state licensing and determinations of moral fitness systematically excluded LGBT people. To be an ‘openly gay’ lawyer or doctor was virtually unthinkable in the 1950s and on into the 1960s.

When Congress was considering the landmark civil rights bill, first introduced during the Kennedy Administration and shepherded into law by Lyndon Johnson, the idea that lesbians, gay men, bisexuals and transgender people might seek or obtain assistance rather than condemnation from Congress seemed a pipe dream. None of the legislators involved with the bill proposed protecting members of these groups from discrimination. Title VII, the provision of the bill dealing with employment discrimination, was limited in its original form to discrimination because of race or color, religion, or national origin. A floor amendment, introduced by Howard Smith of Virginia, a conservative Southern Democrat who was opposed to the bill, proposed to add “sex” to the prohibited grounds for discrimination. The amendment carried, the bill passed, and it went to the Senate where it was held up by one of the longest filibusters in history – at a time when filibusters involved unbroken floor debate by the opponents of a pending measure, with no vote on the merits until the Chamber was thoroughly exhausted and no opponent could be found to continue speaking. The leadership of the Senate, trying to avoid having the bill bottled up in committees headed by conservative senior Southern senators, had sent the bill direct to the floor with a tight limit on amendments. Thus committee reports that would have provided a source of legislative history on the meaning of “sex” in the bill are missing. The only floor amendment relating to the addition of “sex” to Title VII was to clarify that pay practices that were authorized under the Equal Pay Act, which had been passed the year before, would not be held to violate Title VII. The statute contained no definition of “sex,” and in the early years after its passage, the general view, held by the courts and the Equal Employment Opportunity Commission, was that the ban on sex discrimination simply prohibited employers from treating women worse than men – with little agreement about what that meant. In fact, in an early interpretive foray, the Supreme Court decided that Title VII did not prohibit discrimination against women because they became pregnant. The resulting public outcry inspired Congress to amend the statute to make clear that discrimination against a woman because of pregnancy or childbirth was considered to be discrimination because of sex.

Early attempts by gay or transgender people to pursue discrimination claims under Title VII all failed. The EEOC and the courts agreed that protecting people from discrimination because of their sexual orientation or transgender status was not intended by Congress. They embraced a literalistic “plain language” interpretation of Title VII, including a narrow biological understanding of sex.

But something began to happen as the courts considered a wider variety of sex discrimination claims. It became clear that a simplistic concept of sex would not be adequate to achieve the goal of equality of opportunity in the workplace. Legal theorists had been advancing the concept of a “hostile environment” as a form of discrimination, first focusing on the open hostility that many white workers showed to black, Latino and Asian workers in newly-integrated workplaces. During the 1970s the courts began to expand that concept to women who experienced hostility in formerly all-male workplaces as well. Lower federal courts were divided about whether such “atmospherics” of the workplace could be considered terms or conditions of employment when they didn’t directly involve refusals to hire or differences in pay or work assignments. Finally the Supreme Court broke that deadlock in 1986, holding in Meritor Savings Bank v. Vinson that a woman who experienced workplace hostility so severe that it could be said to affect her terms and conditions of employment would have a sex discrimination claim under Title VII, and subsequent cases clarified that the plaintiff did not have to show a tangible injury, although a finding that working conditions were so intolerable that a reasonable person would quit would clearly meet the test of a hostile environment. Some courts began to extend this reasoning to complaints by men, in situations where male co-workers subjected them to verbal and even physical harassment.

The Court also began to grapple with the problem of sex stereotypes, and how easily employers and co-workers could fall into stereotyped thinking to the disadvantage of minorities and women. Stereotypes about young mothers’ ability to balance work and home obligations, stereotypes about the ability of women to do physically challenging working, stereotypes about female longevity and the costs of retirement plans – all of these issues came before the Court and ultimately led it to expand the concept of sex discrimination more broadly than legislators of the mid-1960s might have imagined.

The key stereotyping case for building a theory of protection for sexual minorities was decided in 1989 – Price Waterhouse v. Hopkins. Ann Hopkins’ bid for partnership was denied because some partners of the firm considered her inadequately feminine. They embraced a stereotype about how a woman partner was supposed to look and behave. Hopkins, with her loud and abrasive manner and appearance, failed to conform to that stereotype. Communicating the firm’s decision to pass over her partnership application, the head of her office told her she could improve her chances for the next round by dressing more femininely, walking more femininely, toning down her speech, wearing make-up and jewelry, having her hair styled. Her substantial contributions to the firm and her leadership in generating new business counted for little, when decision-makers decided she was inadequately feminine to meet their expectations. In an opinion by Justice William J. Brennan, Jr., the Court accepted Hopkins’ argument that allowing such considerations to affect the partnership decision could be evidence of a prohibited discriminatory motivation under Title VII. The Court’s opinion embraced the idea that discrimination because of “gender,” not just discrimination because of biological sex, came within the scope of Title VII’s prohibition. The statutory policy included wiping away gender stereotypes that created barriers to equal opportunity for women in the workplace.

Although Ann Hopkins was not a lesbian and nothing was said about homosexuality in her case, the implications of the ruling became obvious over time as federal courts dealt with a variety of stereotyping claims. A person who suffered discrimination because she did not appear or act the way people expected a woman to appear or act was protected, and that sounded to lots of people like a description of discrimination against transgender people and some – but perhaps not all – lesbians, gay men and bisexuals. The argument seemed particularly strong when an employer discriminated against a person who was hired appearing and acting as a man and then began to transition to living life as a woman.

At the same time, legal academics had begun to publish theoretical arguments supporting the idea that discrimination against gay people was a form of sex discrimination. Among the earliest were Professor Sylvia Law of New York University, whose 1988 article in the Wisconsin Law Review, titled “Homosexuality and the Social Meaning of Gender,” suggested that anti-gay discrimination was about “preserving traditional concepts of masculinity and femininity. Law’s pioneering work was quickly followed by the first of many articles by Andrew Koppelman, first in a student note he published in the Yale Law Journal in 1988 titled “The Miscegenation Analogy: Sodomy Law as Sex Discrimination,” later in his 1994 article in the New York University Law Review titled “Why Discrimination Against Lesbians and Gay Men is Sex Discrimination.” Both Koppelman, now a professor at Northwestern University, and Law proposed theoretical arguments for treating anti-gay discrimination as sex discrimination.

Seizing upon the Price Waterhouse precedent, transgender people and gay people began to succeed in court during the 1990s by arguing that their failure to conform to gender stereotypes was the reason they were denied hiring or continued employment, desirable assignments or promotions. A strange dynamic began to grow in the courts, as judges repeated, over and over again, that Title VII did not prohibit discrimination because of sexual orientation or gender identity, as such, but that it did prohibit discrimination against a person because of his or her failure to conform to gender stereotypes and expectations, regardless of the plaintiff’s sexual orientation. Many of the courts insisted, however, that there was one gender stereotype that could not be the basis of a Title VII claim – that men should be attracted only to women, and women should be attracted only to men. To allow a plaintiff to assert such a claim would dissolve the line that courts were trying to preserve between sex stereotyping claims and sexual orientation or gender identity discrimination claims. Decades of past precedents stood in the way of acknowledging the unworkability of that line.

Ten years after the Price Waterhouse decision, the Supreme Court decided another sex discrimination case, Oncale v. Sundowner Offshore Services, with an opinion by Justice Antonin Scalia that helped to fuel the broadening interpretation of Title VII. The 5th Circuit Court of Appeals had ruled that a man who is subjected to workplace harassment of a sexual nature by other men could not bring a hostile environment sex discrimination claim under Title VII. The court of appeals reasoned that Congress intended in 1964 to prohibit discrimination against women because they were women or men because they were men, and that such a limited intent could not encompass claims of same-sex harassment, which would be beyond the expectations of the legislators who passed that law. In reversing this ruling, Justice Scalia, who was generally skeptical about the use of legislative history to interpret statutes, wrote for the Court that the interpretation of Title VII was not restricted to the intentions of the 1964 Congress. While conceding that same-sex harassment was not one of the “evils” that Congress intended to attack by passing Title VII, he wrote:

“Statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed. Title VII prohibits discrimination because of sex in employment. This must extend to sex-based discrimination of any kind that meets the statutory requirements.”

Thus, as our collective, societal understanding of sex, gender, sexuality, identity and orientation broadens, our concept of sex discrimination as prohibited by Title VII also broadens. With the combined force of Price Waterhouse and Oncale, some federal courts began to push the boundaries even further during the first decade of the 21st century.

By the time the Equal Employment Opportunity Commission ruled in 2012 in Macy v. Holder, a federal sector sex discrimination case, that a transgender plaintiff could pursue a Title VII claim against a division of the Justice Department, its opinion could cite a multitude of federal court decisions in support of that conclusion, including two Title VII decisions by the 6th Circuit Court of Appeals involving public safety workers who were transitioning, and a 2011 ruling by the 11th Circuit Court of Appeals that a Georgia state agency’s discrimination against an employee because she was transitioning violated the Equal Protection Clause as sex discrimination. There were also federal appellate rulings to similar effect under the Equal Credit Opportunity Act and the Violence against Women Act, as well as numerous trial court rulings under Title VII. So the EEOC was following the trend, not necessarily leading the parade, when it found that discrimination against a person because of their gender identity was a form of sex discrimination.

After the Supreme Court’s landmark ruling in Lawrence v. Texas in 2003, striking down a state sodomy law under the 14th Amendment, and further rulings in 2013 and 2015 in the Windsor and Obergefell cases, leading to a national right to marry for same-sex couples, the persistence by many courts in asserting that Title VII did not prohibit sexual orientation discrimination appeared increasingly archaic. Just weeks after the Obergefell decision, the EEOC issued another landmark ruling in July 2015, David Baldwin v. Anthony Foxx, reversing half a century of EEOC precedent and holding that sexual orientation discrimination claims were “necessarily” sex discrimination claims covered by Title VII. The Commission ruled that a gay air traffic controller could bring a Title VII claim against the Department of Transportation, challenging its refusal to hire him for a full-time position at the Miami air traffic control center because of his sexual orientation.

Building on the Price Waterhouse, Oncale and Macy decisions, the EEOC embraced several alternative theories to support this ruling. One was the now well-established proposition that an employer may not rely on “sex-based considerations” or “take gender into account” when making employment decisions, unless sex was a bona fide occupational qualification – a narrow statutory exception that is rarely relevant to a sexual orientation or gender identity case.

“Discrimination on the basis of sexual orientation is premised on sex-based preferences, assumptions, expectations, stereotypes, or norms,” wrote the EEOC. “Sexual orientation as a concept cannot be defined or understood without reference to sex. Sexual orientation is inseparable from and inescapably linked to sex and, therefore, allegations of sexual orientation discrimination involve sex-based considerations.” By the summer of 2015, the agency was able to cite several federal trial court decisions applying these concepts in particular cases.

Another theory was based on the associational discrimination theory. Courts had increasingly accepted the argument that discrimination against a person because he or she was in an interracial relationship was discrimination because of race. The analogy was irresistible: Discriminating against somebody because they are in a same-sex relationship must be sex discrimination, because it involved taking the employee’s sex into account. Denying a job because a man is partnered with a man rather than with a woman means that his sex, as well as his partner’s sex, was taken into account by the employer in making the decision.

Finally, the Commission embraced the stereotyping theory that some courts had refused to fully embrace: that sexual orientation discrimination is sex discrimination because it necessarily involves discrimination based on gender stereotypes, not just those involving appearance, mannerisms, grooming, or speech, but also stereotypes about appropriate sexual attractions. Quoting a Massachusetts federal trial court ruling, the agency wrote, “Sexual orientation discrimination and harassment are often, if not always, motivated by a desire to enforce heterosexually defined gender norms. . . The harasser may discriminate against an openly gay co-worker, or a co-worker that he perceives to be gay, whether effeminate or not, because he thinks, ‘real’ men should date women, and not other men.” Professor Law’s theoretical proposition of 1988 was now surfacing in court and agency rulings a quarter century later.

The EEOC also rejected the view that adopting this expanded definition of sex discrimination required new congressional action, pointing out that the courts had been expanding the definition of sex discrimination under Title VII continually since the 1970s, with minimal intervention or assistance from Congress.

Since 2015 the issue of sexual orientation discrimination under Title VII has risen to the level of the circuit courts of appeals. In most of the circuits, there are precedents dating back decades holding that sexual orientation claims may not be litigated under Title VII. These precedents are softened in some circuits that have accept discrimination claims from gay men or lesbians who plausibly asserted that their visible departure from gender stereotypes provoked discrimination against them. But many of these appeals courts have strained to draw a line between the former and the latter, and have rejected stereotyping claims where they perceived them as attempts to “bootstrap” a sexual orientation claim into Title VII territory.

Ironically, one judge who emphatically rejected such a case several years ago with the bootstrapping objection, Richard Posner of the 7th Circuit, is the author of a concurring opinion in this new round of circuit court rulings in which he argues that it is legitimate for federal courts to “update” statutes without waiting for Congress in order to bring them into line with current social trends. This was part of the 7th Circuit’s en banc ruling in Kimberly Hively v. Ivy Tech Community College, the April 4, 2017, decision that is the first by a federal appeals court to embrace all aspects of the EEOC’s Baldwin decision and hold that a lesbian could pursue a sexual orientation claim under Title VII. Posner’s argument echoes one made decades ago by Guido Calabresi, then a professor at Yale, now a judge on the 2nd Circuit, in a series of lectures published as a book titled “A Common Law for the Age of Statutes,” in which he argued that legislative inertia would justify courts in updating old statutes to meet contemporary needs. Although Posner did not cite Calabresi’s book, his argument is much the same. He quoted both Justice Scalia’s statement from Oncale and an earlier iteration of similar sentiments in an opinion by Justice Oliver Wendell Holmes from 1920, in which Holmes wrote: “The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago.”

The federal circuit courts follow the rule that when a three-judge panel of the circuit interprets a statute, it creates a binding circuit precedent which can be reversed only by the full bench of the court in an en banc ruling, or by the Supreme Court, or by Congress changing the statute. The Hively ruling reversed a three-judge panel decision that had rejected the plaintiff’s Title VII claim based on prior circuit precedents. The vote was 8-3. Incidentally, 5 of the judges in the 8-member majority were appointees of Republican presidents. The employer in that case quickly announced that it would not seek Supreme Court review, but this ruling creates a split among the circuit courts, so it is only a matter of time before the Supreme Court receives a petition asking for a definitive interpretation of Title VII on this question.

The 7th Circuit opinion by Chief Judge Diane Wood accepted all of the EEOC’s theories from the Baldwin decision. Judge Wood concluded that “it would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation.’” “We hold that a person who alleges that she experienced employment discrimination on the basis of her sexual orientation has put forth a case of sex discrimination for Title VII purposes.”

Dissenting Judge Diane Sykes criticized the majority for deploying “a judge-empowering, common-law decision method that leaves a great deal of room for judicial discretion.” Here the battle is joined. For the majority, it is appropriate to trace the development of case law over decades, treating the concept of sex discrimination as evolving. For Judge Posner, concurring, it is legitimate for the court to set aside the pretense of ordinary interpretation and to “update” an old statute to reflect contemporary understandings. And for Judge Sykes, these are both illegitimate because it violates the division of authority between the legislature and the courts to adopt an “interpretation” that would be outside the understanding of the legislators who enacted the statute.

Now the scenario is playing out in other circuits. In recent weeks, the Atlanta-based 11th Circuit and the New York-based 2nd Circuit have issued panel rulings refusing to allow sexual orientation discrimination claims under Title VII. The panels did not consider the issue afresh and decided to reaffirm the old rulings on the merits, but rather asserted that they were powerless to do so because of the existing circuit precedents. In both of the cases decided in March, Evans v. Georgia Regional Hospital and Christiansen v. Omnicom Group, the panels sent the cases back to the trial court to see whether they could be litigated as sex stereotyping cases instead of sexual orientation cases. But one judge dissented in the 11th Circuit, arguing that an old pre-Price Waterhouse precedent should not longer be treated as binding. The 2nd Circuit panel rejected the trial judge’s conclusion that because the gay plaintiff’s complaint included evidence that his treatment was tainted by homophobia he could not assert a sex stereotyping claim, and two members of the panel wrote a concurring opinion virtually accepting the EEOC’s view of the matter and suggesting that the circuit should reconsider the issue en banc.. In both cases, the panels took the position that sex stereotyping claims could be evaluated without reference to the sexual orientation of the plaintiff. And, in both of these cases, lawyers for the plaintiffs are asking the circuits to convene en banc benches to reconsider the issue, as a preliminary to seeking possible review in the Supreme Court. A different 2nd Circuit panel has also issued a ruling where sex stereotyping of the sort that is actionable in the 2nd Circuit is not part of the case, and counsel in that case is also filing a petition for en banc review.

One or more of these petitions is likely to be granted. While we may see more en banc rulings in favor of allowing sexual orientation discrimination claims, at some point a new circuit split may develop, leading inevitably to the Supreme Court. Or the issue could get to the Supreme Court by an employer seeking further review, since older rulings in other circuits still present the kind of circuit splits that the Supreme Court tries to resolve.

That leads to the highly speculative game of handicapping potential Supreme Court rulings. Neil Gorsuch’s confirmation restores the ideological balance that existed before Justice Scalia’s death. The Court as then constituted decided the historic same-sex marriage cases, Windsor and Obergefell, with Justice Kennedy, a Republican appointee, writing for the Court in both cases, as well as in earlier gay rights victories, Romer v. Evans and Lawrence v. Texas. These opinions suggest a degree of empathy for gay litigants that might lead Kennedy to embrace an expansive interpretation of Title VII. He is part of a generation of appellate judges appointed by Ronald Reagan during the 1980s who made up half of the majority in the recent 7th Circuit ruling: Richard Posner, Frank Easterbrook, Joel Flaum, and Kenneth Ripple. Another member of that majority, Ilana Rovner, was appointed by Reagan’s successor, George H.W. Bush. This line-up underlies optimism that Kennedy might join with the Clinton and Obama appointees on the Supreme Court to produce a five-judge majority to embrace the EEOC’s interpretation. Such optimism may also draw on Kennedy’s decisive rejection of the argument that legal rules are frozen at the time of their adoption and not susceptible to new interpretations in response to evolving social understandings. This was the underlying theme of his opinions in the four major gay rights decisions.

Since the 1970s supporters of gay rights have introduced bills in Congress to amend the federal civil rights laws to provide explicit protection for LGBT people. None of those attempts has succeeded to date. If the judicial battle reaches a happy conclusion, those efforts might be rendered unnecessary, although there is always a danger in statutory law of Congress overruling through amendment, but that seems unlikely unless the Republicans attain a filibuster-proof majority in the Senate.

On that optimistic note, I conclude with thanks for your attention, and I am happy to answer questions now.

 

11th Circuit Panel Splinters Over Lesbian’s Appeal of Title VII Dismissal

Posted on: March 12th, 2017 by Art Leonard No Comments

A three-judge panel of the Atlanta-based U.S. Court of Appeals for the 11th Circuit issued a divided ruling on March 10 holding that a lesbian plaintiff suing for discrimination under Title VII of the Civil Rights Act of 1964 could file an amended complaint alleging that she suffered discrimination because of sex stereotyping, but upholding the district court’s dismissal of her claim that sexual orientation discrimination violates the statute.  A dissenting judge, agreeing with the Equal Employment Opportunity Commission (EEOC), which submitted an amicus brief in the case, and Lambda Legal, which was appointed to represent the plaintiff on appeal, argued that the plaintiff should be allowed to pursue her sexual orientation discrimination claim as well.  Lambda Legal, representing the appellant, immediately announced that it would petition for rehearing “en banc” before the entire 11th Circuit bench.

Unsurprisingly, the judges rejecting the sexual orientation claim, Circuit Judge William Pryor and Florida District Judge Jose Martinez, were appointed by President George W. Bush.  The dissenter, Circuit Judge Robin Rosenbaum, was appointed by President Barack Obama.

This case is one of appeals recently argued in three different federal circuits presenting the question whether sexual orientation discrimination claims are covered as “discrimination because of sex” under Title VII.  The Chicago-based 7th Circuit heard argument “en banc” on November 30, and the New York-based 2nd Circuit heard three-judge panel argument in two different appeals in January. So far, no federal circuit court has ruled favorably on such a claim, although many have ruled that gay plaintiffs can sue under Title VII on gender-based sex stereotyping claims, depending on their factual allegations.  There are older court of appeals precedents in most circuits rejecting sexual orientation discrimination claims, as such, under Title VII.  The Supreme Court has never directly ruled on the question.

In this case, Evans v. Georgia Regional Hospital, plaintiff Jameka Evans claimed that she was discriminated against in her position as a security officer at the hospital because of both gender non-conformity and sexual orientation.  Evans is a “butch” lesbian who claims she was discriminated against because she failed to carry herself in a “traditional womanly manner” and that “it was ‘evident’ that she identified with the male gender, because of how she presented herself – ‘(male uniform, low male haircut, shoes, etc.’),” wrote Judge Martinez.

She filed her case in federal district court in Savanah, Georgia, without a lawyer (“pro se”). The district judge, J. Randal Hall, referred her case to a magistrate judge to rule on procedural issues and “screen” the claim, as is usually done with “pro se” cases.  Magistrate Judge George R. Smith found procedural problems and, applying old circuit precedent, held that the claim of sexual orientation discrimination could not be brought under Title VII.  Smith recommended dismissal of the case. Lambda Legal submitted an amicus brief, urging Judge Hall to reject the Magistrate’s recommendation, but Hall dismissed without reference to Lambda’s arguments.  However, Hall then appointed Lambda to represent Evans on appeal to the 11th Circuit, and Gregory Nevins from Lambda’s Atlanta office argued the appeal.  The hospital never responded to the complaint and was not represented at the one-sided argument before the court of appeals.

At the heart of this appeal and of the other pending cases on the same question is the effect of two Supreme Court rulings, Price Waterhouse v. Hopkins and Oncale v. Sundowner Offshore Services. In the first of these, the Court ruled that an employer’s denial of a partnership to a woman because of her failure to conform to the employer’s stereotyped view of how women should behave and present themselves was evidence of discrimination “because of sex” in violation of Title VII.  In the second, the Supreme Court overturned the lower court’s dismissal of a same-sex harassment case in a unanimous opinion authored by Justice Antonin Scalia holding that the interpretation of discrimination “because of sex” was not limited based on the intentions of Congress when it enacted the statute in 1964.  Scalia commented that “comparable evils” to those that Congress sought to address might be covered by the statute, and that we are governed by the language of our statutes as adopted by Congress, not by the presumed intentions expressed by individual legislators or committees as reflected in the legislative history.  Thus, a claim by a man that he was subjected to sexual harassment by male co-workers could be dealt with under Title VII, even if members of Congress did not anticipate or intend that such cases could be brought under Title VII.

LGBT rights advocates have used these two Supreme Court cases to argue that gay and transgender plaintiffs who suffer discrimination because of their sexual orientation or gender identity should be able to bring sex discrimination claims under Title VII. Sex stereotyping is arguably present to some extent in all such cases and, at a more fundamental level, anti-gay and anti-trans discrimination is “necessarily” because of sex.  These arguments persuaded the EEOC during the Obama Administration, resulting in administrative rulings in cases raised by LGBT federal employees, and have also persuaded some federal district judges.  Several federal courts of appeals have accepted the sex stereotyping argument, but only to a limited extent, according to the extensive concurring opinion in Evans’s case by Judge Pryor.  So far, no federal circuit court has accepted the argument that an otherwise gender-conforming gay person can bring a sex discrimination claim under Title VII.

Judge Martinez premised his vote to reject the sexual orientation discrimination claim on a 1979 decision by the 5th Circuit, Blum v. Gulf Oil Corporation, 597 F.2d 936, in which that court said that “discharge for homosexuality is not prohibited by Title VII” as an alternative basis for its ruling.  Effective on September 30, 1981, a statute divided the old 5th Circuit in half, assigning Georgia to the newly-created 11th Circuit. At that time, the 11th Circuit ruled that former 5th Circuit cases would be treated as precedent in the new 11th Circuit, so this case counts as a binding circuit precedent.  Lambda argued that the 1979 ruling is no longer valid in light of the 1989 Price Waterhouse decision and the 1999 Oncale decision.  Martinez and Pryor both rejected that argument, but dissenting Judge Rosenbaum embraced it.  At the oral argument, Judge Pryor had observed that in light of the Blum precedent, the three judge panel most likely could not rule in favor of Evans on this point, as only an en banc panel could reverse circuit precedents.

As to the sex stereotyping claim, Martinez asserted that Evans’ pro se complaint “failed to plead facts sufficient to create a plausible inference that she suffered discrimination. In other words, Evans did not provide enough factual matter to plausibly suggest that her decision to present herself in a masculine manner led to the alleged adverse employment actions.”  However, he wrote, it was inappropriate for the district judge to dismiss her case outright rather than allowing her to file an amended complaint, since her theory of sex stereotyping discrimination was a theory accepted in the 11th Circuit and it was possible that, in light of the court’s discussion of her claim, she might be able to meet these pleading deficiencies in an amended complaint.  It is customary in pro se cases to allow the plaintiff to file an amended complaint if she is asserting a claim under a valid legal theory and there is a possibility that a better framed complaint could survive screening.

Pryor’s concurring opinion agreed that the magistrate erred in asserting that a sex stereotyping argument by a lesbian plaintiff was just “another way to claim discrimination based on sexual orientation,” and thus Evans should get a second chance to frame a complaint that might survive review. However, he argued at length to refute the arguments by the EEOC and Judge Rosenbaum that sexual orientation discrimination claims were “necessarily” sex discrimination claims.  Pryor insisted on a strict distinction between “status” and “conduct,” arguing that sex stereotyping claims were tied to the plaintiff’s conduct in failing to conform to gender stereotypes.  Thus, a claim of sexual orientation discrimination not accompanied by factual allegations about the plaintiff’s gender non-conformity fell short, in his view, of coming within the compass of discrimination “because of sex.”  He was not willing to accept the argument that being sexually attracted to members of the same-sex would suffice to constitute non-conformity with sexual stereotypes.

Judge Rosenbaum took a diametrically opposite approach, embracing a theoretical description of how Price Waterhouse had changed Title VII law by extending prior sex stereotyping cases to adopt a “prescriptive stereotyping” model. In prior cases, the Supreme Court had condemned “ascriptive stereotyping,” situations where an employer discriminated against a class of employees because of a stereotype about the class.  For example, an employer required women to contribute more to its pension plan than men in order to get the same monthly benefits upon retirement, based on the stereotype that women live longer than men so it would all “even out” in the end.  The Supreme Court condemned this practice as sex discrimination, finding that the statute protects individuals from being treated based on class-based stereotypes.  In Price Waterhouse, the Court for the first time condemned “prescriptive stereotyping,” where an employer discriminated against an employee because she failed to conform to a sexual stereotype, presenting a demeanor which was not traditionally feminine.

Applying this to the sexual orientation case, Rosenbaum accepted the argument that in such cases the employer was discriminating because the employee violated the stereotypical view that men are supposed to be attracted to women, not to men, and vice versa. Furthermore, she found that it was clearly sex discrimination to treat a woman differently based on whether she was attracted to men or women.

Judge Rosenbaum argued that Pryor’s opinion was “at war” with his vote a decade ago that allowed a sex discrimination claim under the Equal Protection Clause by a transgender employee of the Georgia legislature. Indeed, Pryor’s vote in the former case, Glenn v. Brumby, had given the plaintiff hope in this case that the panel might rule in her favor.  Pryor devoted considerable effort in his concurring opinion to explaining why he found this case to be different, once again relying on the “status” and “conduct” distinction.  Cross-dressing and announcing plans to transition were “conduct,” in his view, while having a sexual orientation was “status.”  He argued that sex stereotyping theory was concerned with conduct, not status, in its focus on gender non-conformity.

The sharp division among the judges may lead the 11th Circuit to agree to hear the case en banc, especially noting that one member of the panel was a district judge.  The federal judiciary is so short-handed as a result of the Republican-controlled Senate’s stonewalling of President Obama’s court of appeals nominees during his second term that it has become increasingly common for some particularly short-staffed circuits to fill-out three-judge panels by “designating” district court judges to provide the third member to make up a panel.  These district judges do not participate if the case is reargued en banc.  Furthermore, with the 7th Circuit having held en banc argument on this question recently, it seems clear that many federal judges believe it is time to reconsider the issue.  Meanwhile, decisions from the 7th and 2nd Circuits are eagerly awaited, especially if they create a “circuit split” that would entice the Supreme Court to agree to take up the issue.

Retroactivity of Marriage Rights Continues to Occupy Courts

Posted on: May 17th, 2016 by Art Leonard No Comments

In two recent decisions courts have had to deal with the question whether marriage rights for same-sex couples, declared by the U.S. Supreme Court on June 26, 2015, should be projected backwards in time in particular cases involving the death of gay men and the rights of their surviving partners. In one, the surviving partner received the spousal benefit he sought, proceeds from a wrongful death lawsuit, although the court ended up not ruling directly on the retroactivity claim.  In the other, the surviving partner was unsuccessful because his partner died seven months after same-sex marriage became available in their state, New Jersey, but just days before they were scheduled to marry.

First, the hard-luck timing story from New Jersey: Rucksapol Jiwungkul and Maurice R. Connolly, Jr., began their relationship in 1983 and it continued until Connolly’s death on June 2, 2014.  On July 10, 2004, the date that New Jersey’s Domestic Partnership Law went into effect, the men registered as domestic partners.  At that time a lawsuit was pending in the New Jersey courts seeking marriage equality, but the plaintiffs in that case had suffered an initial setback before the Superior Court and the case was on appeal.

On October 25, 2006, the New Jersey Supreme Court ruled in Lewis v. Harris that same-sex couples were entitled to have some form of legal recognition from the state that would provide all the rights and benefits of marriage, but that the state could meet this constitutional requirement by enacting a civil union law if the legislature was not inclined to simply amend the marriage law to let same-sex couples marry. The legislature took the civil union route, and that statute went into effect on February 19, 2007.

Jiwungkul and Connolly decided not to register as civil union partners, and they were very public about their decision. Connolly was quoted in an article in The Philadelphia Inquirer on December 8, 2006, shortly after the legislature passed the Civil Union Law, describing himself as “furious” that the legislature did not opt for marriage, and explaining that they decided not to enter into a civil union because it “was not equivalent to marriage.”

After the U.S. Supreme Court ruled on June 26, 2013, in United States v. Windsor, that the Defense of Marriage Act was unconstitutional, a lawsuit previously filed by Garden State Equality seeking to reopen the marriage equality question in New Jersey suddenly sprang to life. Within months the court had ruled that in light of Windsor, same-sex couples in New Jersey should be entitled to marry. When the New Jersey Supreme Court upheld the trial judge’s refusal to stay her ruling, Governor Chris Christie dropped the state’s appeal and the ruling went into effect on October 21, 2013.

Jiwungkul and Connolly sprang into action, starting to make arrangement for a June wedding. In anticipation of the wedding, they applied for a marriage license on May 27, 2014.  Their application stated that the wedding would take place on June 8, and the license was issued.  Tragically, Connolly died suddenly and unexpectedly on June 2, leaving Jiwungkul as his surviving domestic partner and executor and principal beneficiary of his estate.

Connolly’s bequests to Jiwungkul were not subject to the New Jersey transfer inheritance tax, because the Domestic Partnership Law specifically exempts surviving domestic partners from having to pay a tax on an inheritance from their domestic partner. But Connolly’s estate was required to pay New Jersey estate tax of $101,041.00.  Jiwungkul filed the appropriate estate tax return but then filed an amended return claiming the spousal deduction, requesting a refund of the entire $101,041.00.

The New Jersey Department of Taxation rejected his refund claim, pointing out that the Domestic Partnership Law did not provide the marital deduction for estate tax purposes for domestic partners. Had the men registered for a state civil union, the marital deduction would have been available, since the New Jersey Supreme Court’s decision in Lewis v. Harris required that state civil unions provide the same rights as marriage.  And, of course, had the men married promptly after the Garden State Equality decision went into effect, as many N.J. domestic partners and civil union partners did, Jiwungkul would have been a surviving spouse, so the estate could claim the spousal deduction, which would have wipe out any obligation to pay state estate tax.

Jiwungkul filed suit in the New Jersey Tax Court, challenging the denial of his refund, claiming that as a result of the developments in judicial decisions, it would be appropriate to treat him as a surviving spouse and allow the marital deduction to the estate. The Presiding Judge of the Tax Court, Patrick DeAlmeida, denied his claim.  Jiwungkul v. Director, Division of Taxation, 2016 N.J. Tax Unpub. LEXIS 28 (May 11, 2016).

DeAlmeida pointed out that the men could have entered into a Civil Union, qualifying their estates for the spousal deduction, as early as February 2007, but they made a conscious choice not to do so. Furthermore, they could have married beginning on October 21, 2013.  “There is longstanding policy in this State,” he wrote, “of not according statutory rights to couples who have not fulfilled the statutory requirements for a government-sanctioned relationship.  He rejected the argument that because the right to marry has the status of a constitutional right, the Domestic Partnership Law of 2004 should be retroactively interpreted to provide the spousal deduction for estates of same-sex partners whose only legally recognized status at the time of death was being domestic partners.

This couple, however, delayed marrying. “They are, of course, free to order their affairs in any manner they see fit,” wrote the judge.  “They must, however, accept the legal consequences, including the ramifications of the tax laws, of their decisions.  Had they entered into a civil union during the many years it was available to them, or married sooner after the decision in Garden State Equality, decedent’s unexpected passing would not have resulted in the tax liability contested in this case.  Plaintiff and decedent suffered from a tragic turn of events, the tax consequences of which could have been avoided.”

This ruling can be appealed to the Appellate Division of the Superior Court. Jiwungkul, as executor of Connolly’s estate, is represented by Robyne D. LaGrotta of Parsippany.

The other case, from Alabama, turned out more favorably for the surviving partner. Paul Hard and David Fancher, Alabama residents, went to Massachusetts to marry on May 20, 2011.  At the time, Alabama did not recognize their marriage. Shortly after they returned home, Fancher died when the car he was driving on the interstate collided with a United Parcel Service Tractor Trailor.  Because Alabama did not recognize the marriage, the death certificate stated that he was “never married” and Hard was not listed as his surviving spouse.  The court appointed an administrator for Fancher’s estate, who filed a wrongful death lawsuit against United Parcel.  Under Alabama law, estates have to distribute the proceeds from wrongful death actions to the legal heirs of the decedent, according to the intestate succession statute.  If a person is survived by a spouse but no children, but there is at least one surviving parent, the surviving spouse receives the first $100,000 plus one half of the balance, the other half of the balance going to surviving parents.  If there is no surviving spouse but there are surviving parents, the proceeds go to the surviving parents.  Fancher was survived by his mother, Pat Fancher.

While the wrongful death case was pending, Hard filed a lawsuit against Alabama officials and the administrator of Fancher’s estate. He sought three things: a declaration that Alabama’s refusal to recognize his marriage to Fancher violated the constitution, an injunction requiring Alabama to issue a new death certificate taking account of the marriage, and an injunction ordering the estate to distribute to him the spousal share of any recovering in the wrongful death suit.  Pat Fancher filed a motion to intervene in the case, arguing that she was entitled to the full proceeds of any wrongful death action because Alabama did not recognizing the marriage so there was no “surviving spouse” as far as Alabama was concerned.  Chief U.S. District Judge William Keith Watkins let her intervene.  The administrator of Fancher’s estate agreed to set aside the spousal share of any amount that would be recovered until such time as this lawsuit was resolved.

A settlement was reached with United Parcel several months later, and the estate administrator paid Pat Fancher the portion of the proceeds that she would be entitled to receive even if the marriage was recognized (half the balance over $100,000), putting the rest, about half a million dollars, in a trust account pending the resolution of Hard’s case. Meanwhile, litigation was proceeding separately challenging Alabama’s refusal to recognize same-sex marriages, and U.S. District Judge Callie Granade ruled in the Searcy case on January 23, 2015, that the ban was unconstitutional.  When she refused to stay her ruling, the Alabama State Registrar of Vital Statistics issued a new death certificate recognizing the Held-Fancher marriage, and the judge in Held’s case allowed the administrator of the state to intervene to pay over the balance of the trust money into the court’s registry.  Judge Watkins then stayed the case, pending the U.S. Supreme Court’s decision in Obergefell v. Hodges, which was expected by the end of June.

When the Supreme Court ruled, Hard moved to lift the stay and disburse the remaining money to him. At the same time, Alabama Attorney General moved to have the case dismissed as moot, arguing that because he was required to recognize the marriage under Judge Granade’s injunction, the Supreme Court had struck down the ban on same-sex marriage, and Hard had obtained the substitute death certificate, there was nothing left for the court to decide and the case was moot.  The court granted Hard’s motion to release the funds to him and dismissed the case on July 15.

Pat Fancher quickly filed a motion to set aside the dismissal order and block payment of the funds to Hard. She argued that unless the Obergefell case applied retroactively, the amended death certificate was invalid, because at the time her son died he was not legally married to Hard under the Alabama law then in effect.  The district court denied the motion and ordered the clerk court to distribute the money, about $500,000, to Hard.  Pat Fancher appealed.

The 11th Circuit Court of Appeals denied her appeal on April 20, in Hard v. Attorney General, 2016 WL 1579015.  The court pointedly refrained from deciding whether Obergefell applies retroactively.  Rather, it focused on the failure of Fancher’s motion to argue that the case was not moot, which would be the only valid ground to challenge the trial court’s decision to dismiss the case.  The 11th Circuit pointed out that as Hard had obtained all the relief he was seeking, there was no “live controversy” before the district court.

As to Fancher’s challenge to the district court’s order to the clerk to pay the remaining money to Hard, the court said, “We conclude there was no abuse of discretion because the district court properly applied Alabama law of intestate succession pertaining to surviving spouses. Simply put, once the State of Alabama recognized Hard as the surviving spouse and the district court dismissed the case as moot, the court committed no abuse of discretion by disbursing the funds accordingly.”

Held is represented by Montgomery attorneys David Dinielli, Scott Daniel McCoy and Samuel Eugene Wolfe. Pat Fancher is represented by Matthew Thomas Kidd, also of Montgomery.   The 11th Circuit opinion was issued “per curiam” by a panel consisting of Judges Adalberto Jordan, Julie Carnes and Jill Pryor.

Surprising Development in Florida Marriage Equality Case

Posted on: December 3rd, 2014 by Art Leonard No Comments

When U.S. District Judge Robert Hinkle ruled on August 21 in Brenner v. Armstrong and Grimsley v. Armstrong that Florida’s ban on same-sex marriage was unconstitutional, he stayed his preliminary injunction until January 5, 2015, to give the state a chance to appeal to the 11th Circuit.  He indicated that if the state wanted to have the decision stayed longer until the Court of Appeals could decide on the merits, it should ask the Court of Appeals for a longer stay.  The state filed its notice of appeal, accompanied by a Motion to Extend Stay of Preliminary Injunction Pending Appeal and for Expedited Treatment of This Motion.”

This afternoon, December 3, a three-judge panel of the 11th Circuit issued a terse order, as follows:  “Appellants’ request for expedited review of the Motion is granted.  Having reviewed and fully considered the Motion, the parties’ briefs, and the orders issued by the District Court in the proceedings below, the Court hereby denies Appellants’ Motion.  The stay of preliminary injunctions entered by the District Court expires at the end of the day on January 5, 2015.”

This means, implicitly, that the 11th Circuit panel has concluded that the factors normally considered in deciding whether to stay a ruling pending appeal do not balance out in support of the state’s motion.  And, of course, the first and most important factor is whether the Appellant is likely to prevail on the merits of its appeal.  They would also consider the harms to the plaintiffs if the district court’s order is stayed further, and the harms to the state if the injunction is allowed to go into effect.  And, of course, they would ask whether such harms, if any, are irreparable by after-the-fact money damages.  Finally, they would consider the public interest in granting or denying a stay.  The district court had more or less resolved these questions against the state, but was willing to give the state the benefit of a chance to get an appellate panel to consider them as well before the decision goes into effect.  This means that unless the state is able to get a stay issued by a “higher authority” — the U.S. Supreme Court — marriage equality would go into effect in Florida on January 6, 2015, without a ruling on the merits by the 11th Circuit.  This seems like a rather strong signal by the 11th Circuit about how they think a merits ruling from a panel of their court would turn out.

On the other hand, this may be a high-stakes game of “chicken” being played by the 11th Circuit panel.  They may be kicking the question of a stay to the Supreme Court (assuming the state will petition for one, which would seem consistent with Attorney General Bondi’s position on these cases) on the theory that the national momentum has been going in one direction, with the notable exception of the 6th Circuit, and that presentation of a stay application to the Supreme Court coming out of a circuit that has not yet ruled on the merits of marriage equality will require the Court to show its hand, perhaps a bit prematurely, in light of the pending petitions for certiorari from the 6th Circuit and Louisiana decisions.

We are now running into interesting timing issues in the national campaign for marriage equality.  The Florida stay expires at the end of business on January 5.  On January 9, the 5th Circuit is scheduled to hear oral arguments in the Texas and Louisiana cases and, perhaps, the Mississippi case as well, since the state has noticed its appeal there.  Later in January, one expects the Supreme Court will be considering in conference the certiorari petitions from the 6th Circuit states (Ohio, Michigan, Kentucky, Tennessee) and Louisiana (petition filed by Lambda Legal on behalf of the plaintiffs).  If the Supreme Court grants cert in one or more cases, there is the question whether the cases can be argued and decided during this term of the Court (by the end of June 2015), or whether by the time the Court makes a cert decision the argument docket for this term will be filled and the cases will be scheduled for argument in the fall?  If the former eventuates, then the 5th and 11th (and most likely the 8th) Circuits may never have to rule on marriage equality, because they would probably put all appeals on hold while waiting for a ruling by the Supreme Court.

If the Supreme Court refuses to stay the Florida injunction, that would send a clear signal to the district judges in Alabama and Georgia who are now sitting on summary judgment motions in marriage equality cases, that if they rule in favor of plaintiffs, there is no need to stay their rulings, because the 11th Circuit and the Supreme Court are unlikely to stay them.  So marriage equality might spread in the 11th Circuit would ever achieving a ruling from the Court of Appeals.  (Wishful thinking?  It’s a pretty conservative circuit.)  And if the Supreme Court were to grant the Louisiana cert petition, the 5th Circuit would probably refrain from ruling in the cases pending there.

Perhaps the worst scenario for getting real progress expeditiously would be if the Supreme Court doesn’t grant a cert petition until too late to schedule arguments this spring.  Then we all play the waiting game until next fall and might not see a final marriage equality ruling until sometime next winter, most likely early in 2016.  And it is possible that none of the remaining circuits would rule on pending appeals so long as a case is scheduled for argument before the Supreme Court.