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2nd Circuit Endorses Narrow Interpretation of its Title VII LGBT-Rights Precedent

Posted on: August 16th, 2019 by Art Leonard No Comments

A three-judge panel of the U.S. Court of Appeals for the 2nd Circuit, sitting in Manhattan, observed in an opinion issued on August 12 that its historic ruling last year in Zarda v. Altitude Express, holding that sexual orientation discrimination violates Title VII of the Civil Rights Act of 1964, does not create a judicial precedent in the 2nd Circuit for purposes of the Constitution’s Equal Protection Clause on the issue of sexual orientation discrimination.

This observation, in an opinion by Circuit Judge Jose A. Cabranes, came in a lawsuit by a woman who was fired early in 2010 from a position as assistant women’s basketball team coach at Binghamton State University in upstate New York after months of rumors that she had a romantic relationship with one of the women on the basketball team.  Naumovski v. Norris, 2019 U.S. App. LEXIS 23891, 2019 WL 3770193 (2nd Cir., Aug. 12, 2019). The plaintiff, Elizabeth Naumovski, who denied that there was any romantic relationship, sued Nicole Scholl, the head coach, and James Norris, the associate athletic director, who made the decision to fire her, claiming a violation of her rights under Title VII and the Equal Protection Clause.  Part of their defense to her constitutional claim was that they enjoyed “qualified immunity” from any personal liability for making the decision to fire her.  District Court Judge David N. Hurd refused to dismiss the claim without discussing the qualified immunity claim, and they appealed.

Under the Supreme Court’s decisions on state actor liability for violating constitutional rights, a government agency or entity such as a public university can only be held liable for its policies, not for discretionary decisions by its management employees.  That is, the doctrine of “respondeat superior,” under which private sector employers can be held liable for the actions of their employees, does not apply in this situation.  Since the University does not have an anti-LGBT employment policy, it cannot be held liable under the Equal Protection Clause, even if a court were to conclude that Ms. Naumovski’s sexual orientation was the reason for her discharge.

However, management employees such as Scholl and Norris can be sued for their decisions violating a public employee’s constitutional rights, if at the time they acted it was “clearly established” in law that the basis for their action was unconstitutional.  Consequently, in ruling on their motion to dismiss the Equal Protection claim against them, Judge Hurd had to determine whether at the time of the discharge in 2010, it was “clearly established,” either by U.S. Supreme Court decisions or 2nd Circuit Court of Appeals decisions, that employees of the state university enjoy constitutional protection from discrimination because of their sexual orientation.   If it was not “clearly established” at that time, Scholl and Norris should be shielded from liability by “qualified immunity,” and their motion for summary judgment should have been granted.

The 2nd Circuit ruled that the motion should have been granted.

“Naumovski’s complaint does not explicitly allege sexual orientation discrimination in its enumeration of her [federal] claims,” wrote Judge Cabranes. “Nevertheless, the District Court appears to have so interpreted her claims.  Indeed, the District Court concluded that ‘Plaintiff has established that she is a member of several protected classes including . . . being perceived as gay.’ We need not decide whether the District Court erred in so construing Naumovski’s complaint.  Even if Naumovski had stated a sexual orientation discrimination claim, Defendants would have qualified immunity from such a claim.”

The court said that any reliance by the district judge on the 2nd Circuit’s decision last year in Zarda v. Altitude Express “in recognizing Naumovski’s arguable sexual orientation discrimination claims” would be erroneous for two reasons.  First, Zarda was a Title VII (statutory) case, not a constitutional case.  Because Altitude Express is a private business, not a government entity, it could not be sued on a constitutional theory.  Furthermore, wrote Cabranes, the Zarda ruling “did not address whether the Constitution prohibits sexual orientation discrimination.  Thus, Zarda is only ‘clearly established law’ for statutory sexual orientation discrimination claims under Title VII.  It does not, however, ‘clearly establish’ constitutional sexual orientation discrimination claims.’”

This is quite disappointing, since the reasoning of Circuit Judge Robert Katzmann’s opinion in the Zarda case should apply equally as a matter of logical reasoning to the question whether sexual orientation discrimination is a subset of sex discrimination, and thus potentially a violation of the Equal Protection Clause.  Elsewhere in his opinion in this case, Judge Cabranes devoted attention to explaining the difference between proof of sex discrimination under Title VII as distinguished from the Equal Protection Clause.  Under Title VII, a defendant can be found to have violated the statute if an employee’s sex was a “motivating factor” in an employment decision, even though it was not the only factor supporting the decision.  By contrast, under the Supreme Court’s approach to Equal Protection, the plaintiff must prove that her sex was the “but-for” cause of the action she is contesting, and the defendant would escape liability if other reasons for its action would provide a valid non-discriminatory reason for the action.

Furthermore, Judge Cabranes pointed out, Zarda was decided in 2018, and Naumovski was discharged in 2010.  “Prior to Zarda,” he wrote, “our Court had expressly declined to recognize sexual orientation discrimination claims under Title VII, much less the Constitution.  Thus, if anything, the ‘clearly established law’ at the time Defendants terminated Naumovski’s employment was that sexual orientation discrimination was not a subset of sex discrimination.  Insofar as the District Court relied on Zarda, therefore, Defendants were surely entitled to qualified immunity.”

The court also pointed out that Naumovski was fired before the Supreme Court had decided U.S. v. Windsor (2013) and Obergefell v. Hodges (2015).  “It was, therefore, not yet clear that all state distinctions based on sexual orientation were constitutionally suspect,” he asserted.  In a footnote, he conceded that in 1996 the Supreme Court had “already begun to scrutinize laws that reflected ‘animosity’ toward gays” when it declared unconstitutional a Colorado constitutional amendment that excluded gay people in that state from protection under state law. “Here, however,” he wrote, “Naumovski has alleged no such class-based animosity or desire to harm.”

Judge Cabranes concluded that even if it is possible that today a public official would not enjoy qualified immunity from constitutional liability for dismissing a public employee because of their sexual orientation, depending how one interprets the current state of affairs in the 2nd Circuit in light of Zarda and nationally in light of Windsor and Obergefell, “at the time of the challenged conduct here such a constitutional prohibition was not yet ‘clearly established.’”

The bottom line in Naumovski’s case is that constitutional claims against Binghamton University and the State University of New York (SUNY) as a whole are dismissed, but several statutory claims against the employers that were not dismissed by Judge Hurd remain in play.  Constitutional claims against Scholl and Norris are now dismissed on grounds of qualified immunity.

Naumovski is represented by A.J. Bosman of Rome, New York.  Scholl and Norris are represented by Margaret Joanne Fowler of Vestal, New York.  The other two judges on the 2nd Circuit panel are Senior Circuit Judges Ralph Winter and Renee Raggi.

Federal Court Rejects Recalcitrant County Clerk’s Free Exercise Claim

Posted on: August 14th, 2015 by Art Leonard No Comments

Judge David Bunning of the U.S. District Court for the Eastern District of Kentucky rejected a claim by Rowan County Clerk Kim Davis that she has a First Amendment right to refuse to issue any marriage licenses in order to avoid compromising her religious belief that a marriage can be only between one man and one woman. 

 

Granting the plaintiffs’ motion for a preliminary injunction in Miller v. Davis on August 12, Judge Bunning concluded that all factors courts consider in deciding motions for preliminary injunctions favored the plaintiffs, including likelihood of success on the merits of their claim that the clerk’s action was violating their constitutional rights, and he granted the injunction.  Clerk Davis, represented by Liberty Counsel, a so-called Christian law firm, promptly noticed her appeal to the 6th Circuit Court of Appeals and, upon advice of counsel, refused to comply with the injunction.  Shortly after noticing the appeal, Liberty Counsel also sought a stay of the injunction pending appeal. Given the 6th Circuit’s hostility to marriage equality, it seemed possible that such a stay would be granted by the circuit court, if not by Judge Bunning.

 

The lawsuit was filed by two couples: April Miller and Karen Roberts (same-sex), and Kevin Holloway and Jody Fernandez (different-sex). Both couples tried to get marriage licenses from the Rowan County Clerk’s Office shortly after the Obergefell decision was announced by the Supreme Court, reversing the 6th Circuit and affirming a Kentucky federal district court ruling for marriage equality.  Both couples were turned down, being told that the office was not issuing any marriage licenses.  Both couples then went to Rowan County Judge Executive Walter Blevins, asking him to issue licenses.  However, Blevins told them, Kentucky law authorizes him to issue licenses only when the county clerk is “absent.”  Since Clerk Davis was continuing to fulfill her other duties, Blevins concluded that she was not “absent” so he did not have authority to issue licenses.  Although at least seven neighboring counties quickly began issuing licenses after the Supreme Court ruling, these couples insisted that they wanted to get their licenses in the county where they lived, worked and paid taxes, and that they should not have to travel out of the county in order to get married, so they filed suit.

 

Unlike some other states, where clerks have argued that their controlling statute does not require them to issue marriage licenses, in Kentucky it is clear that county clerks are supposed to issue licenses, so Davis rests her defense on the proposition that she has a constitutional right based on the 1st Amendment and the state’s Religious Freedom Act to refuse to have any licenses issued by her office because of her religious objections to being seen to endorse same-sex marriages. 

 

Although it is possible that one of her clerical employees could issue the licenses, Davis found this objectionable because, she says, her name as county clerk would still appear on the document, thus implying her endorsement or approval of the marriage.  Under Kentucky’s statute, the marriage license form includes “an authorization statement of the county clerk issuing the license for any person or religious society authorized to perform marriage ceremonies to unite in marriage the persons named.”  Focusing on this, Davis argued that the “authorization statement” constitutes “an endorsement of same-sex marriage, which runs contrary to her Apostolic Christian beliefs,” wrote Judge Bunning.

 

Governor Steve Beshear had tried to talk her out of this position, and had advised her that if she was unwilling to perform her statutory duties she should resign so that somebody willing to comply with the law could be put in her place.  Davis refused, insisting that she intends to serve out the remaining three-and-a-half years of her elected term as county clerk.  

 

As a fallback defense, Davis also argued that requiring Rowan County couples who want to marry to go to a neighboring county did not impose any substantial burden on their newly-proclaimed 14th Amendment right to marry, as weighed against the significant burden on her freedom of religion in requiring her to issue licenses to same-sex couples.  She explained that her office had stopped issuing marriage licenses to anybody because she did not want to engage in discrimination against same-sex couples. 

 

Davis was sued in her official capacity for her refusal to issue any marriage licenses, which the plaintiffs alleged “significantly interferes with their right to marry because they are unable to obtain a license in their home county.”  Davis countered that they could go to a neighboring county, they could get a license from Judge Blevins, or they might in future be able to get a license on-line, pursuant to a proposal being considered by the legislature to move the licensing process out of the county clerk offices.  Judge Bunning rejected these arguments. 

 

Pointing out that the plaintiffs are “long-time residents who live, work, pay taxes, vote and conduct other business in Morehead,” the county seat, they were entitled to prefer to get their licenses locally. 

 

Furthermore, he observed, “there are individuals in this rural region of the state who simply do not have the physical, financial or practical means to travel,” so the office’s refusal to issue any licenses at all would substantially burden some couples who want to marry.  The judge also noted that 57 of the state’s 120 elected county clerks had petitioned the governor to call a special legislative session to enact a law allowing them to refuse to issue licenses to same-sex couples.  Asked Bunning, “If this Court were to hold that Davis’ policy did not significantly interfere with the right to marry, what would stop the other 56 clerks from following Davis’ approach?”  If many county clerks refused to issue licenses, an “inconvenience” could become a “substantial interference” with what the Supreme Court has identified as a “fundamental right.” 

 

Additionally, Bunning agreed with Judge Blevins that Blevins was not authorized by statute to issue marriage licenses in place of Davis when Davis was not “absent” from work, and he concluded further that putting the entire burden for issuing licenses in Rowan County on Judge Blevins, who has many other duties, is not a “viable option.”  As to the on-line alternative, Bunning pointed out it was only a proposal and so it did not respond to the present concern.

 

Bunning found that the state did not have a compelling interest to protect Davis’ free exercise rights that would outweigh the state’s interest in upholding the rule of law, under which the plaintiffs were entitled to get marriage licenses.  “Our form of government,” he wrote, “will not survive unless we, as a society, agree to respect the U.S. Supreme Court’s decisions, regardless of our personal opinions.  Davis is certainly free to disagree with the Court’s opinion, as many Americans likely do, but that does not excuse her from complying with it.  To hold otherwise would set a dangerous precedent.”  Delaying the plaintiffs’ attempts to exercise their fundamental right to marry imposes an irreparable harm on them, the judge found, while he disagreed that requiring the office to issue licenses would impose any substantial harm on Davis.

 

Bunning also disagreed with Davis’s argument that the authorization statement on the marriage license form implied or communicated that she endorses or approves of same-sex marriage.  It is merely a statement that the applicants are legally qualified to marry. Furthermore, he rejected her argument that Governor Beshear’s directive, issued after the Obergefell decision, instructing county clerks to issue licenses to same-sex couples, did not serve a compelling state interest or that she was entitled to a religious exemption from complying with it.  Bunning found that Beshear’s directive is a religiously neutral and generally applicable state policy mandating compliance with the law and not singling out religion in any way. “While facial neutrality is not dispositive,” wrote Bunning, “Davis has done little to convince the Court that Governor Beshear’s directive aims to suppress religious practice.” 

 

He also rejected her argument that Attorney General Jack Conway’s decision not to defend the marriage ban in 2014, leaving the governor to hire outside counsel to represent the state before the 6th Circuit, provided some kind of precedent for her seeking an exemption from being required to comply with her job. Bunning rejected her attempt to draw an analogy, seeing Conway’s position as an “exercise of prosecutorial discretion” based on Conway’s announced view that the ban was not defensible in court, which turned out to be correct at the level of the Supreme Court.  “By contrast,” Bunning pointed out, “Davis is refusing to recognize the legal force of U.S. Supreme Court jurisprudence in performing her duties as Rowan County Clerk.  Because the two are not similarly situated, the Court simply cannot conclude that Governor Beshear treated them differently based upon their religious convictions.”

 

Davis also attempted to assert a free speech claim under the 1st Amendment, which was quickly disposed of under Supreme Court precedents holding that public employees speaking in their official capacity do not enjoy individual 1st Amendment protection for their speech.  After questioning whether the act of issuing marriage licenses can even be characterized as speech, Bunning pointed out that any speech involved in that process (such as the statements on the license form to which Davis objects) is state speech, not Davis’s speech.  “The State prescribes the form that Davis must use in issuing marriage licenses,” he wrote.  “She plays no role in composing the form, and she has no discretion to alter it.  Moreover, county clerks’ offices issue marriage licenses on behalf of the State, not on behalf of a particular elected clerk.”  To Bunning, it was clear that the state was not compelling Davis to communicate personal approval of same sex marriages when it requires her to issue licenses.  When Davis issues licenses, she is acting as an elected official, not as an individual member of the public. 

 

Bunning also rejected her argument that requiring her to issue licenses imposes a constitutionally forbidden “religious test” for her to be a public employee.  “The State is not requiring Davis to express a particular religious belief as a condition of public employment,” he wrote, pointing out that what the state does require is that “all state officials” must “swear an oath to defend the U.S. Constitution.”  She swore such an oath when she took office, he wrote, and her refusal to comply with “binding legal jurisprudence” has “likely violated the constitutional rights of her constituents.”  Quoting from the Obergefell decision, he wrote, “When such ‘sincere, personal opposition becomes enacted law and public policy, the necessary consequence is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty has been denied.’”  “Such policies simply cannot endure,” Bunning asserted.

 

Finally, having concluded that requiring Davis to issue marriage licenses does not substantially burden her free exercise of religion, Bunning rejected her claim to protection under Kentucky’s Religious Freedom Act, which does not grant more protection than the federal Religious Freedom Restoration Act on which it is based.  “Davis remains free to practice her Apostolic Christian beliefs,” he wrote.  “She may continue to attend church twice a week, participate in Bible Study and minister to female inmates at the Rowan County Jail.  She is even free to believe that marriage is a union between one man and one woman, as many Americans do.  However, her religious convictions cannot excuse her from performing the duties that she took an oath to perform as Rowan County Clerk.”

 

Concluding that it was in the public interest to do so, Bunning issued two orders.  First, he ordered that the plaintiffs’ motion for a preliminary injunction be granted.  Second, he ordered that “Defendant Kim Davis, in her official capacity as Rowan County Clerk, is hereby preliminarily enjoined from applying her ‘no marriage licenses’ policy to future marriage license requests submitted by Plaintiffs.”

 

The plaintiffs promptly filed a statement opposing Liberty Counsel’s application to stay Judge Bunning’s order, and the court gave Liberty Counsel a short deadline to respond to the opposition. 

 

Michigan Ban on Benefits for Same-Sex Partners of Government Employees Ruled Unconstitutional

Posted on: November 14th, 2014 by Art Leonard No Comments

Even though the U.S. Court of Appeals for the 6th Circuit rejected a constitutional challenge to the state’s ban on same-sex marriage just days ago, U.S. District Judge David M. Lawson ruled on November 12 that Michigan’s Public Employee Domestic Partner Benefit Restriction Act, passed in 2011, violates the Equal Protection Clause.  Judge Lawson rested his ruling on the anti-gay animus he found in reviewing the enactment of the measure.

On the one hand, the court’s decision in Bassett v. Snyder could not have been too surprising, since Judge Lawson had previously granted a pre-trial motion to enjoin the operation of the law while the case was pending.  On the other, however, such apparent open defiance of a 6th Circuit ruling by a federal court whose decision is subject to appeal to that court is a bit unusual.

Judge Lawson took pains to distinguish the two cases.  Referring to his earlier order in the case, he wrote, “Since the injunction was issued, there has been a new development.  This district court declared that Michigan’s marriage amendment (which prohibits same-sex marriage) violated the Equal Protection Clause because there was no rational basis for the State to deny the benefits of marriage to same-sex couples.  The Sixth Circuit reversed that decision, hold that states ‘retain authority’ to regulate marriage by classifying who may marry; and if same-sex couples are denied that right, they can find no comfort in the Federal Constitution.”

But, he continued, “this case is not about marriage, as such, although allowing same-sex couples to marry would go a long way toward minimizing the discriminatory sting of the Public Employee Domestic Partner Benefit Restriction Act.  Rather, this case deals with couples who cannot marry under state law and their families.  It is one thing to say that states may cleave to the traditional definition of marriage as a means of encouraging biologically complimentary couples to stay together and raise the offspring they product.  It is quite another to say that a state may adopt a narrow definition of family, and pass laws that penalize those unions and households that do not conform.  The former represents the application of a generous and deferential standard of reviewing legislative classifications, one that permits ‘legislative choices [that] may rest on “rational speculation unsupported by evidence or empirical data.”‘  The latter amounts to a classification based ‘on irrational prejudice,’ which cannot be sustained.  And when that occurs, courts play a vital role in our constitutional system to protect individual rights.”

Judge Lawson recounted how the challenged statute was passed by outspoken legislative opponents of gay rights in response to an earlier decisions by the Michigan Supreme Court holding that governmental agencies were not forbidden to grant benefits to same-sex partners of their employees by the state’s Marriage Amendment, which prohibits same-sex marriage or any other similar recognized union for same-sex couples.  (This is the Amendment that was declared unconstitutional by a different federal judge in the DeBoer case, and then revived recently by the 6th Circuit.)  Anti-gay state legislators were particularly incensed when the state’s Civil Service Commission approved domestic partner benefits for state employees.  Although the legislature refused to overrule the Commission’s decision, individual legislators criticized it as “disgusting,” and political outraged mounted when the Michigan Supreme Court rejected the attorney general’s argument that the Marriage Amendment should be construed to prohibit the Commission’s action.

The title of the challenged law gives away its specific purpose: to deprive same-sex partners of benefits.  The court pointed out the particular harms suffered by the plaintiffs, all of whom were receiving benefits for themselves or their partners that were lost until Judge Lawson issued his preliminary injunction requiring their restoration.

The November 12 decision ruled on motions for summary judgment filed by Governor Snyder and the plaintiffs.  It appears that Judge Lawson waited to rule on the motions until after the 6th Circuit ruled in the marriage case, since a right for same-sex couples to marry would ultimately render this case irrelevant.

In evaluating the plaintiffs’ equal protection arguments, Judge Lawson summarized recent developments under which courts in other circuits had applied heightened scrutiny to claims involving anti-gay discrimination, but noted that in the 6th Circuit he was bound by precedent to apply the deferential rational basis test. However, he noted, there was strong precedent from the Supreme Court to apply heightened scrutiny if a discrimination government action was motivated by animus.  In an extended portion of his opinion, the judge determined that this was such a case.

First he found that the law, “as its title suggests,” was enacted specifically to impose restrictions on same-sex partner benefits, thus imposing a deprivation on a disfavored group.  “One need not look very far to learn that gays and lesbians are a disfavored group,” he wrote.  “In 2012, twelve percent of all reported hate crimes in Michigan targeted gays and lesbians.  Gays and lesbians in Michigan have a 27 percent change of experiencing discrimination in obtaining housing.  The State of Michigan provides no protection against harassment or employment discrimination on the basis of sexual orientation.  And the Michigan Legislature has not repealed its sodomy or gross indecency statutes, despite the Supreme Court’s decision in Lawrence v. Texas nearly twelve years ago.”  Lawson pointed out that even the 6th Circuit, in its anti-gay marriage decision, had conceded that gay people have suffered prejudice in the United States.  Going even further, Lawson quoted 7th Circuit Judge Richard Posner’s statement in that circuit’s marriage equality decision, “Until quite recently,” gays and lesbians “had, as [gays and lesbians], no rights.”

“In light of the reactions to the Michigan Civil Service Commission’s furnishing benefits to the same-sex partners of public employees,” he continued, “it is hard to deny that these attitudes persist today.  And it is equally difficult to ignore the inference that Act 297 emerged from those attitudes.”  Thus, heightened scrutiny should apply in this case, despite the 6th Circuit precedents on sexual orientation discrimination.

Lawson examined three alleged “purposes” for the law argued by the state, and found them all insufficient against the test of heightened scrutiny.  Lawson rejected the government’s argument that the purpose of the law was to “augment laws that maintain family relationships,” finding that this denial of benefits did nothing to strengthen heterosexual families while intentionally harming gay families.  The government claimed that the law “eliminates local government programs that are irrational and unfair to traditional families,” a justification whose “reasoning” the court skewered as “flawed,” pointing out that localities had adopted programs allowing employees to designate co-habitants to receive benefits solely as a workaround to avoid the problems imposed by the Marriage Amendment, and not to try to weaken traditional families.  Lawson found that this argument only made sense if “same-sex domestic partners do not constitute families,” but, he asserted, “They do.”  “That justification can be ‘rational’ only if the State could promote a favored group by imposing a deprivation upon a disfavored ‘other’ one,” but that justification, he found, “runs afoul of the Equal Protection Clause.”  He found that this justification supports a finding of animus.  He also rejected the “cost justification” advanced by the state, pointing out that the state saved little, if anything, by denying the benefits, especially when noting the costs to the state of providing medical care to uninsured people with serious medical conditions who would otherwise be insured under domestic partner benefits programs.  And, he pointed out, the state saves no money by prohibiting local governments and county and city agencies from providing such benefits, which do not come out of the state treasury.  Although he conceded that the state is entitled to adopt policies to save money, “the lack of substance behind this stated justification does little to dispel the ‘suspicion that bigotry rather than legitimate policy is afoot.'”  He also found that the law marked a departure from the state’s usual practice, which is to leave local governments a wide degree of autonomy in establishing their employee benefits policies.  Departures from usual practices, especially when they impose deprivations on targeted groups, are another sign of animus.

Quoting from the 10th  Circuit’s marriage equality ruling — in fact, a concurring opinion by Judge Holmes — Lawson wrote, “Once animus is detected, the inquiry is over; the law is unconstitutional.”  And, summarizing the Supreme Court’s ruling from the Colorado anti-gay amendment case of 1996, Lawson wrote, “A law is irrational if its purpose is to target a disadvantaged group.”  Thus, the outcome of this case is clear.  “Public Act 297 was enacted to deprive the same-sex partners of public employees of health and other fringe benefits offered by local units of government.  The defendant has not identified any other credible justification for the law.  The Supreme Court has explained that ‘the Constitution’s guarantee of equality ‘must at the very least mean that a bare [legislative] desire to harm a politically unpopular group cannot’ justify disparate treatment of that group.”

Thus, the court denied the state’s motion for summary judgment, granted the plaintiffs’ motion, and declared that the law violated the 14th Amendment.  Judge Lawson issued an injunction banning the state from enforcing the act.