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Posts Tagged ‘9th Circuit Court of Appeals’

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.

 

9th Circuit Instructs District Court on Next Stage in Trans Military Litigation

Posted on: June 18th, 2019 by Art Leonard No Comments

A three-judge panel of the San Francisco-based U.S. Court of Appeals for the 9th Circuit issued a ruling on June 14 on several appeals filed by the Justice Department in Karnoski v. Trump, one of the lawsuits challenging President Trump’s transgender military policy.  The result was not a complete win for the government or the plaintiffs, but the case will go forward before U.S. District Judge Marsha J. Pechman in Seattle using different legal tests than those she had employed in issuing the rulings that the government had appealed.  Because one of the other challenges to the policy is pending in a district court in Riverside, California, which is also within the 9th Circuit, the court’s ruling effectively applies to both cases.  Karnoski v. Trump, 2019 U.S. App. LEXIS 17878, 2019 WL 2479442 (9th Cir., June 14, 2019).

Since neither party is likely to be fully satisfied with the ruling, which does not fully embrace either party’s position on the appeals, it is possible that one or both will seek reconsideration by a larger panel of the circuit court.  In the 9th Circuit, such panels consist of the Chief Judge of the Circuit and ten active circuit judges drawn at random, together with any senior judges who sat on the panel.  The panel that issued the June 14 ruling had two senior judges – Raymond C. Fisher and Richard R. Clifton – and one active judge, Conseulo M. Callahan.  Fisher was appointed by Bill Clinton, while Clifton and Callahan were appointed by George W. Bush.  District Judge Pechman was appointed by Bill Clinton.

For purposes of simplicity, this description of where the lawsuit stands will refer to the policy announced by then-Defense Secretary Ashton Carter in June 2016 as the 2016 policy, the policy announced in tweets and a White House memorandum by President Donald Trump in July and August 2017 as the 2017 policy, and the policy recommended to Trump by then-Defense Secretary James Mattis in February 2018 as the 2018 policy.

The 2016 policy ended the long-standing regulatory ban on military service by transgender people, but delayed allowing transgender people to enlist until July 2017.  In June 2017, Secretary Mattis announced that the ban on enlistment would be extended to the end of 2017.  The July tweet and August 2017 memorandum announced a return to the ban on service and enlistment that predated the 2016 policy, but delayed re-implementation of the ban until March 2018, pending submission of an implementation plan to the president by Mattis, while providing that the ban on enlistment would remain in effect.

The plan Mattis recommended in February 2018, and that Trump authorized him to adopt, abandoned the total ban concept and is complicated to explain. The policy attempted to shift its focus, at least in terms of concept, from transgender status to the condition of gender dysphoria as described in the American Psychiatric Association’s Diagnostic and Statistical Manual.  The 2018 plan allows some transgender people to serve under certain conditions, depending upon whether and when they were diagnosed with gender dysphoria, whether and when they intended to transition or had transitioned, and whether they were willing to serve in their gender as identified at birth.  People who had been diagnosed with gender dysphoria were barred from enlisting, and currently serving transgender personnel who had not been diagnosed and initiated the process of transitioning by the time the 2018 policy went into effect could continue serving only if they foreswore transitioning while in the service.  However, those who were serving and had begun transitioning before the 2018 policy went into effect could continue serving in the gender to which they had transitioned.  People who identify as transgender but have not been diagnosed with gender dysphoria and are content to serve in the gender identified at birth can enlist and serve, but must leave the service if they are subsequently diagnosed with gender dysphoria.  The bottom line, which was a motivation for Trump’s initial tweet, is that once the 2018 policy was in place, the military would not be funding sex-reassignment surgery for anyone and people could not transition in the military.

Beginning in August 2017 and continuing through that summer, challengers file four lawsuits challenging the 2017 policy on constitutional grounds in Baltimore, Washington (D.C.), Seattle, and Riverside (California).  All of the major LGBT litigation groups were representing the plaintiff in one or more of the cases.  Within months, each of the federal district judges had granted motions for preliminary injunctions to prevent the 2017 policy from going into effect.  In order to issue the injunctions, all four judges had to find that some or all of the plaintiffs’ legal arguments had a fair chance of succeeding on the merits, and that the injunctions were necessary to prevent irreparable harm to the plaintiffs by preserving the status quo without harming the public interest.  The district judges refused to “stay” their injunctions, and on the east coast they were backed up by the 4th and D.C. Circuits, leading the government to abandon an attempt to appeal the denial of stays for the west coast cases in the 9th Circuit.  The district judges also rejected motions by the government to dismiss the cases.  Thus, on January 1, 2018, the Defense Department was required to accept enlistment applications from transgender people, and the 2016 policy remained in effect for transgender people who were actively serving in the military.

Meanwhile, Secretary Mattis appointed a Task Force as directed by the August 2017 White House memo to prepare a report in support of an implementation policy recommendation, which he submitted to the White House in February 2018, urging the president to revoke the 2017 policy and to allow Mattis to implement his recommended policy.  The Task Force was described in various ways at various times by the government, but the names and titles of the members were not listed in the written report released to the public, and the government has resisted discovery requests for their identity and information about how the Task Force report was prepared.

Once Secretary Mattis had the go-ahead from Trump to implement his recommendation, the Justice Department moved in all four courts to get the preliminary injunctions lifted, arguing that the 2018 policy was sufficiently different from the 2017 policy to render the existing injunctions irrelevant.  All four of the district judges rejected that argument and refused to dissolve or modify their injunctions.  The government appealed and ultimately was able to persuade the Supreme Court earlier this year to stay the injunctions and allow the policy to go into effect early in April. Although the 2018 policyhas been in effect for over two months, there have not been reports about discharges of serving transgender personnel.

Significantly, the 9th Circuit panel implied without ruling that the preliminary injunction against the 2017 policy seemed justified.

Meanwhile, the parties in the four cases were litigating about the plaintiffs’ attempts to conduct discovery on order to surface the information necessary to prove their constitutional claims against the policy.  The government fought the discovery requests doggedly, arguing that the internal workings of its military policy-making should not be subject to disclosure in civil litigation, referring to but not formally invoking concepts of decisional privilege and executive privilege, which courts have recognized to varying extent in prior cases challenging government policies.

In the Karnoski case in Seattle, Judge Pechman was highly skeptical about the government’s arguments, having questioned whether the policies were motivated by politics rather than professional military judgment, and she issued an order for the government to comply with a large portion of the requests for documents and information after prolonged negotiations by the lawyers largely came to naught.  The government appealed her discovery orders to the 9th Circuit, together with refusal to rethink the preliminary injunction in light of the substitution of the 2018 policy for the 2017 policy.

The June 14 opinion describes how the case should go forward, taking account of the Supreme Court’s action in having stayed the preliminary injunctions but not dissolved them.  The 9th Circuit panel agreed with the D.C. Circuit, which had concluded earlier in the year that the D.C. district court was wrong to conclude that the 2018 policy was just a version of the 2017 policy with some exceptions.  The appellate courts held that the 2018 policy recommended by Mattis was no longer the total ban announced in 2017, so the district court should evaluate the 2018 policy.

The court rejected the government’s argument that shifting the exclusionary policy from “transgender status” to “gender dysphoria” eliminated the equal protection issue, finding from the wording of the Task Force report and the policy as summarized in writing by Mattis that the policy continued to target transgender people in various ways, regardless whether they have been diagnosed with gender dysphoria, through the conditions it places on their service.  This was a “win” for the plaintiffs on an important contested point.

Judge Pechman had concluded that gender identity is a “suspect classification,” so for purposes of evaluating the constitutionality of the policy under an Equal Protection challenge, it should be presumed unconstitutional with a heavy burden placed on the government to prove a compelling need for the policy.  The 9th Circuit panel decided there was not sufficient precedent to support that approach, but did agree with the position taken by the district judges in the other three cases that the policy should be subjected to “heightened scrutiny,” similar to the approach courts take in sex discrimination cases, but tempered by consideration of the degree to which the policy merits deference as a product of professional military judgment.

Judge Pechman had concluded that the 2017 policy did not merit judicial deference, because there was no evidence before the court that it was the product of professional military judgment.  Rather, as all the district judges had concluded, based on the way the policy was announced in a surprise tweet and the failure of the government to provide any information about how it was formulated, the court’s analysis should not be tempered by judicial deference.

Now, however, said the 9th Circuit panel, the government had described, in a general way, how Mattis’s Task Force was put together, and t the 2018 policy was allegedly the result of many meetings, study, much interviewing of military personnel, and a 44—page report.  If one accepts the government’s description of the process – still not identifying by name the Task Force members or getting into any real detail about the basis for their conclusions – the court said, there is an argument that the 2018 policy should be accorded judicial deference, but whether to do so, and how that would interrelate with the heightened scrutiny standard, were questions to be addressed by the district court.  Thus, the task for Judge Pechman now is to determine whether the 2018 policy is sufficiently a product of military judgment to justify applying a deferential standard of review.  Some degree of cooperating by the government in the discovery process is crucially necessary for such an analysis to take place.

However, as to discovery, the 9th Circuit panel expressed concern that Judge Pechman had not accorded sufficient weight to the concepts of decisional and executive privilege in formulating her discovery order, and directed that she refer to guidelines set out in some recent court opinions.  In particular, the court disagreed with her order that the government provide detailed privilege logs with descriptions of all the documents for which there were privilege concerns, and suggested that an approach focused on broadly described categories of documents and information could suffice for an initial determination of the degree to which privilege might be claimed to block disclosure.

The bottom line is that the Karnoski case goes back to Judge Pechman for a fresh analysis of whether plaintiffs should be entitled to a preliminary injunction against the 2018 policy, using heightened scrutiny and taking account of privilege claims in the discovery process, along the lines outlined by the court.  This opinion also sends a message to the district court in Riverside, where similar government motions are pending.  Meanwhile, the discovery battles continue in the cases pending in Baltimore and Washington.

In light of the Trump Administration’s general policy of fighting against demands for disclosure of internal executive branch decision-making, whether by Congressional committees or litigants, it is difficult to predict when there will be sufficient discovery to provide a basis for further rulings on preliminary injunctions or the ultimate merits of the four court challenges.  The lawsuits succeed in blocking implementation of the total ban and the 2017 policy, and in delaying implementation of the 2018 policy for more than a year.

The litigation will not be finally resolved before Inauguration Day in January 2021 unless the Trump Administration is willing to negotiate some sort of compromise settlement satisfactory to the plaintiffs.  If any of the current Democratic presidential candidates is elected and takes office, a quickly-issued executive order restoring the 2016 policy could put an end to the entire transgender military service drama and restore sanity to an issue that has been clouded by politics and substantial misinformation, such as Trump’s recent grossly-exaggerated statements about the cost of health care for transgender personnel.

Justice Department’s New Request to Implement Transgender Policy Denied by Seattle District Court

Posted on: June 19th, 2018 by Art Leonard No Comments

U.S. Senior District Judge Marsha J. Pechman issued an opinion on June 15, rejecting another attempt by the Trump Administration to get her to lift her preliminary injunction in Karnoski v. Trump and allow the latest version of President Trump’s ban on military service by transgender individuals to go into effect while they appeal her earlier rulings to the 9th Circuit Court of Appeals.  Hope springs eternal at the Justice Department, as their new motion does not really make any arguments that Judge Pechman did not reject in her earlier opinions.  The new opinion in Karnoski v. Trump, 2018 U.S. Dist. LEXIS 100789 (W.D. Wash.), rejects the same arguments emphatically.

Last July, the President tweeted his declaration that transgender people would not be allowed to serve in the U.S. military in any capacity, purporting to reverse a policy on transgender service adopted by the Obama Administration and in effect since July 1, 2016. A month later the White House issued a memorandum setting out the President’s new policy in greater detail, including an implementation date in March 2018 and a permanent postponement of the January 1, 2018, date that had been set by Defense Secretary James Mattis last June for allowing transgender individuals to apply to join the service.  Four lawsuits were filed by different groups of plaintiffs in District Courts in Washington, D.C., Baltimore, Seattle, and Riverside (California), challenging the constitutionality of the policy.  All four federal district judges found that the plaintiffs were likely to win on the merits and issued preliminary injunctions intended to have national effect, forbidding implementation of the policy while the litigation proceeded.  None of the district judges were willing to stay their injunctions pending appeal, and the D.C. and 4th Circuit Courts of Appeals also rejected motions to stay, at which point the Justice Department temporarily desisted from further appeals.

Meantime, Trump had ordered Mattis to come up with a written plan for implementation of the August Memorandum, to be submitted to the White House in February. After Mattis submitted his proposal, which departed in some particulars from the August Trump Memorandum, Trump “withdrew” his Memorandum and tweets and authorized Mattis to adopt his plan.  The Justice Department then argued to Judge Pechman that her preliminary injunction should be lifted, because the policy at which it was directed was no longer on the table.

The judge concluded, however, in line with the plaintiff’s arguments, that the new policy was just a slightly modified version of the earlier policy, presenting the same constitutional flaws, so she refused to vacate her injunction. Instead, responding to motions for summary judgment, she ruled that the case should proceed to discovery and a potential hearing on contested fact issues.  The Justice Department filed a notice of appeal to the 9th Circuit on April 30, and filed a motion with Judge Pechman seeking an expedited ruling on the plaintiffs’ motion for summary judgment so that it could be appealed.  However, the judge declined to issue an expedited ruling, as discovery was supposed to take place and disputed facts might require a hearing to resolve.  Discovery has been delayed by the Justice Department’s insistence that much of the information the plaintiffs seek is covered by Executive Privilege, a dubious claim at best. The Justice Department has filed a motion with the 9th Circuit asking it to stay the preliminary injunction pending appeal, but as of June 15 the 9th Circuit had not responded to the motion.

Judge Pechman’s June 15 opinion said that “each of the arguments raised by Defendants already has been considered and rejected by the Court, and Defendants have done nothing to remedy the constitutional violations that supported entry of a preliminary injunction in the first instance.” She pointed out that she was no more persuaded now than she had been previously by the argument that Mattis’s Implementation Plan was a “new and different” policy.

The Justice Department also argued that “the Ninth Circuit and/or this Court ultimately are highly likely to conclude that significant deference is appropriate,” but Judge Pechman responded, “whether any deference is due remains unresolved.  Defendants bear the burden of providing a ‘genuine’ justification for the Ban.  To withstand judicial scrutiny, that justification must ‘describe actual state purposes, not rationalizations’ and must not be ‘hypothesized or invented post hoc in response to litigation.’”  To date,” she observed, “Defendants have steadfastly refused to put before the Court evidence of any justification that predates this litigation.”

She also pointed out that there are four nationwide preliminary injunctions in effect, not just hers. “As a practical matter,” she wrote, “Defendants face the challenge of convincing each of these courts to lift their injunctions before they may implement the Ban.”

The Justice Department also argued that failure to let the government implement the ban “will irreparably harm the government (and the public) by compelling the military to adhere to a policy it has concluded poses substantial risks.” But, Judge Pechman pointed out, at a hearing of the Senate Committee on Armed Services held after her injunction went into effect, both the Army Chief of Staff, General Mark Milley, and the Chief of Naval Operations, Admiral John Richardson, had testified that there were no problems with transgender people serving, as thousands are now doing.  Milley testified that he “monitors very closely” the situation and had received “precisely zer”’ reports of problems related to unit cohesion, discipline and morale.  Similarly, Admiral Richardson testified that he had received no negative reports, and that, in his experience, “it’s steady as she goes.”

The judge had already found that staying her injunction would likely cause irreparable injury to the plaintiffs, and that, in fact, “maintaining the injunction pending appeal advances the public’s interest in a strong national defense, as it allows skilled and qualified service members to continue to serve their country.”  She also rejected the Justice Department’s argument that her injunction should just apply to the nine individual transgender plaintiffs in the case, stating, “The Ban, like the Constitution, would apply nationwide.  Accordingly, a nationwide injunction is appropriate.”  And, she wrote, “The status quo shall remain ‘steady as she goes,’ and the preliminary injunction shall remain in full force and effect nationwide.”

The plaintiffs in the Karnoski case are represented by a small army of lawyers affiliated with Lambda Legal, Kirkland & Ellis (Chicago), Outserve-SLDN, and Seattle local counsel Newman & Du Wors LLP. The state of Washington, co-plaintiff in the case, is represented by attorneys from Kirkland & Ellis and the Washington Attorney General’s Office.  Fifteen states and the District of Columbia, the Constitutional Accountability Center, and Legal Voice (formerly known as the Northwest Women’s Law Center) are also participating in this case as amicus on behalf of the plaintiffs.

2nd Circuit Rejects Gay Brazilian Man’s Refugee Claims, Despite Evidence About Anti-Gay Violence in Brazil

Posted on: May 1st, 2017 by Art Leonard No Comments

Opening up a gulf in reasoning with the 9th Circuit, which has insisted on a distinction between the official policies of a government and the facts on the ground in evaluating whether gay people would suffer persecution or worse in a particular country, a panel of the U.S. Court of Appeals for the 2nd Circuit affirmed a ruling by an Immigration Judge (IJ) and the Board of Immigration Appeals (BIA) that a gay man from Brazil could not win refugee status in the United States, despite the documented high rate of murders of gay men in that country and the asserted inability of the government to do anything about it. Dias v. Sessions, 2017 WL 1437117, 2017 U.S. App. LEXIS 7088 (2nd Cir., April 24, 2017) (not  published in F.3d).

Because the appeal was decided under the 2nd Circuit’s special summary proceeding method to deal with the huge caseload of refugee appeals generated in the New York metropolitan region, the per curiam opinion emanating from a panel consisting of Circuit Judges Reena Raggi, Peter W. Hall and Denny Chin is light on facts.  The Petitioner, a native and citizen of Brazil, apparently came to the attention of the Department of Homeland Security as a result of a criminal conviction, but the court does not state any details about that, or the circumstances under which he came to be in the United States and subject to removal.  Petitioner applied for asylum, withholding of removal, and/or protection under the Convention against Torture (CAT), all of which were denied by an Immigration Judge on May 7, 2014, in a decision that was affirmed by the Board of Immigration Appeals (BIA) on September 9, 2015.  In addition to finding that the Petitioner failed to meet the burden of showing he would likely be subjected to persecution or torture if removed to Brazil, the IJ found that he could relocate within Brazil to a safer place than that from which he came.  The BIA did not affirm on the relocation finding, which was unnecessary in light of the finding on the merits.

“Although [Petitioner] did not articulate it as such,” wrote the court, “his claim is that private parties have a pattern or practice of persecuting gay men in Brazil, which the government is unable to stop. [He] predicts that people in Brazil will discover that he is gay either from the Internet article about his crime, from his family, or from a future relationship with a man.  He asserts that homophobic violence is rampant in Brazil, citing a State Department report that killings based on sexual orientation rose from 2011 to 2012, and a Chicago Tribune article on a 1995 study that found 59% of gay Brazilians had suffered some type of homophobic violence.  He cites a study finding that a gay person’s risk of being killed there is 785 percent greater than in the United States and several high-profile cases of homophobic murders.  He acknowledges that Brazil has gay marriage, active gay rights groups, and certain cities with anti-discrimination laws, but argues that this evidences shows that Brazil is willing but unable to stop the violence.”

The BIA, in disagreeing with these arguments, “acknowledged the evidence of violence and discrimination against gay Brazilians.” But the agency put more weight on the “official” developments – gay rights groups, gay marriage, annual gay pride parade, and city ordinances banning anti-gay discrimination – to find that the Petitioner had “failed to show the Brazilian government would be unwilling or unable to control those responsible for the violence and discrimination.”

The court commented: “Although the IJ and BIA decisions are sparse on reasoning, substantial evidence supports that finding.” The court emphasized that the Chicago Tribune article on which Petitioner relied was more than twenty years old, and that the State Department report, while citing “338 killings based on sexual orientation, acknowledged the Brazilian government’s efforts to fight discrimination and promote gay rights.”

The standard for review of a BIA determination is not a de novo reconsideration, but rather a determination whether the agency should have been “compelled” by the evidence in the record to rule in favor of the Petitioner.  Under this standard, the 2nd Circuit panel found that the BIA was not “compelled” to grant asylum or withholding of removal to the Petitioner.

Turning to the CAT claim, the court found that the agency “reasonably concluded that his predicted chain of events was speculative. Even if it is likely that [he] will have a romantic relationship with a man, the record did not compel the agency to find it more likely than not that [he] will be tortured by, or with the acquiescence of, Brazilian authorities.”

Petitioner is represented by Robert C. Ross of West Haven, CT.

The 2nd Circuit panel’s approach deviates from that recently taken by the 9th Circuit in appeals by gay men from Mexico, another country in which the movement for marriage equality has made major gains, some municipalities now ban sexual orientation discrimination, and formerly anti-gay criminal laws have been reformed, but anti-gay violence at the hands of criminal gangs, police officers, and family members of gay people remains a major concern.  In Bringas-Rodriguez v. Sessions, 850 F.3d 1051 (9th Cir. 2017), recently reiterated in Hernandez v. Sessions, 2017 WL 1404699 (9th Cir., April 20, 2017), the court “made clear” that its earlier precedents on refugee claims by gay Mexicans “falsely equated legislative and executive enactments prohibiting persecution with on-the-ground progress” and insisted that the U.S. immigration authorities must look beyond such “official” positions to consider the situation that gay people actually face in countries where there is pervasive anti-gay hostility about which the governments can do little.  The 9th Circuit has been particularly emphatic in protecting transgender refugee applicants.  In cases where local police officials are part of the problem, the 9th Circuit has chided immigration authorities for failing to recognize such harassment as being attributable to the government.  The Supreme Court has yet to decide any case involving a claim for refugee status in the United States by a gay or transgender applicant.

9th Circuit En Banc Panel Revives Gay Mexican’s Asylum Claim

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

An eleven-judge panel of the San Francisco-based U.S. Court of Appeals for the 9th Circuit revived an HIV-positive gay Mexican man’s claim for refugee status to remain in the United States on March 8, reversing rulings by a three-judge panel of the court, the Board of Immigration Appeals, and an Immigration Judge.  The opinion for the court in Bringas-Rodriguez v. Sessions, 2017 U.S. App. LEXIS 4077, 2017 WL 908546, was written by Judge Kim McLane Wardlaw, a Clinton appointee.  One member of the court, Judge Richard R. Clifton, filed a concurring opinion, and two members, Judges Carlos T. Bea and Diarmuid O’Scannlain, dissented in an opinion by Judge Bea.  Bea, appointed by George W. Bush, and O’Scannlain, appointed by Ronald Reagan, are among the most conservative judges on the 9th Circuit.  The reversed three-judge panel consisted of two George W. Bush appointees and a dissenting Clinton appointee, William Fletcher.

Carlos Alberto Bringas-Rodriguez, born in Tres Valles, Veracruz State, was, according to Judge Wardlaw’s summary of his testimony, which was deemed credible by the Immigration Judge, “horrifically abused by his father, an uncle, cousins, and a neighbor, all of whom perceived him to be gay or to exhibit effeminate characteristics.”  Bringas testified that his uncle raped him when he was four, and that three of his cousins and a male neighbor “physically and sexually abused him on a regular basis while he lived in Mexico.”  He also suffered regular beatings from his father, who told him, “Act like a boy.  You are not a woman.”  He claims his uncle told him when he was eight that he was being abused because he was gay.  “His uncle, cousins, and neighbor never called him by his name,” wrote Wardlaw, “referring to him only as ‘fag, fucking faggot, queer,’ and they ‘laughed about it.’”

Bringas lived briefly with his mother in the U.S. when he was twelve, but he returned to Mexico because he missed his grandmother, who had been raising him since he was nine.  The abuse intensified when he returned.  “On one occasion, when Bringas refused to comply with his neighbor’s demand for oral copulation, the neighbor beat and raped him, leaving Bringas with black eyes and bruises,” and his abusers “also threatened to hurt his grandmother, with whom he was close, if he ever reported what was happening,” wrote Wardlaw.  “Fearing that they would follow through on their threats, Bringas did not tell his mother, teachers, or anyone else about the sexual abuse.”  He fled back to the U.S. in 2004 when he was fourteen.

Entering the country illegally at El Paso, he made his way to Kansas where he lived with his mother for the next three years.  Then he moved out of his mother’s home, living elsewhere in Kansas and in Colorado, holding several jobs.  In August 2010 he pled guilty to “attempted contributing to the delinquency of a minor” in Colorado.  According to his account, as related by Wardlaw, “he had been at home drinking with some friends when another friend brought over a minor who became drunk.”  Bringas served 90 days in jail, “during which time he attempted suicide and was hospitalized, which precipitated his finally telling a doctor and then his mother about his childhood abused.”  His conviction triggered a notice to the Department of Homeland Security, which immediately issued him a “Notice to Appear.”

The next year, at age 20, he applied for asylum, withholding of removal, and protection under the Convention against Torture (CAT).  Asylum claims normally have to be filed within a year of arrival in the U.S., but he claimed he had been “unaware” at age 14 that he could apply for asylum, and only learned of this when he “spoke with an ICE officer in Colorado in September 2010” when he responded to the Notice to Appear.  In his application, he described the abuse he had suffered in Mexico and “explained that he feared persecution if he returned because he was gay and that the Mexican police would not protect him.  Bringas also credibly testified about his gay friends’ experiences with police in Veracruz.  Those friends went to the police to report that they had been raped, but the officers ignored their reports and ‘laughed [on] their faces.’”  He also submitted State Department country human rights reports on Mexico from 2009 and 2010, as well as newspaper articles documenting violence against gays in Mexico, which showed that violence was rising even as “Mexican laws were becoming increasingly tolerant of gay rights.”  In a footnote, Judge Wardlaw cited guidelines issued by the United Nations High Commissioner for Refugees, explaining that “legal improvements and widespread persecution are not mutually exclusive.”

An Immigration Judge found Bringas’ factual testimony to be credible, but denied his application, as did the Board of Immigration Appeals (BIA) on his appeal.  The IJ found that his asylum claim was untimely under the one-year rule, a point that the BIA ignored, treating his asylum claim on the merits.  Next, the IJ found, and the BIA recognized, that although Bringas had suffered “serious abuse” as a child, he did not show that the “abuse was inflicted by government actors or that the government was unwilling or unable to control his abusers.”  This was a critical finding, because the basis for establishing refugee status is to show persecution at the hands of the government or private actors whom the government is unwilling or unable to control.  Purely private abuse, as such, is not considered to be “persecution” under relevant statutes and treaties.  Having found that Bringas had not established “past persecution,” the BIA approved the IJ’s finding that there was no presumption that he had a reasonable fear of future persecution in Mexico, because he had “failed to show a pattern or practice of persecution of gay men in Mexico.”  The BIA wrote that “the record did not demonstrate widespread brutality against homosexuals or that there was any criminalization of homosexual conduct in Mexico.”  Indeed, the BIA found that the Mexican government “has taken numerous positive steps to address the rights of homosexuals.”  The IJ and BIA found no evidence that Bringas was likely to be tortured by the government if he were removed back to Mexico.

The three-judge panel of the 9th Circuit considering his appeal focused on a prior circuit ruling, Castro-Martinez v. Holder, 674 F.3d 1073 (9th Cir. 2011), concerning cases where the applicant’s abusers were all private citizens, which held that in order to establish that the government was unwilling or unable to control the abusers, the victim had to have reported the abuse to the government.  Wrote Wardlow, “the panel majority reasoned that where a victim fails to report abuse, even as a child, ‘there is a “gap in proof about how the government would have responded,”’ and that petitioner bears the burden to ‘fill in the gaps’ by showing how the government would have responded had he reported the abuse.”  The 3-judge panel emphasized the part of the State Department country reports that discussed how Mexican law had improved for gay people, including the government’s establish of a “specialized hate crimes prosecution unit” and the proclamation of a “national day against homophobia.”  The panel found “insufficient” Bringas’s testimony about the comments by his gay friends in the U.S. about how the police had failed to respond to their reports of abuse.  “Even if the friends’ reports were credited, the panel majority explained, those reports failed to establish that police practices in the city or state of Veracruz could be linked to police practices in Tres Valles, Bringas’s hometown.”

The panel majority, in common with the IJ in this case, also suggested that the issue here was not narrowly sexual abuse because of homosexuality, but rather the more general phenomenon of sexual abuse of children, and suggested that there was no evidence that the Mexican law enforcement authorities would be indifferent to reports of child sexual abuse.  In this connection, they noted that Bringas’s testimony did not specify how old his friends were when they unsuccessfully reported their abuse to the police.

Judge William Fletcher, the dissenting member of the 3-judge panel, expressed growing discomfort about the prior precedent upon which the majority of that panel was relying, pointing to the circuit’s “ample precedent that does not require victims of private persecution, especially child victims, to contemporaneously report their abuse to government authorities in order to become eligible for asylum in the United States.”

The en banc panel majority, reversing the 3-judge panel, embraced Judge Fletcher’s criticism, citing extensive evidence about the psychological and practical problems a child victim of sexual abuse would have in reporting the abuse to authorities, especially if they or their loved ones were threatened with retribution if they made any report, as had happened in Bringas’s case with threats to harm his grandmother.  Going further, the en banc panel overruled the prior precedent to the extent that it had been relied on as requiring reporting to the authorities in a case founded on abuse by non-governmental actors in order to establish “persecution” for purposes of asylum or withholding of removal.

While it was clear in this case that the asylum claim was filed too late, the court determined that Bringas’s claims for withholding of removal and protection under the CAT must be reconsidered by the Board.  The court found Bringas’ testimony, which had been deemed credible by the IJ and the BIA, sufficient to establish that he had been subjected to past persecution, and based on that testimony he was entitled to a presumption of further persecution.  Sending the case back to the BIA, the court said the remaining issue was whether that presumption had been rebutted by the government’s evidence of changed conditions in Mexico.

Furthermore, while this case was in progress, but after the BIA issued its opinion, Bringas learned for the first time that he was HIV-positive.  He had asked to reopen the case in order for the BIA to take this new information into account, but the BIA refused his request, observing that he had failed to show “how his status as an HIV positive homosexual changes the outcome of his case.”  The court ordered that BIA allow Bringas to supplement the record and to take account of new evidence about his HIV diagnosis.

Judge Clifton concurred on narrower grounds.  He felt, along with Judge Bea’s dissent, that the court’s opinion was insufficiently deferential to the BIA, which as a matter of administrative law is entitled to substantial deference by the courts and should not be reversed unless “any reasonable adjudicator would be compelled to conclude to the contrary based on evidence in the record.”  To Clifton, the evidence presented by Bringas about the unwillingness or inability of the government to address sexual abuse of gay children was not overwhelming, relying on “an unspecific hearsay report by Bringas of what he was told by one or two other persons about what had happened when a report was made to police in a different town.  That evidence would have been sufficient to support a conclusion that a report by a child to the police would have been futile, but it was not so powerful that no reasonable adjudicator could have found to the contrary,” he wrote.  He also noted that much of Bringas’ evidence was rather general and did not necessarily compel the conclusions reached by the majority of the court as to his persecution case.

On the other hand, Clifton found that the BIA “appeared to disregard the evidence that Bringas offered on the subject,” so it was appropriate to remand for reconsideration.  The IJ had written that there “was ‘no evidence whatsoever’ to support Bringas’s contention that a police report would have been futile, and it did not reflect any awareness of the evidence to that effect,” and the BIA’s opinion did not correct that misstatement.  While Clifton agreed the case should be sent back, he, unlike the majority, “would not dictate the answer to that past persecution question” but rather allow the BIA to reweigh the evidence.

Judge Bea’s dissent, as mentioned by Judge Clifton, focused on the court’s failure to accord sufficient deference to the BIA’s decision, emphasized the weak points in Bringas’s testimony, and accused the majority of mischaracterizing the precedent that it was overruling.  He also argued that the situation facing Bringas at age 14 was very different from the situation he would face today as an adult if returned to Mexico, pointing out further that the record showed that conditions for gay men in Mexico varied.  If returned to Mexico, Bringas would not have to live in Veracruz, but could instead locate in Mexico City, a jurisdiction that has legislated for same-sex marriage, supports gay pride marches, and is notably gay-friendly.

It will be interesting to see whether the government will seek Supreme Court review of this en banc ruling from the 9th Circuit.  The new Attorney General, Jeff Sessions, was substituted as Respondent for his predecessor, Loretta Lynch, upon taking office.  As this ruling may make it easier for Mexican asylum applicants to win the right to remain in the United States, the Trump Administration may seize upon it as a vehicle to tighten up on the asylum process by winning a reversal.  Certainly the Administration would have an interest in establishing deference for the BIA, given the ability of the President and Attorney General to influence the policies of that agency through appoints to the Board. In light of the timing, any review would take place after Trump’s nominee to fill the vacant seat on the Court takes the bench, re-establishing a majority of Republican appointees on the Court.

This en banc reconsideration of Bringas’s case was considered a big deal by the immigrants’ rights and civil liberties communities.  Dean Erwin Chemerinsky of the University of California (Irving) School of Law argued the appeal, with the Appellate Litigation Clinic at his school representing Bringas together with pro bono attorneys from major California law firms.  The government’s case was argued by relatively high level attorneys from the Justice Department in Washington.  Several amicus briefs were filed in support of Bringas’s appeal, including a wide variety of public interest groups, including Lambda Legal, National Center for Lesbian Rigths, the National Immigrant Justice Center, the HIV Law Project, the Transgender Law Center.  An amicus brief was submitted on behalf of Alice Farmer, the United Nations High Commissioner for Refugees, by Williams & Connolly LLP, a major national law firm that frequently appears before the Supreme Court.

9th Circuit Rejects Religious Freedom Challenge to California Law Banning Conversion Therapy for Minors

Posted on: August 24th, 2016 by Art Leonard No Comments

California’s S.B. 1172, which prohibits state-licensed mental health providers from engaging in “sexual orientation change efforts” (commonly known as “conversion therapy”) with minors, withstood another 1st Amendment challenge in a new decision by the San Francisco-based U.S. Court of Appeals for the 9th Circuit in the case of Welch v. Brown, 2016 U.S. App. LEXIS 15444, 2016 WL 4437617, announced on August 23.

A unanimous three-judge panel of the court of appeals affirmed a ruling by U.S. District Judge William B. Shubb that the law does not violate the religious freedom rights of mental health providers who wish to provide such “therapy” to minors or of their potential patients.

In a previous ruling, the court had rejected the plaintiffs’ claim that the law violated their free speech rights. They had argued that such therapy mainly involves talking, making the law an impermissible abridgement of freedom of speech. The court had countered that this was a regulation of health care practice, which is within the traditional powers of the state.  As such, the court found that the state had a rational basis for imposing this regulation, in light of evidence in the legislative record of the harms that such therapy could do to minors.

In this case, the plaintiffs were arguing that their 1st Amendment religious freedom claim required the court to apply strict scrutiny to the law, putting the burden on the state to show that the law was narrowly-tailored to achieve a compelling state interest.  They contended that the law “excessively entangles the State with religion,” but the court, in an opinion by Circuit Judge Susan P. Graber, said that this argument “rests on a misconception of the scope of SB 1172,” rejecting the plaintiffs’ claims that the law would prohibit “certain prayers during religious services.”  Graber pointed out that the law “regulates conduct only within the confines of the counselor-client relationship” and doesn’t apply to clergy (even if they also happen to hold a state mental health practitioner license) when they are carrying out clerical functions.

“SB 1172 regulates only (1) therapeutic treatment, not expressive speech, by (2) licensed mental health professionals acting within the confines of the counselor-client relationship,” she wrote, a conclusion that “flows primarily from the text of the law.” Under a well-established doctrine called “constitutional avoidance,” the court was required not to interpret the statute in the manner suggested by the plaintiffs.  This conclusion was bolstered by legislative history, ironically submitted by the plaintiffs, which showed the narrow application intended by the legislature.  Thus, “Plaintiffs are in no practical danger of enforcement outside the confines of the counselor-client relationship.”

Plaintiffs also advanced an Establishment Clause argument, contending that the measure has a principal or primary purpose of “inhibiting religion.” Graber countered with the legislature’s stated purpose to “protect the physical and psychological well-being of minors, including lesbian, gay, bisexual and transgender youth, and to protect its minors against exposure to serious harm cause by” this “therapy.”  The court found that the “operative provisions” of the statute are “fully consistent with that secular purpose.”  A law that has a secular purpose with a possible incidental effect on religious practice is not subject to strict scrutiny under Supreme Court precedents.  Again, the court pointed out, religious leaders acting in their capacity as clergy are not affected by this law.

The court also rejected the contention that a minor’s religiously-motivated intent in seeking such therapy would be thwarted by the law, thus impeding their free exercise of religion. The court pointed out that “minors who seek to change their sexual orientation – for religious or secular reasons – are free to do so on their own and with the help of friends, family, and religious leaders.  If they prefer to obtain such assistance from a state-licensed mental health provider acting within the confines of a counselor-client relationship, they can do so when they turn 18.”

The court acknowledged that a law “aimed only at persons with religious motivations” could raise constitutional concerns, but that was not this law. The court said that the evidence of legislative history “falls far short of demonstrating that the primary intended effect of SB 1172 was to inhibit religion,” since the legislative hearing record was replete with evidence from professional associations about the harmful effects of SOCE therapy, regardless of the motivation of minors in seeking it out.  Referring in particularly to an American Psychiatric Association Task Force Report, Judge Graber wrote, “Although the report concluded that those who seek SOCE ‘tend’ to have strong religious views, the report is replete with references to non-religious motivations, such as social stigma and the desire to live in accordance with ‘personal’ values.”  Thus, wrote the court, “an informed and reasonable observer would conclude that the ‘primary effect’ of SB 1172 is not the inhibition (or endorsement) of religion.”

The court also rejected the argument that the law failed the requirement that government be “neutral” concerning religion and religious controversies. It also rejected the argument that prohibiting this treatment violates the privacy or liberty interests of the practitioners or their potential patients, quoting from a prior 9th Circuit ruling: “We have held that ‘substantive due process rights do not extend to the choice of type of treatment or of a particular health care provider.’”

Attorneys from the Pacific Justice Institute, a conservative legal organization, represent the plaintiffs. The statute was defended by the office of California Attorney General Kamala D. Harris.  Attorneys from the National Center for Lesbian Rights, with pro bono assistance from attorneys at Munger, Tolles & Olson LLP, filed an amicus brief defending the statute on behalf of Equality California, a state-wide LGBT rights political organization.

9th Circuit Denies On-Line Newspaper’s Anti-SLAPP Motion Against Porn Star’s Libel & False Light Lawsuit

Posted on: July 26th, 2016 by Art Leonard No Comments

A unanimous three-judge panel of the U.S. Court of Appeals for the 9th Circuit affirmed a decision by District Judge George H. Wu to deny an anti-SLAPP motion by Associated Newspapers LTD, publishers of Daily Mail Online, which is being sued by “Danni Ashe,” a straight porn diva whose real name is Leah Manzari, over the use of her picture to illustrate an article about HIV in the porn industry.  Manzari v. Associated Newspapers LTD., 2016 U.S. App. LEXIS 13488, 2016 WL 3974178 (July 25, 2016).  Manzari, who asserts without contradiction that she is not and has never been HIV-positive, claimed that the publication would lead viewers to believe that she was infected, and sought $3 million in damages for libel and “false light” invasion of privacy.  The 9th Circuit agreed with Judge Wu that Manzari was likely to prevail on the merits of her tort claims.  Judge M. Margaret McKeown wrote the opinion for the court of appeals.

According to its legislative history, California’s anti-SLAPP statute (SLAPP stands for “strategic lawsuit against public participation”) was passed in response to “a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” It is intended to protect those who want to comment or publish on issues of public importance from nuisance suits intended to discourage their exercise of free speech.  When a defendant responds to a tort suit with an anti-SLAPP motion, the burden falls on the plaintiff to establish that “there is a probability that the plaintiff will prevail on the claim.”  In a non-SLAPP situation, a plaintiff can survive a motion to dismiss merely by alleging facts sufficient to suggest a plausible legal claim.  Thus, the anti-SLAPP device, putting a greater burden on the plaintiff, is supposed to protect free speech by nipping non-meritorious lawsuits in the bud, before the defendant incurs significant expenses in discovery and summary judgment litigation defending against a non-meritorious case.

This case arose when Daily Mail Online published a story about a “shutdown of the Los Angeles-area porn industry” in 2013 after a female performer, whose identity was not then disclosed, tested positive for HIV. The author of the article, James Nye, asked the photo desk to supply “some pictures representative of the pornographic film industry that contained no nudity” that could be used to illustrate the article.  He was provided with several “stock” photographs selected from the Corbis Images database, one of which was identified in that database as follows: “Soft porn actress Danni Ashe, founder of Danni.com, poses in front of a video camera connected to the Internet in one of her studios in Los Angeles in 2000.”

Judge McKeown described the article in her opinion. “The headline read ‘PORN INDUSTRY SHUTS DOWN WITH IMMEDIATE EFFECT AFTER ‘FEMALE PERFORMER’ TESTS POSITIVE FOR HIV.’  After a few lines of text, the article contained a picture of Manzari lying suggestively across a bed with ‘In Bed With Danni” written in neon lights behind her.  Under her photograph was the caption: ‘Moratorium: The porn industry in California was shocked on Wednesday by the announcement that a performer had tested HIV positive.’”

Somebody reading further into the article would learn that the actress who tested positive was “new to the industry” and that “the performer was not immediately identified.” Other “stock” photos depicting other porn actresses also appeared in the article. Neither Danni Ashe nor Manzari was named in the text of the article.

Manzari’s attorney contacted Daily Mail Online when the article was published, demanding that the photograph be removed. Daily Mail made the change on their website, but the damage had been done, according to Manzari.  The original version of the article had been syndicated on the Internet. She claimed that a Google search returned the original version with her picture from websites around the world.  Worse, the version that showed up on a search screen would have the headline and her photograph, without any of the explanatory text as to the actress being “unknown.”  Consequently, she alleged, most of those who saw the article on line or as part of a search would conclude that “Danni Ashe” was HIV-positive.

Daily Mail argued that this was a frivolous lawsuit intended to chill their publication of a newsworthy story, and that the “stock” photograph was an appropriate illustration for the article. They pointed out that they never named Manzari (or “Ashe”) in the article or stated that the model in the picture was HIV-positive.  Furthermore, they pointed out, the article was a true news story on an item of public interest, thus entitled to strong First Amendment protection.  “There is no serious dispute that the libel and false light suit targeted speech protected by the anti-SLAPP statute,” wrote McKeown, so “the burden shifts to Manzari to show a reasonable probability of prevailing on the merits.”  Daily Mail also argued that Manzari, in the guise of Danni Ashe, should be treated as a “public figure,” which means that Daily Mail could be held liable to her only if it was shown that they had published the picture with “actual malice,” which in this case would mean with actual knowledge that it communicated a false meaning or with reckless disregard as to the truth.

Manzari is making two claims. The libel claim contends that an untrue publication that she is HIV-positive would be damaging to her personal or professional reputation, and the “false light” claim contends that the photograph provides an inaccurate depiction of her to the public in the context in which it is presented.  In any tort case, the plaintiff has to prove actual injury, although libel law traditionally presumes “actual injury” if a person is falsely depicted as having a “loathsome” disease, and sexually-transmitted diseases  such as HIV generally fall into that category, or is falsely described in a way that would be harmful to their standing in the profession.  Interestingly, the court’s opinion contains no discussion whatsoever about whether falsely implying or communicating that somebody is HIV-positive would harm their reputation or professional status.  This is silently assumed, perhaps because it struck the court that it would be obvious to anybody that saying that a porn actress is HIV-positive would adversely affect her ability to work in her chosen profession.

The court focuses instead on other factors in the legal analysis. For example, it makes a difference whether the plaintiff is a “public figure.”  People who have achieved sufficient fame or notoriety that they are recognizable to the public at large are deemed to be “public figures” whose activities are inherently newsworthy, and thus they face a high burden in trying to hold the press liable for reporting about them.  The court found that although Danni Ashe’s fame might be somewhat specialized, she nonetheless qualifies as a public figure. “Manzari is a pioneer in the online adult entertainment industry,” wrote the court.  “Her website www.Danni.com, which she designed and launched in 1995, began generating multimillion dollar revenues in the early 2000s.  During this time, ‘Danni Ashe’ was one of the most well-known and popular soft-core porn actresses in the world, as well as a highly successful entrepreneur, with one of the most visited websites on the Web.  She retired from the adult entertainment industry in 2004 and sold www.Danni.com, but the website remains active under that name.”  The court found that press references to Ashe supplied by Daily Mail Online supported its contention that the public figure rules should apply, which means that in order to deny the motion to dismiss her case, the court would have to find that she could probably win on the issue whether the false representation was made with “actual malice” to meet the constitutional standard.

Next, the court confronted Daily Mail’s argument that the article never mentioned Danni by name. Actually, that wasn’t true, as the picture itself had her first name in neon lights as background to her image.  “The bold headline and its content, juxtaposed with her photograph and yet another caption under her picture that said the industry was ‘shocked’ that a ‘performer had tested HIV positive,’ was sufficient for a reasonable reader to infer that Manzari was the performer who had tested positive for HIV,” wrote Judge McKeown, treating this as an “implied” defamation case.

Daily Mail argued that “this case is different from the classic defamation by implication case because it did not make any statement by including a stock photograph selected as a ‘good, nonobscene photograph to illustrate the article.’”  McKeown characterized this argument as “disingenuous,” saying that it “overlooks the fact that a photograph itself can convey both an implicit and an explicit message and that the headline, caption and photograph taken together are also a statement.”  The court found that when it considered the article “as a whole” and in its full context, “a reasonable reader could infer that the article is about Manzari.”

As to the “actual malice” requirement, it was clear that the Daily Mail Online had done nothing to determine whether the person in the photograph, who was clearly a porn actress, was HIV-positive. “This case rests on the ‘reckless disregard’ prong of actual malice,” wrote the court.  “Recognizing that California law requires only ‘minimal merit’ to withstand initial dismissal under the anti-SLAPP statute, we hold that Manzari has raised sufficient factual questions for a jury to conclude that the Daily Mail Online acted with reckless disregard for the defamatory implication in its article on the Los Angeles porn industry shutdown.  Manzari’s evidence is sufficient to support her claim that the Daily Mail Online placed her photograph in the article, juxtaposed with the incendiary headline and caption, knowing or acting in reckless disregard of whether its words would be interpreted by the average reader as a false statement of fact.”

Not only was it likely that readers would infer Manzari was the subject of the article, but Daily Mail’s editorial staff “actively removed key contextual information from the ‘Danni Ashe’ photograph as it was presented in the Corbis database,” replacing the database description, quoted above, with the language about the industry being “shocked” about an actress testing positive. “The publishers also failed to include any explanation or disclaimer adjacent to the ‘Danni’ photograph, which would have informed readers that she was not the subject of the article.”

Furthermore, the court gave little weight to the publisher’s denial of any intention to communicate to readers that Manzari was HIV-positive. “If all a publisher needed to do was to deny the allegation, all implied defamation suits would be dead on arrival,” said the court.  “If, for instance, a newspaper ran the headline: ‘High Profile Figure Accused of Murder’ alongside a photograph of the Mayor of New York City, or ‘Industry Shocked that Grocery Sprayed Veggies with Pesticide’ alongside an image of a nationally-known grocery chain, the publishers would be hard-pressed to plausibly claim that they had simply selected a ‘stock’ photograph.  The same holds true for a story about the pornography industry, featuring a picture of a world-famous pornographic actress with her name written in neon lights.”  In a sarcastic footnote, McKeown added, “One need only look to the Daily Mail’s own evidence of Manzari’s public figure status to confirm the ubiquity of her image and her identity.  Her image can hardly be relegated to the status of a ‘stock’ photograph.”

“This sort of willful blindness cannot immunize publishers where they act with reckless disregard for the truth or falsity of the implication they are making,” concluded McKeown. “Manzari meets the ‘minimal merit’ threshold to avoid outright dismissal of her complaint,” so the district court “properly denied the Daily Mail’s motion to strike Manzari’s complaint.”

The usual consequence of denial of an anti-SLAPP motion would be for the defendant to offer a settlement to the plaintiff, since the court has already concluded that there is a reasonable probability that the plaintiff would win the case before a jury. If Daily Mail wants to pursue its motion further, it could seek reconsideration by a larger panel of the 9th Circuit or petition the Supreme Court for review, but neither of those routes seems likely to result in a reversal of the panel’s logical and unanimous decision.  Time for Daily Mail’s liability insurer to step in.

Los Angeles attorney Steven L. Weinberg represents Manzari. Katherine M. Bolger of the New York firm Levine Sullivan Koch & Schulz LLP and California local counsel Louis P. Petrich of Leopold, Petrich & Smith PC, represent Daily Mail.

Third Week of November 2014 Was a Busy Week on the Marriage Equality Front

Posted on: November 21st, 2014 by Art Leonard 1 Comment

Things have begun to happen so quickly that I have fallen behind in my blogging on marriage equality developments, so here is a quick summary about events during the third week of November.

Monday, November 17 –  Plaintiffs in the 6th Circuit marriage equality cases from Ohio, Kentucky, Tennessee and Michigan finished filing their petitions for certiorari with the Supreme Court.  These are the first petitions for certiorari in marriage equality cases to be filed with the Court since it denied petitions presenting essentially the same constitutional questions on October 6 in cases from Utah, Oklahoma, Virginia, Indiana and Wisconsin.  Since October 6, the Supreme Court had consistently denied applications to stay district court marriage equality rulings from other states in the 10th and 4th Circuits, as well as applications from states in the 9th Circuit, where the Court of Appeals struck down the Nevada and Idaho bans on same-sex marriage on October 7.  Cert petitions from the Ohio and Tennessee cases had been filed on Friday, November 14, and the petitions from the Michigan and Kentucky cases were filed on November 17.  The state respondents have up to thirty days to file responses, although they are not required to file anything.  There was wide speculation that the Supreme Court will grant one or more of these petitions once the filings are complete and the cases are scheduled for consideration at a conference of the Court.  If one or more petitions are granted by mid-January, it is likely that the cases can be scheduled for argument in the spring with decisions forthcoming by the end of the Court’s term in June.  If the Court takes longer to decide whether to grant a petition, it is possible that these cases would not be argued until the Fall 2015 term, with decisions coming by June 2016.  Thus, as Justice Antonin Scalia predicted in his dissent in the 2013 DOMA ruling, U.S. v. Windsor, the question of same-sex marriage would be back before the Court within a year or two of that ruling.

The speculation about what the Court will do was fueled in part by Justice Ruth Bader Ginsburg’s comments during an appearance at the University of Minnesota Law School in September, when she remarked that the Justices saw no urgency in taking up this issue as long as all the courts of appeals were deciding cases the same way, but that a circuit split would generate such urgency.  She specifically referenced the then-pending 6th Circuit case as possibly meeting that contingency.  Now the 6th Circuit has dropped that bomb, opening up a split with the 4th, 7th, 9th and 10th Circuits.

Also on Monday, November 17, Arizona Attorney General Thomas C. Horne filed a notice of appeal in Connolly v. Roche, seeking review of the U.S. District Court’s decision striking down Arizona’s state constitutional and statutory bans on same-sex marriage.  A.G. Horne had not sought a stay in that case, stating at the time that it would be “futile” to seek a stay from the 9th Circuit in light of its October 7 ruling in Latta v. Otter.  However, one suspects that Horne was under terrific political pressure to appeal the ruling regardless, and he announced a motivation of trying to avoid paying a large attorney fee award to the plaintiffs.  Of course, his appeal will contend that the district court erred in striking down the marriage ban.  The 9th Circuit set a deadline of February 25 for the state’s brief in support of its appeal, and set March 27 as the due date for the Appellee’s answering brief, so this case would not be argued until April or later.

Tuesday – November 18.  This was an incredibly busy day for marriage equality developments.  The 4th Circuit Court of Appeals turned down a motion by South Carolina Attorney General Alan Wilson for a stay of the U.S. District Court’s order requiring the state to allow same-sex couples to marry.   Wilson sought the stay pending his filing an appeal in the 4th Circuit from last week’s ruling by the District Court in Condon v. Haley.  As soon as he received the 4th Circuit’s order turning down his request, Wilson filed an “emergency application” with Chief Justice John Roberts seeking a stay from the Supreme Court.  Meanwhile, U.S. District Judge J. Michelle Childs issued her ruling on a pending summary judgment motion in Bradacs v. Haley, a marriage recognition case, holding the state’s refusal to recognize same-sex marriages performed in other jurisdictions to be unconstitutional.  The South Carolina Supreme Court had previously blocked the issuance of marriage licenses in the state to same-sex couples pending a ruling by Judge Childs, so her decision, in combination with the 4th Circuit denial of a stay in the Condon case and the lack of any immediate Supreme Court response to Wilson’s application, combined to bring marriage equality to South Carolina beginning on November 19.

There was another important development on November 18.  The 9th Circuit Court of Appeals posted a brief statement on the webpage it had opened up for developments in Hamby v. Parnell, Alaska’s appeal of a December 13 marriage equality ruling.  The state had requested that its appeal go directly to an en banc panel, bypassing the usual three-judge panel, as a three-judge panel would have been bound by the Circuit’s ruling in Latta v. Otter (as to which a petition for rehearing en banc filed by Idaho Governor Butch Otter is pending before the court).  The notice stated: “No active judge has requested a vote to hear this case initially en banc within the time allowed by General Order 5.2a.  The request is therefore denied.”  A briefing schedule order previously issued by the court suggests that the case will not be ready for oral argument until sometime in the spring.  This may also foreshadow a denial of Governor Otter’s pending petition for en banc review.

But that’s not all for November 18.  Also heard from that date was the Kansas Supreme Court, with a ruling in State v. Moriarty, a lawsuit instigated by Kansas Attorney General Derek Schmidt against 10th Judicial District Chief Judge Kevin P. Moriarty, who had responded the U.S. Supreme Court’s refusal to review the 10th Circuit marriage equality cases by deciding that because Kansas was in the 10th Circuit its ban on same-sex marriages was unconstitutional; thus, Moriarty ordered that clerks under his jurisdiction should begin issuing marriage licenses to same-sex couples.  Schmidt vociferously disagreed, taking the position that Kansas was entitled to its day in court on the constitutionality of its own marriage ban, even though the Kansas ban does not differ in any constitutionally material respect from the bans struck down in Utah and Oklahoma by the 10th Circuit.  Federalism, federalism! cried Schmidt.  The Kansas Supreme Court had responded to Schmidt’s suit by putting a temporary hold on Moriarty’s order.  On November 18, the court issued a somewhat ambiguous decision.  It seems that a federal district court ruled on November 4 that the Kansas ban was unconstitutional, the 10th Circuit had refused to stay that ruling, and the Supreme Court had denied an emergency application by the state for a stay pending appeal to the 10th Circuit.  But the district court’s preliminary injunction in that case specifically named only the clerks in two counties who were named defendants, and Schmidt took the position that no other clerks in the state were bound to issue licenses.  The Kansas Supreme Court’s November 18 decision lifted its temporary stay against Judge Moriarty’s order, but without taking a position on whether the U.S. District Court’s ruling was binding on all Kansas judicial district clerks, while noting of course that a state official, the Secretary of Health and Environment, was also a defendant in the federal case.  By the end of the week there was considerable confusion in Kansas, as many clerks were issuing licenses, others were not, and various state agencies were taking the position that until there was a final appellate resolution of the federal case, they were taking their marching orders from Attorney General Schmidt to deny recognition to same-sex marriages for purposes of state law.  This prompted an announcement by the ACLU that it was considering amending its lawsuit before U.S. District Judge Daniel Crabtree to seek a broader preliminary injunction ordering the state to recognize the marriages.  The Kansas Supreme Court made clear in its November 18 decision that same-sex couples who obtained a valid marriage license from a clerk in the counties that were issuing them could have their marriages performed anywhere in the state — just to muddy the waters further.

Wednesday – November 19.  On this date it was Montana’s turn. . .  Montana was the last state within the jurisdiction of the 9th Circuit that lacked a district court marriage equality ruling, until District Judge Brian Morris issued his Order in Rolando v. Fox, holding that the state’s same-sex marriage ban was unconstitutional, and issuing an injunction to “take effect immediately” requiring the state to allow same-sex couples to marry.  Realizing that filing a stay application would be futile, Attorney General Tim Fox immediately filed a notice of appeal with the 9th Circuit while same-sex marriages commenced in the state.  The 9th Circuit issued a briefing schedule under which an oral argument will not happen before April or later.

Thursday – November 20.  Lambda Legal, representing plaintiffs in the Louisiana marriage case, in which an appeal was already pending before the 5th Circuit with oral argument scheduled to take place in tandem with the state of Texas’s appeal from a decision rendered last spring, filed a cert petition with the Supreme Court, asking that Court to by-pass the 5th Circuit and take Lambda’s appeal from District Judge Feldman’s decision directly.  Lambda pointed out in its petition that there is already a circuit split, so no need to prolong things with arguments in more circuits.   It’s time for the Supreme Court to step in and make a nationally-binding decision.  (The other circuits in which appeals are pending are the 11th [Florida], the 8th [Missouri] and the 1st [Puerto Rico].)  Lambda also pointed out that granting cert in both the Louisiana case and one of the 6th Circuit cases would bring into play an unbroken string of states from the southern to the northern borders of the United States.  Later in the day, the Supreme Court posted its response to South Carolina Attorney General Wilson’s application for a stay.  The Court denied the application, noting that Justices Scalia and Thomas would have granted it.

Neither Scalia nor Thomas amplified their opposition with any written statement, but Thomas had gone on record as disagreeing with the Court’s decision to deny all the pending marriage equality certiorari petitions on October 6 when he filed a dissent from a denial of cert in an unrelated case, arguing that the Court needn’t wait for a circuit split in order to deal with questions of national importance from the lower courts, and citing the marriage petitions as examples of his point.

Also on November 20, the Arkansas Supreme Court heard arguments in the state’s appeal of Judge Chris Piazza’s ruling invalidating the Arkansas same-sex marriage ban from earlier in the year, and given the speed with which things are moving, a decision would be expected shortly.

Thus, as the busy week ended, the count of marriage equality states was continuing to trend upwards towards and beyond 35, even in the wake of the 6th Circuit’s anti-marriage-equality ruling, which seemed to have had little effect on the district courts that issued decisions this week.

 

Marriage Equality: The Day After and the Sequels

Posted on: October 8th, 2014 by Art Leonard No Comments

The day after the U.S. Supreme Court refused to review pro-marriage equality rulings by three federal courts of appeals in four cases directly affecting the marriage bans in five states, another circuit was heard from.  A unanimous three-judge panel of the San Francisco-based 9th Circuit Court of Appeals ruled on October 7 in favor of marriage equality in cases from Nevada and Idaho.  Writing for the panel, Circuit Judge Stephen Reinhardt, who was appointed to the court by Jimmy Carter, found that the marriage bans failed to meet the 9th Circuit’s heightened scrutiny standard. Later on  October 7th the court exercised its discretion to issue its mandate to the two district courts, declaring its decision immediately effective.  Latta v. Otter, 2014 Westlaw 4977682.

Nevada officials quickly fell into line.  Governor Brian Sandoval had concluded earlier in the year that the Nevada marriage ban was no longer defensible, so the state did not defend its law before the Court of Appeals, leaving it to an intervening anti-marriage-equality group called “Coalition for the Protection of Marriage” to mount the defense.  That group signed up Idaho’s attorney to represent them.  In light of this, Sandoval was ready to have the state comply with the order, with marriages starting right away.  The Coalition for the Protection of Marriage undoubtedly lacks standing to file its own appeal, in light of the state government’s decision not to do so and the lack of any Nevada law authorizing private groups to represent the state in federal litigation.  Any argument to the contrary by the Coalition would undoubtedly meet defeat because of the way the Supreme Court handled the Proposition 8 case in 2013, finding that proponents of the California anti-marriage initiative lacked standing to appeal a lower court ruling to the 9th Circuit or the Supreme Court.

Idaho was a different story, however, as Governor Butch Otter authorized attorney Gene Schaerr, a Washington-based Supreme Court litigator, to file an emergency application for a stay pending appeal with the 9th Circuit and with the Supreme Court.  Otter’s Supreme Court application, filed on Wednesday morning, October 8, was addressed to Justice Anthony Kennedy, who receives such petitions from the 9th Circuit.  Kennedy quickly granted a temporary stay, giving the plaintiffs until 5 pm on October 9 to respond, and he was expected to refer the application to the full court.   Schaerr’s application said that Idaho would be filing a petition for certiorari, asking the Court to address two questions: whether sexual orientation discrimination is subject to heightened scrutiny, and whether bans on same-sex marriage are actually a form of sexual orientation discrimination.  Schaerr suggested in his application that the Court could address both of these questions without rendering a final decision on whether same-sex couples have a right to marry, and if the Court found that the 9th Circuit panel erred as to either one, it could send the case back to the 9th Circuit for reconsideration.  This would kick the can down the road substantially, putting off a final decision in Idaho for a year or more.

Because the 9th Circuit had consolidated the two cases for decision, there was a single mandate, and Justice Kennedy’s Order referenced the docket numbers of both cases, so technically the mandate was stayed for both Nevada and Idaho, but as a practical matter Nevada was not planning to appeal, so the stay did not interfere with marriages in Nevada.  [Later in the day, responding to a request for clarification by Lambda Legal, which represents the Nevada plaintiffs, Kennedy issued a revised order, staying the 9th Circuit mandate ONLY as it applies to Idaho.  No stay for Nevada, so no interference with implementation of the decision in Nevada.]

The Supreme Court may respond quickly to this application, since it dismissed seven certiorari petitions just days ago, lifting stays in four very similar cases.  The most widespread interpretation of the Supreme Court’s unexplained dismissals was that the four members of the Court most opposed to same-sex marriage would not hear the cases for fear that Justice Kennedy would join with other marriage-equality supporters to establish a nationwide precedent, and that the members who favored marriage equality saw no urgency to address the issue as long as the courts of appeals were ruling in favor of marriage equality.  On that reading, it seems likely that the Court would deny the stay unless a majority of the Justices are taken with Schaerr’s argument that the Court should address the doctrinal circuit court splits before allowing marriage equality to spread further.  It takes a majority vote to grant a stay.

“We hold,” wrote Reinhardt for the 9th Circuit panel, “that the Idaho and Nevada laws at issue violate the Equal Protection Clause of the Fourteenth Amendment because they deny lesbians and gays who wish to marry persons of the same sex a right they afford to individuals who wish to marry persons of the opposite sex, and do not satisfy the heightened scrutiny standard we adopted in SmithKline.”

SmithKline v. Abbott Laboratories is a case decided by the 9th Circuit on January 21 of this year, holding that a person could not be struck from a jury list just because they are lesbian or gay.  In that opinion, the court of appeals concluded that the Supreme Court’s 2013 decision striking down Section 3 of the Defense of Marriage Act had effectively applied heightened scrutiny by placing the burden on the government to justify unequal treatment of same-sex marriages under DOMA.  Supreme Court precedents provide that if a particular basis for discrimination requires heightened scrutiny, then it can’t be used to strike somebody from a jury list without an individualized showing that the person can render impartial jury service in the particular case.

Reinhardt found that Nevada and Idaho had failed to meet this test.  Although his analysis followed along what are now very familiar lines from the prior court of appeals opinions, one footnote jumped out as particularly quotable, referring to Governor Otter’s argument that same-sex marriage would contribute to a “shift towards a consent-based, personal relationship model of marriage, which is more adult-centric and less child-centric.”  Commented Reinhardt: “He also states, in conclusory fashion, that allowing same-sex marriage will lead opposite-sex couples to abuse alcohol and drugs, engage in extramarital affairs, take on demanding work schedules, and participate in time-consuming hobbies.  We seriously doubt that allowing committed same-sex couples to settle down in legally recognized marriages will drive opposite-sex couples to sex, drugs, and rock-and-roll.”  Some wit!

Because he was applying the heightened scrutiny test, Judge Reinhardt did not opine directly as to whether the marriage bans lacked a rational basis.  About the closest he came was to say that “defendants have failed to demonstrate that these laws further any legitimate purpose,” so “they unjustifiably discriminate on the basis of sexual orientation, and are in violation of the Equal Protection Clause.”

Thus, the panel affirmed the decision from Idaho and reversed the decision from Nevada, sending the Nevada case back to the district court “for the prompt issuance of an injunction.”  There was no need for a similar order concerning Idaho, since the trial court had already issued an injunction whose effect was stayed until the 9th Circuit could rule.  The 9th Circuit’s ruling effectively lifted that stay.

Although the other judges on the marriage panel joined Judge Reinhardt’s opinion, one of them, Clinton-appointee Marsha Berzon, wrote a concurring opinion, arguing that the case could alternatively be decided as a sex discrimination case.  Under Supreme Court precedents, sex discrimination cases merit heightened scrutiny.  Of course, applying heightened scrutiny led Berzon to the same conclusion reached by the entire panel on the merits.  But she focused her analysis on a point that was only briefly mentioned by the full panel decision: that Monte Neil Stewart, the attorney who argued in defense of the Idaho and Nevada laws, had advanced as his central argument one that relied heavily on stereotypes about the roles of men and women when it comes to raising children.  The Supreme Court’s sex discrimination jurisprudence sharply rejects any policy that relies on stereotypes about men and women.  Judge Berzon’s opinion runs through a litany of major Supreme Court cases that rejected sex stereotypes in a wide variety of factual contexts, and she found that they were no more a legitimate basis for policymaking in this case.

Finally, and perhaps surprisingly, Judge Reinhardt released his own separate concurring opinion, of course agreeing with the opinion he wrote for the panel but adding his view that this case also involved the fundamental constitutional right to marry, and thus could have been decided as a Due Process case using the strict scrutiny standard that the Supreme Court applies when it is faced with a law that abridges a fundamental right.  Fundamental rights are those that are deeply embedded in our history and tradition.  Opponents of marriage equality have argued that since same-sex marriage is a very new phenomenon, it cannot be considered a fundamental right.  Judge Reinhardt agreed with the plaintiffs in these cases that the opponents have framed the fundamental rights question too narrowly, and he referred to the Supreme Court’s 2003 decision striking down the Texas sodomy law, in which Justice Anthony Kennedy made a similar point in criticizing the Supreme Court’s notorious 1986 Georgia sodomy law decision, Bowers v. Hardwick, for defining too narrowly the right at issue.  Reinhardt concluded that the right to marry recognized by the Supreme Court broadly encompasses the issue of choice of marital partner and is not narrowly focused on different-sex couples.  He invoked a series of Supreme Court marriage decisions that found a right to marry in situations where couples could not engage in procreative activity, thus undermining the defendants’ argument that procreative potential is the defining characteristic of marriage.

However, neither Judge Berzon’s sex discrimination argument nor Judge Reinhardt’s fundamental rights argument won agreement from the other judges on the panel.  (The third judge, Clinton-appointee Ronald Gould, did not write a separate opinion.)  Therefore, the decision of the panel as such is based solely on sexual orientation discrimination.

The 9th Circuit’s SmithKline decision was not tested by en banc review or Supreme Court review, as the losing party in that appeal, Abbott Laboratories, decided not to take the case further on that question.  Thus, although it is a binding 9th Circuit precedent, it appears to be an outlier as a matter of federal constitutional law.  The 2nd Circuit adopted a heightened scrutiny standard when it was reviewing the DOMA case, but the Supreme Court did not specifically endorse that aspect of the ruling when it affirmed the 2nd Circuit’s decision to strike down Section 3 of DOMA.  The 1st Circuit had used the rational basis test to strike down the same provision of DOMA in a separate case from Massachusetts.  And, as Gene Schaerr, the attorney hired by Idaho to represent it in the Supreme Court, observed in the application for a stay, the 4th, 5th, 6th, 8th, 10th, 11th, D.C. and Federal circuits have all adopted the rational basis standard for evaluating sexual orientation discrimination claims.

Thus, although it might seem far-fetched that Idaho could get a stay pending appeal and perhaps a grant of Supreme Court review when that Court had turned down seven petitions just days before, there was an outside chance that Schaerr’s strategy would pay-off, intriguing enough justices to induce them to delay the implementation of this ruling while they decide whether to grant a petition for certiorari from Idaho.

Meanwhile, the Supreme Court “decision not to decide” on October 6 and the 9th Circuit’s decision on October 7 were having immediate effects.  In Colorado, a state in the 10th Circuit where the attorney general, John Suthers, had filed an appeal of a district court pro-marriage-equality decision, the writing on the wall was apparent to Suthers, who joined with marriage equality plaintiffs to get existing stays lifted and advised clerks throughout the state on October 7 to start issuing marriage licenses to same-sex couples.  When Colorado is added to the five states directly affected by the denials of certiorari, six states were added to the 19 (plus District of Columbia) where same-sex marriage is allowed and recognized.  Elsewhere in the 10th Circuit, state authorities in Wyoming and Kansas did not seem inclined to throw in the towel, and existing lawsuits will continue to be defended.

In the 4th Circuit, Virginia Governor Terry McAuliffe issued an executive order on October 7 directing that “all entities in the executive branch, including agencies, authorities, commissions, departments, and all institutions of higher education further evaluate all policies and take all necessary and appropriate legal measures to comply” with the 4th Circuit’s decision, which held that the state’s ban on same-sex marriages unconstitutionally violates a fundamental right to marry.  This would mean, for example, that state employees with same-sex spouses should be able to enroll them immediately for employee benefits coverage.  Elsewhere in the 4th Circuit, federal trial judges asked the parties in pending lawsuits in West Virginia, North Carolina and South Carolina to file papers giving their positions on how the cases should proceed.  In North Carolina, the attorney general had already indicated that he would no longer defend the state’s ban.  In South Carolina, although the attorney general was talking tough about soldiering on with the defense, at least one county probate judge began issuing marriage licenses on October 7.

In the 9th Circuit, there are federal marriage equality cases pending in Arizona, Alaska and Montana, and it seemed likely that those will proceed to summary judgments for the plaintiffs quickly unless the Supreme Court grants a stay pending appeal of the 9th Circuit’s decision, in which cases the judges might decide to delay their rulings and see what happens with Idaho’s anticipated petition for certiorari.

And, of course, still to be heard from were the 6th Circuit, where arguments on appeals from four states were heard early in August, and the 5th and 11th Circuits, where appeals from Louisiana, Texas and Florida are pending but arguments haven’t been scheduled yet.  In the Louisiana appeal in the 5th Circuit, Lambda Legal has accepted an invitation to join as co-counsel with the local attorneys representing the plaintiffs.

The 9th Circuit’s October 7 opinion listed an army of attorneys participating as co-counsel or amicus on all sides of the cases, which had been argued on September 8.  As noted above, Monte Neil Stewart argued on behalf of the Idaho defendants and the Coalition defending the Nevada ban.  Tara Borelli of Lambda Legal’s Atlanta office argued on behalf of the Nevada plaintiffs.  Deborah Ferguson, a Boise attorney, argued on behalf of the Idaho plaintiffs.

9th Circuit Panels Rule on Idaho Stay & California Campaign Disclosure Rules

Posted on: May 21st, 2014 by Art Leonard No Comments

Three-judge panels of the San Francisco-based U.S. Court of Appeals for the 9th Circuit issued two rulings of some consequence from the perspective of LGBT rights on May 20. In one, the court delayed implementation of U.S. Magistrate Candy Dale’s ruling striking Idaho’s ban on same-sex marriages while expediting the court’s consideration of the merit’s of Idaho’s appeal of that ruling. In the other, the court rejected a challenge by Prop 8 Committees (organizations formed to support the enactment of California Proposition 8 in the 2008 elections) to California’s law requiring such committees to disclose the identity of their donors.

In Latta v. Otter, Magistrate Dale ruled on May 13 that Idaho’s refusal to allow same-sex couples to marry, or to recognize the out-of-state marriages of same-sex couples, violates the 14th Amendment. Magistrate Dale ordered that the state cease enforcing the same-sex marriage ban as of 9 a.m. on May 16, and she subsequently denied a petition by Governor Butch Otter to stay her ruling while the state appealed to the 9th Circuit. Governor Otter then applied directly to the 9th Circuit, which issued a temporary stay while it considered whether to stay the order until a merits panel could hear and decide the state’s appeal of Dale’s Order. On May 20, the 9th Circuit granted Otter’s petition, citing the Supreme Court’s action of January 6, 2014, when it granted Utah Governor Gary Herbert’s petition to stay a marriage equality ruling by U.S. District Judge Robert Shelby, which the state was appealing to the 10th Circuit.

However, implicitly acknowledging the urgency of plaintiffs’ quest for the right to marry or have their marriages recognized, the court scuttled its original usual briefing schedule for the appeal, and set tight deadlines, specifying that neither party could ask for time extensions on the deadlines. The court set a schedule under which briefing will be completed by the end of July, and specified that the case should be argued during the week of September 8. Although that sounds rather far off, it is actually a relatively speedy schedule for a federal appeals court.

Although the panel did not offer an explanation for its actions, one of its members, Judge Andrew D. Hurwitz, an Obama appointee and the junior member of the three-judge panel, issued a concurring opinion explaining why he agreed with the panel’s action. Referring to the Utah stay, he said that the Supreme Court “has virtually instructed courts of appeals to grant stays in the circumstances before us today,” but said that “if we were writing on a cleaner slate,” he would conclude that the usual factors applied by courts to deciding applications to stay trial court decisions “counsels against the stay requested by the Idaho appellants.” (The appellants in this case are Governor Otter and other state officials sued in the trial court.)

Hurwitz explained further, “It is almost certain that the Supreme Court will eventually resolve the merits of this appeal, and I do not venture to predict the Court’s ultimate conclusion. But, in light of this court’s recent decision in SmithKline Beecham v. Abbott Laboratories, 740 F.3d 471 (9th Cir. 2014), I find it difficult to conclude that the Idaho ban on same-sex marriage would survive interim Ninth Circuit review.” Since the first factor courts consider in deciding whether to grant a petition for a stay is whether the party requesting the stay has made a “strong showing” that it will prevail on appeal, and the SmithKline court ruled that “heightened scrutiny” applies in judicial review of laws that discriminate based on sexual orientation, “it is difficult to see how the Idaho appellants can make a ‘strong showing’ that they will prevail in their defense of a measure that denies the individual appellees the right to marry because of their sexual orientation.”

Hurwitz also noted that the balance of harms as between appellant and appellees definitely favors the appellees, who oppose the stay, and that he would not find that the public interest supported issuing a stay. “I cannot identify any relevant differences between the situation before us today” and the Utah case, he wrote. Even though the Supreme Court’s stay in the Utah case is not “precedential” in “the strictest sense,” he concluded, “it provides a clear message — the Court (without noted dissent) decided that district court injunctions against the application of laws forbidding same-sex unions should be stayed at the request of state authorities pending court of appeals review.”

Hurwitz’s explanation suggests that if Pennsylvania Governor Tom Corbett were to seek a stay of U.S. District Judge John E. Jones III’s order ending the ban on same-sex marriages in Pennsylvania, he would undoubtedly get a stay from the 3rd Circuit.

But it suggests something else as to which observers are eager for some sort of intelligence: whether the 9th Circuit is going to hold an en banc reconsideration of the SmithKline decision. Anybody inclined to try to read tea leaves might note that Hurwitz refers to SmithKline as if it is settled law in the 9th Circuit, unlike Oregon U.S. District Judge Michael McShane, who decided not to rely upon it in his ruling on May 19 in Geiger v. Kitzhaber, because the SmithKline panel had not issued its mandate to the parties and the 9th Circuit had not yet announced the result of its internal poll of judges to determine whether to hold an en banc reconsideration. An announcement of en banc review would effectively cancel the panel decision as a precedent; if such review were likely to be granted, Judge Hurwitz surely would not rely on the panel decision in his prognostication about how Idaho’s appeal is likely to fare in the 9th Circuit.

The 9th Circuit’s ruling in ProtectMarriage.com-Yes on 8 v. Bowen, also announced May 20, was not unexpected. The court affirmed a ruling by Chief Judge Morrison C. England, Jr., of the Eastern District of California, which had rejected a 1st Amendment challenge to the state’s disclosure statute as it applied to a controversial ballot initiative. ProtectMarriage’s challenge specifically focused on the post-election reporting of donors during the short period immediately before the vote, arguing that post-election reports are unnecessary to serve the purpose of letting voters know who is behind a ballot question before they vote. The court pointed out that this is not the only purpose of the reporting requirements. They are also intended to “preserve the integrity of the electoral process by deterring corruption and the appearance of corruption,” and to “permit accurate record-keeping” in order to “enhance the public’s future associational rights by offering voters information about which policies those seeking their vote have previously endorsed.” The court pointed out that the Supreme Court has rejected facial challenges to contribution disclosure requirements in several cases, “holding that these substantial interests outweigh the modest burdens that the challenged disclosures impose on First Amendment rights.”

ProtectMarriage also sought to have the court order California officials to end continuing public access to this information. The trial court had rejected that demand, citing the same considerations that support the disclosure requirement in the first place, but the 9th Circuit panel decided that the trial judge should not have ruled on this question because the passage of time had rendered it “moot.” That is, the information has been publicly available both on-line and in hard copy for more than five years, so the court could not see how it could now be treated other than as publicly-known information. The court directed the trial court to vacate the part of its opinion dealing with this issue, with one judge dissenting on the point.