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United States Supreme Court Refuses to Review Transgender Bathroom Case from Boyertown, Pennsylvania

Posted on: May 28th, 2019 by Art Leonard No Comments

The Supreme Court announced on May 28 that it will not review a decision by the Philadelphia-based 3rd Circuit Court of Appeals, which had rejected a constitutional and statutory challenge by cisgender students at Boyertown (Pennsylvania) Senior High School, who were upset that the School District decided to let transgender students use facilities consistent with their gender identity.  Doe v. Boyertown Area School District & Pennsylvania Youth Congress Foundation, 897 F.3d 518 (3rd Cir. 2018), cert. denied, 2019 WL 2257330 (May 28, 2019).

The federal lawsuit stemmed from a decision in 2016 by the School District to permit transgender students to use restrooms and locker rooms consistent with their gender identity.  Alliance Defending Freedom (ADF) and local attorneys affiliated with the Independence Law Center in Harrisburg filed suit on behalf of several cisgender students, proceeding under pseudonyms, contending that this decision violated their rights on three theories: constitutional right of bodily privacy under the 14th Amendment, creation of a “hostile environment” in violation of Title IX of the Education Amendments of 1972, which bans sex discrimination by schools that get federal funds, and violation of the right of privacy under Pennsylvania state common law.  Upon filing their complaint, the plaintiffs asked U.S. District Judge Edward G. Smith (E.D. Pa.) to issue a preliminary injunction to block the school district’s policy while the case was pending.

Lawyers for the American Civil Liberties Union of Pennsylvania and the ACLU’s National LGBT Rights Project joined the case, representing the Pennsylvania Youth Congress Foundation, which intervened as a co-defendant to help the School District defend its policy.

This case is part of a national campaign by ADF to preserve and defend restrictions on restroom and locker room use by transgender students, part of ADF’s overall goal – consistent with the Trump Administration’s anti-transgender policies – to deprive transgender people of any protection under federal law.  So far, ADF has lost a succession of “bathroom” cases, and the 3rd Circuit’s ruling in this case was one of its most notable defeats.  At the same time, however, the Education Department under the leadership of Trump’s appointee, Betsy De Vos, has reversed the Obama Administration’s policy and now refuses to investigate discrimination claims by transgender students under Title IX, leaving it up to individuals to file lawsuits seeking protection under the statute.

Judge Smith refused to issue the requested preliminary injunction on August 25, 2017, 276 F. Supp. 3d 324, writing an extensive decision that concluded that the plaintiffs were unlikely to prevail on the merits of any of their theories, and that mere exposure to transgender students was not going to impose an irreparable injury on them anyway.   Judge Smith was appointed by President Barack Obama in 2013, but it was noteworthy that at his Senate confirmation vote, he received more votes from Republican Senators than Democratic Senators.

Plaintiffs appealed to the 3rd Circuit, and suffered a loss before a unanimous three judge panel, which issued its decision on June 18, 2018.  The opinion was written by Circuit Judge Theodore McKee, who was appointed by President Bill Clinton.  The other judges on the panel were Circuit Judge Patty Shwartz, who was appointed by President Obama to fill the vacancy created by Circuit Judge Marion Trump Barry, President Trump’s sister, when she took senior status; and Senior Circuit Judge Richard Nygaard, who was appointed by President Ronald Reagan.

Judge McKee’s opinion set the stage with an extended discussion of gender identity based on the expert testimony offered by defendants in opposition to the motion for preliminary relief, including a much-cited amicus brief by the American Academy of Pediatrics and the American Medical Association, which stated that policies excluding transgender students from “privacy facilities” consistent with their gender identities “have detrimental effects on the physical and mental health, safety, and well-being of transgender individuals.”  Judge McKee also quoted from an amicus brief filed by National PTA and Gay-Lesbian-Straight Education Network (GLSEN), that forcing transgender students to use bathrooms or locker rooms that don’t match their gender identity causes “severe psychological distress often leading to attempted suicide.”  In other words, the starting point for the court’s discussion was that the School District’s policy was responding to a serious problem faced by transgender students.

The court noted that as part of its policy the School District had renovated its “privacy facilities” to increase the privacy of individual users, and had provided single-user restrooms open to any student so that students who did not want to share facilities with others because of their gender identity would not be forced to do so.   The District also required that students claiming to be transgender meet with counselors trained to address the issue, and go through a process of being approved to use facilities consistent with their gender identity.  “Once a transgender student was approved to use the bathroom or locker room that aligned with his or her gender identity,” wrote Judge McKee, “the student was required to use only those facilities,” although any student was allowed to use the single-user restrooms.  “The student could no longer use the facilities corresponding to that student’s birth sex.”

The plaintiffs claimed that their right to privacy was violated because the school’s policy permitted them to be viewed by members of the opposite sex while partially clothed.  The 3rd Circuit found that Judge Smith “correctly found that this would not give rise to a constitutional violation because the School District’s policy served a compelling interest – to prevent discrimination against transgender students – and was narrowly tailored to that interest.”  The court pointed out that privacy rights under the Constitution are not absolute.  Furthermore, wrote McKee, “the School District’s policy fosters an environment of inclusivity, acceptance, and tolerance,” and that, as the National Education Association’s amicus brief “convincingly explains, these values serve an important educational function for both transgender and cisgender students.”

While the court empathized with cisgender students who experienced “surprise” at finding themselves “in an intimate space with a student they understood was of the opposite biological sex” – an experience specifically evoked in the plaintiffs’ brief in support of their motion – the court said, “We cannot, however, equate the situation the appellants now face with the very drastic consequences that the transgender students must endure if the school were to ignore the latter’s needs and concerns.”  And, the court pointed out, cisgender students “who feel that they must try to limit trips to the restroom to avoid contact with transgender students can use the single-user bathrooms in the school.”  The court rejected plaintiffs’ argument that the best solution to the issue was to require transgender students to use the handful of single-user restrooms, finding that this would “significantly undermine” the District’s compelling interest in treating transgender students in a non-discriminatory manner.

The court also pointed out that the plaintiffs’ privacy arguments sought to push that doctrine far beyond anything supported by existing case law. The court rejected analogies to cases involving inappropriate strip searches and peeping toms.  “Those cases involve inappropriate conduct as well as conduct that intruded into far more intimate aspects of human affairs than here.  There is simply nothing inappropriate about transgender students using the restrooms or locker rooms that correspond to their gender identity” under the School District’s policy, insisted the court, which also found that the “encounters” described by the plaintiffs did not involve transgender students doing “anything remotely out of the ordinary” while using the “privacy facilities” at the school.

As a result of these findings, the court concluded that the plaintiffs were unlikely to succeed on the merits of their privacy claims under Title IX, the Constitution, or Pennsylvania tort law.  Further, looking to “hostile environment sex discrimination” claims under Title IX (and the more developed hostile environment case law under Title VII of the Civil Rights Act of 1964, which covers employment discrimination and serves as a resource for courts interpreting Title IX), the court found that the possibility of encountering transgender students in a restroom failed to meet the high test set by the courts of “sexual harassment that is so severe, pervasive, or objectively offensive and that so undermines and detracts from the victims’ educational experience that he or she is effectively denied equal access to an institution’s resources and opportunities.”  The possibility of occasionally encountering one of a handful of transgender students in a “privacy facility” fell far short of meeting that test.

Furthermore, the court found that the District’s policy was “sex-neutral” in that it applied to everybody, and asserted that plaintiffs had not “provided any authority” for the proposition that a “sex-neutral policy” would violate Title IX.  “The School District’s policy allows all students to use bathrooms and locker rooms that align with their gender identity,” wrote McKee. “It does not discriminate based on sex, and therefore does not violate Title IX.”

The court drew support for its conclusion from the Chicago-based 7th Circuit Court of Appeals ruling in Ash Whitaker’s lawsuit against the Kenosha, Wisconsin, school district, where the court found that excluding a transgender boy from using the boys’ restroom facilities did violate Title IX.  See Whitaker v. Kenosha Unified School District No. 1 Board of Education, 858 F.3d 1034 (7th Cir. 2017). Consistent with that ruling, the Boyertown School District’s policy could be seen as mandated by its obligation under Title IX to provide equal educational access and opportunities to transgender students.  The court also noted transgender rights rulings by the 1st, 6th, 9th and 11th Circuits, concluding that anti-transgender discrimination in a variety of contexts violates federal laws forbidding sex discrimination.  There is an emerging consensus among federal courts of appeals along these lines.  The validity of this reasoning will be up for Supreme Court debate next Term when the Court reviews the 6th Circuit’s decision in favor of Aimee Stephens, the transgender employment discrimination plaintiff in the Harris Funeral Homes case, to be argued in the fall.

The plaintiff’s petition to the Supreme Court to review the Boyertown decision posed two questions to the Court: “Whether a public school has a compelling interest in authorizing students who believe themselves to be members of the opposite sex to use locker rooms and restrooms reserved exclusively for the opposite sex, and whether such a policy is narrowly tailored,” and “Whether the Boyertown policy constructively denies access to locker room and restroom facilities under Title IX ‘on the basis of sex.’”  These questions were phrased by ADF to incorporate its religiously-based beliefs seeking to discredit the reality of transgender existence, similar to attempts by the Trump Administration in its proposed regulations and policy statements.  If the Court had been tempted to grant this petition, it would likely have reworded the “Questions Presented,” as it pointedly did when it granted ADF’s petition to review the Harris Funeral Homes decision on April 22.

Although the decision not to review a court of appeals case does not constitute a ruling on the merits by the Supreme Court and does not establish a binding precedent on lower courts, it sends a signal to the lower courts, the practicing bar, and the parties.  In this case, the signal is important for school districts to hear as they try to navigate between the rulings by courts in favor of transgender student claims and the Trump Administration’s reversal of Obama Administration policy on this issue.  The question whether Title IX mandates the Boyertown School District’s access policy was not squarely before the Court in this case, and the justices may have denied review because they were already committed to consider whether federal sex discrimination laws cover gender identity discrimination in the Harris Funeral Homes case.

The Court normally provides no explanation why it grants or denies a petition for review although, interestingly, in another announcement on May 28, the Court did provide such a rare explanation in Box v. Planned Parenthood of Indiana and Kentucky, 2019 WL 2257160 (Sup. Ct., May 28, 2019).  In Box, the Court denied review of a decision by the 7th Circuit striking down on constitutional grounds an Indiana law that prohibits health care providers from providing abortions that are motivated solely by the sex, race or disability of the fetus, stating: “Only the Seventh Circuit has thus far addressed this kind of law.  We follow our ordinary practice of denying petitions insofar as they raise legal issues that have not been considered by additional Courts of Appeals.”  The implication for the Boyertown case is that the 3rd Circuit opinion may have been denied review because it was the only federal appeals court ruling to address the precise question before the Court.

Federal Court Rejects Christian Agency’s Claimed Constitutional Right to Discriminate Against Same-Sex Couples Seeking to Adopt Children

Posted on: May 27th, 2019 by Art Leonard No Comments

U.S. District Judge Mae A. D’Agostino has rejected a Christian social welfare agency’s bid to be exempted from complying with non-discrimination regulations promulgated by the New York Office of Children and Family Services (OCFS).  Ruling on May 16 in New Hope Family Services, Inc. v. Poole, 2019 WL 2138355, 2019 U.S. Dist. LEXIS 2138355 (N.D.N.Y.), the court rejected a variety of constitutional arguments advances by the plaintiff in support of its claim of a constitutional right to discriminate against same-sex couples seeking to adopt children.

The plaintiff, New Hope Family Services, is an “authorized agency” with the authority to “place out or to board out children” and “receive children for purposes of adoption” under the New York Social Services Law and regulations adopted by the Office of Children and Family Services.  Under the law, the agency must “submit and consent to the approval, visitation, inspection and supervision” of OCFS, which must approve the agency’s certificate of incorporation.  Pastor Clinton H. Tasker founded New Hope in 1958 “as a Christian ministry to care for and find adoptive homes for children whose birth parents could not care for them,” wrote Judge D’Agostino.  Because of its religion beliefs, New Hope “will not recommend or place children with unmarried couples or same sex couples as adoptive parents,” it states in its complaint.  New Hope’s “special circumstances” policy states: “If the person inquiring to adopt is single . . . the Executive Director will talk with them to discern if they are truly single or if they are living together without benefit of marriage… because New Hope is a Christian Ministry it will not place children with those who are living together without the benefit of marriage.  If the person inquiring to adopt is in a marriage with a same sex partners . . . the Executive Director will explain that because New Hope is a Christian Ministry, we do not place children with same sex couples.”

Prior to 2010, New York’s Domestic Relations Law provided that authorized agencies could place children for adoption only with “an adult unmarried person or an adult husband and his adult wife.”  In September 2010, New York amended the law to allow placements with “an adult unmarried person, an adult married couple together, or any two unmarried adult intimate partners together.”  After New York adopted its Marriage Equality law in 2011, OCFS issued a letter on July 11, 2011, stating that the intent of its regulations “is to prohibit discrimination based on sexual orientation in the adopting study assessment process.  In addition, OFCS cannot contemplate any case where the issue of sexual orientation would be a legitimate basis, whether in whole or in part, to deny the application of a person to be an adoptive parent.”  In 2013, the adoption regulations were amended to prohibit outright discrimination “against applicants for adoption services on the basis of race, creed, color, national origin, age, sex, sexual orientation, gender identity or expression, marital status, religion, or disability.”  OCFS followed this up with an “informational letter” in 2016, advising authorized agencies to formalize their non-discrimination policies consistent with the regulations.

In its complaint challenging these developments, New Hope (represented by Alliance Defending Freedom, the anti-LGBT religious litigation group) claims, according to Judge D’Agostino, that the agency promulgated these regulations “purporting to require adoption providers to place children with unmarried and same-sex couples in complete disregard for the law, the scope of OFCS’s authority, and the rights of adoption providers.”

The lawsuit stemmed from action by OFCS, contacting New Hope early in 2018 to inform the agency that “under a new policy implemented in 2018, OFCS would be conducting comprehensive on-site reviews of each private provider’s procedures,” and following up in mid-July with an email to schedule New Hope’s program review, including a list of things that had to be reviewed, including New Hope’s “policies and procedures.”  OFCS requested a copy of New Hope’s formal policies and procedures as part of this review.  Later in 2018, after reading New Hope’s procedures, OFCS Executive Director Suzanne Colligan called New Hope, noting the “special circumstances” provision, and informing new Hope that it would “have to comply” with the regulations “by placing children with unmarried couples and same-sex couples,” and that if New Hope did not comply, it would be “choosing to close.”  New Hope ultimately refused to comply after a series of email and letter exchanges with OFCS.

New Hope filed its complaint on December 6, 2018, claiming 1st and 14th amendment protection for its policies, claiming that OFCS’s interpretation of state law “targets, show hostility toward, and discriminates against New Hope because of its religious beliefs and practices” and also violates New Hope’s freedom of speech.  The complaint also alleged an equal protection violation, and claimed that the state was placing an “unconstitutional condition” by requiring New Hope to comply with the non-discrimination policy in order to remain an “authorized agency.”  The complaint sought preliminary injunctive relief against enforcement of the policy.

New Hope tried to escape the precedent of Employment Division v. Smith, 494 U.S. 872 (1990), which holds that there is no free exercise exemption from complying with neutral state laws of general application, by relying on a statement in Hosannah-Tabor Evangelical Lutheran Church & School v. EEOC, 565 U.S. 171 (2012), in which the Supreme Court held that the 1st Amendment protects religious institutions from government interference in their selection of ministerial personnel.  New Hope argued that “cases teach that even a genuinely ‘neutral law of general applicability’ cannot be applied when to do so would interfere in historically respected areas of religious autonomy.”  New Hope claimed that the state regulation was adopted “for the purpose of targeting faith-based adoption ministries” and thus was “not neutral or generally applicable as applied.”

Judge D’Agostino was not convinced, referring to a decision by the U.S. District Court in Philadelphia rejecting similar arguments by Catholic Social Services in that city in Fulton v. City of Philadelphia, 320 F. Supp. 3d 661 (E.D. Pa. 2019), which has been affirmed by the 3rd Circuit Court of Appeals, 922 F.3d 140 (April 22, 2019).  The judge observed that the courts in the Philadelphia case had found similar requirements under a Philadelphia anti-discrimination ordinance to be “facially neutral and generally applicable” and “rationally related to a number of legitimate government objectives.”  And, she noted, “In affirming the district court, the Third Circuit rejected CSS’s claims that the application of the anti-discrimination clause is impermissible under Smith and its progeny.”  Judge D’Agostino found the 3rd Circuit’s ruling persuasive in this case.

“On its face,” wrote the judge, “18 N.Y.C.R.R. sec. 421.3(d) is generally applicable and it is plainly not the object of the regulation to interfere with New Hope’s, or any other agency’s, exercise of religion.”  She found that the requirement to comply is imposed on all authorized agencies, “regardless of any religious affiliation,” and that it is neutral.  “Nothing before the Court supports the conclusion that section 421.3(d) was drafted or enacted with the object ‘to infringe upon or restrict practices because of their religious motivation.”  The adoption of the requirement was a natural follow-up to the legislature’s passage of a law that codified “the right to adopt by unmarried adult couples and married adult couples regardless of sexual orientation or gender identity.”  The purpose was to prohibit discrimination.

The court also rejected the argument that the regulations are not neutral because they allow agencies to take account of a variety of factors in evaluating proposed adoptive parents, including “the age of the child and of the adoptive parents, the cultural, ethnic, or racial background of the child and the capacity of the adoptive parent to meet the needs of the child with such background as one of a number of factors used to determine best interests.”  As the 3rd Circuit found in Fulton, there is a significant difference between a policy of outright refusal to place children with unmarried or same-sex couples and the application of an evaluative process focusing on the characteristics described in the regulations.  “Further,” wrote D’Agostino, “nothing in the record suggests that OCFS has knowingly permitted any other authorized agency to discriminate against members of a protected class.”

New Hope also argued that the enforcement of the regulation was not neutral, instead evincing hostility against religious agencies such as itself.  Rejecting this argument, the judge wrote, “The fact that New Hope’s conduct springs from sincerely held and strongly felt religious beliefs does not imply that OCFS’s decision to regulate that conduct springs from antipathy to those beliefs,” quoting key language from the 3rd Circuit: “If all comment and action on religiously motivated conduct by those enforcing neutral, generally applicable laws against discrimination is construed as ill will against religious belief itself, then Smith is a dead letter, and the nation’s civil rights laws might be as well.”

The court also rejected New Hope’s argument that the regulation violates the Free Speech clause of the 1st Amendment “insofar as it forces New Hope to change the content of its message” and to affirmatively recommend same-sex couples to be adoptive parents, in effect imposing an “unconstitutional condition” on New Hope.  The essence of the analysis is that designating New Hope an “authorized agency” for this purpose is delegating a governmental function to New Hope, and any speech in which New Hope engages to carry out that function is essentially governmental speech, not New Hope’s private speech as a religious entity.  “Therefore,” she wrote, “OCFS is permitted to ‘take legitimate and appropriate steps to ensure that its message,’ that adoption and foster care services are provided to all New Yorkers consistent with anti-discrimination policy set forth” in the regulation, “was and is ‘neither garbled nor distorted by New Hope.’”  She concludes that “OCFS is not prohibiting New Hope’s ongoing ministry in any way or compelling it to change the message it wishes to convey.  New Hope is not being forced to state that it approves of non-married or same sex couples.  Rather, the only statement being made by approving such couples as adoptive parents is that they satisfy the criteria set forth by the state, without regard to any views as to the marital status or sexual orientation of the couple.”

The court similarly dismissed New Hope’s claim that applying the regulation violated its right of expressive association, rejecting New Hope’s argument that this case is controlled by the Supreme Court’s decision in Boy Scouts of America v. Dale, 530 U.S. 640 (2000), where the court found that the BSA had a 1st Amendment right to dismiss an out gay man from the position of Assistant Scoutmaster, based on the determination by 5 members of the Court that requiring the BSA to allow James Dale to serve would be a form of compelled endorsement of homosexuality.  The Court deemed the BSA an expressive association that had a right to determine its organizational message.  By contrast, found Judge D’Agostino, “New Hope has not alleged facts demonstrating a similar harm that providing adoption services to unmarried or same sex couples would cause to their organization.  New Hope is not being required to hire employees that do not share their same religious values,” she wrote.  “They are not prohibited in any way from continuing to voice their religious ideals.”  And even if the regulation worked “a significant impairment on New Hope’s association rights,” she continued, “the state’s compelling interest in prohibition the discrimination at issue here far exceeds any harm to New Hope’s expressive association.”

The court also found no merit to New Hope’s Equal Protection claim based on a spurious charge of selective enforcement, finding no indication that OCFS was allowing other, non-religious agencies to discriminate while cracking down on New Hope.  As to the “unconstitutional conditions” cause of action, the judge wrote that the court “views New Hope’s unconstitutional conditions claim as a mere repackaging of its various First Amendment claims and, therefore, the Court similarly repackages its resolution of those claims.”

Consequently, the court denied the motion for preliminary injunction, and granted OCFS’s motion to dismiss the case.  ADF will undoubtedly seek to appeal this ruling to the 2nd Circuit.

Supreme Court to Decide Whether Discrimination Because of Sexual Orientation or Gender Identity Violates Title VII’s Ban on Discrimination Because of Sex

Posted on: April 22nd, 2019 by Art Leonard No Comments

The U.S. Supreme Court announced on April 22 that it will consider appeals next term in three cases presenting the question whether Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination because of an individual’s sex, covers claims of discrimination because of sexual orientation or gender identity. Because federal courts tend to follow Title VII precedents when interpreting other federal sex discrimination statutes, such as the Fair Housing Act and Title IX of the Education Amendments of 1972, a ruling in these cases could have wider significance than just employment discrimination claims.

The first Petition for certiorari was filed on behalf of Gerald Lynn Bostock, a gay man who claimed he was fired by the Clayton County, Georgia, Juvenile Court System, for which he worked as Child Welfare Services Coordinator, because of his sexual orientation.  Bostock v. Clayton County Board of Commissioners, No. 17-1618 (filed May 25, 2018).  The trial court dismissed his claim, and the Atlanta-based 11th Circuit Court of Appeals affirmed the dismissal, 723 Fed. Appx. 964 (11th Cir., May 10, 2018), petition for en banc review denied, 894 F.3d 1335 (11th Cir., July 18, 2018), reiterating an old circuit precedent from 1979 that Title VII does not forbid discrimination against homosexuals.

The second Petition was filed by Altitude Express, a now-defunct sky-diving company that discharged Donald Zarda, a gay man, who claimed the discharge was at least in part due to his sexual orientation.  Altitude Express v. Zarda, No. 17-1623 (filed May 29, 2018).  The trial court, applying 2nd Circuit precedents, rejected his Title VII claim, and a jury ruled against him on his New York State Human Rights Law claim.  He appealed to the New York-based 2nd Circuit Court of Appeals, which ultimately ruled en banc that the trial judge should not have dismissed the Title VII claim, because that law applies to sexual orientation discrimination.  Zarda v. Altitude Express, 883 F.3d 100 (2nd Cir., Feb. 26, 2018). This overruled numerous earlier 2nd Circuit decisions.

The third petition was filed by R.G. & G.R. Harris Funeral Homes, three establishments located in Detroit and its suburbs, which discharged a funeral director, William Anthony Beasley Stephens, when Stephens informed the proprietor, Thomas Rost, about her planned transition.   R.G. & G.R. Funeral Homes v EEOC, No. 18-107 (filed July 20, 2018).  Rost stated religious objections to gender transition, claiming protection from liability under the Religious Freedom Restoration Act (RFRA) when the Equal Employment Opportunity Commission sued the funeral home under Title VII.  Stephens, who changed her name to Aimee as part of her transition, intervened as a co-plaintiff in the case.  The trial judge found that Title VII had been violated, but that RFRA protected Harris Funeral Homes from liability.  The Cincinnati-based 6th Circuit Court of Appeals affirmed the trial court’s holding that the funeral home violated Title VII, but reversed the RFRA ruling, finding that complying with Title VII would not substantially burden the funeral home’s free exercise of religion.  EEOC v. R.G. & G.R. Harris Funeral Homes, 884 F.3d 560 (6th Cir., March 7, 2018).  The 6th Circuit’s ruling reaffirmed its 2004 precedent in Smith v. City of Salem, 378 F.3d 566, using a gender stereotyping theory, but also pushed forward to hold directly that gender identity discrimination is a form of sex discrimination under Title VII.

In all three cases, the Court has agreed to consider whether Title VII’s ban on discrimination “because of sex” is limited to discrimination against a person because the person is a man or a woman, or whether, as the EEOC has ruled in several federal employment disputes, it extends to sexual orientation and gender identity discrimination claims.

The question whether the Court would consider these cases has been lingering on its docket almost a year, as the petitions in the Bostock and Zarda cases were filed within days of each other last May, and the funeral home’s petition was filed in July.  The Court originally listed the Bostock and Zarda petitions for consideration during its pre-Term “long conference” at the end of September, but then took them off the conference list at the urging of Alliance Defending Freedom, representing the funeral home, which suggested that the Court should wait until briefing on the funeral home was completed and then take up all three cases together.

The Court returned the petitions to its conference list in December, and the cases were listed continuously since the beginning of this year, sparking speculation about why the Court was delaying, including the possibility that it wanted to put off consideration of this package of controversial cases until its next term, beginning in October 2019.  That makes it likely that the cases will not be argued until next winter, with decisions emerging during the heat of the presidential election campaign next spring, as late as the end of June.

Title VII was adopted as part of the Civil Rights Act of 1964 and went into effect in July 1965.  “Sex” was added as a forbidden ground of discrimination in employment in a floor amendment shortly before House passage of the bill.  The EEOC, originally charged with receiving and investigating employment discrimination charges and attempting to conciliate between the parties, quickly determined that it had no jurisdiction over complaints charging sexual orientation or gender identity discrimination, and federal courts uniformly agreed with the EEOC.

The courts’ attitude began to change after the Supreme Court ruled in 1989 that evidence of sex stereotyping by employers could support a sex discrimination charge under Title VII in the case of Price Waterhouse v. Hopkins, 490 U.S. 228 (plurality opinion by Justice William J. Brennan), and in 1998 in Oncale v. Sundowner Offshore Services, 523 U.S. 75 (opinion by Justice Antonin Scalia), the Court suggested that Title VII could apply to a “same-sex harassment” case.   Justice Scalia stated that Title VII’s application was not limited to the concerns of the legislators who voted for it, but would extend to “comparable evils.”

These two rulings were part of a series of cases in which the Supreme Court took an increasingly flexible approach to interpreting discrimination “because of sex,” which in turn led lower federal courts earlier in this century to reconsider their earlier rulings in LGBT discrimination cases.  Federal appeals court rulings finding protection for transgender plaintiffs relied on Price Waterhouse’s sex stereotyping analysis, eventually leading the EEOC to rule in 2012 that a transgender applicant for a federal job, Mia Macy, could bring a Title VII claim against the federal employer.  Macy v. Holder, 2012 WL 1435995. In 2015, the EEOC extended that analysis to a claim brought by a gay air traffic controller, David Baldwin, against the U.S. Transportation Department, Baldwin v. Foxx, 2015 WL 4397641, and the EEOC has followed up these rulings by filing discrimination claims in federal court on behalf of LGBT plaintiffs and appearing as amicus curiae in such cases as Zarda v. Altitude Express.

In the Harris Funeral Homes case, the 6th Circuit became the first federal appeals court to go beyond the sex stereotype theory for gender identity discrimination claims, agreeing with the EEOC that discrimination because of gender identity is always discrimination because of sex, as it involves the employer taking account of the sex of the individual in making a personnel decision.  The EEOC’s argument along the same lines for sexual orientation discrimination was adopted by the Chicago-based 7th Circuit Court of Appeals in 2017 in Hively v. Ivy Tech Community College, 853 F.3d 339 (7th Cir. en banc), a case that the losing employer did not appeal to the Supreme Court.  In 2018, the 2nd Circuit endorsed the EEOC’s view in the Zarda case.

During the oral argument of Zarda in the 2nd Circuit, the judges expressed some amusement and confusion when an attorney for the EEOC argued in support of Zarda’s claim, and an attorney for the Justice Department argued in opposition.  When the case was argued in September 2017, the EEOC still had a majority of commissioners appointed by President Obama who continued to support the Baldwin decision, but Attorney General Jeff Sessions took the position on behalf of the Justice Department that federal sex discrimination laws do not apply to sexual orientation or gender identity discrimination claims.

Due to the Trump Administration’s failure to fill vacancies on the EEOC, the Commission currently lacks a quorum and cannot decide new cases.  Thus, the Solicitor General’s response for the government to Harris Funeral Home’s petition for review did not really present the position of the Commission, although the Solicitor General urged the Court to take up the sexual orientation cases and defer deciding the gender identity case.  Perhaps this was a strategic recognition that unless the Court was going to back away from or narrow the Price Waterhouse ruling on sex stereotyping, it was more likely to uphold the 6th Circuit’s gender identity ruling than the 2nd Circuit’s sexual orientation ruling in Zarda, since the role of sex stereotyping in a gender identity case seems more intuitively obvious to federal judges, at least as reflected in many district and appeals court decisions in recent years.

The Court sometimes tips its hand a bit when granting certiorari by reframing the questions posed by the Petitioner.  It did not do this regarding sexual orientation, merely stating that it would consolidate the two cases and allot one hour for oral argument.  Further instructions will undoubtedly come from the Court about how many attorneys will be allotted argument time, and whether the Solicitor General or the EEOC will argue on the sexual orientation issue as amicus curiae.

The Court was more informative as to Harris Funeral Homes, slightly rephrasing the question presented in the Petition.  The Court said that the Petition “is granted limited to the following question: Whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping under Price Waterhouse v. Hopkins.”  One wonders why the Supreme Court used the phrase “status as transgender” rather than “gender identity” in describing the first part of the question, since “gender identity” fits more neatly into the terminology of Title VII than a reference to “status.”

None of the members of the Court have addressed the questions presented in these three cases during their judicial careers up to this point, so venturing predictions about how these cases will be decided is difficult lacking pertinent information.  The four most recent appointees to the Court with substantial federal judicial careers prior to their Supreme Court appointment – Samuel Alito, Sonia Sotomayor, Neil Gorsuch, and Brett Kavanaugh – have never written a published opinion on sexual orientation or gender identity discrimination, and neither did Chief Justice John Roberts during his brief service on the D.C. Circuit Court of Appeals.  However, it seems predictable that the justices most committed to construing civil rights laws narrowly in the context of the time when they were adopted will be skeptical about the argument that the 1964 statute can be interpreted to extend to sexual orientation or gender identity discrimination.

The counsel of record for Bostock is Brian J. Sutherland of Buckley Beal LLP, Atlanta.  Clayton County, Georgia, retained Jack R. Hancock of Freeman Mathis & Gary LLP, of Forest Park, Georgia, to submit its response to the Bostock Petition.  Counsel of record for Altitude Express is Saul D. Zabell of Bohemia, New York.  The brief in opposition was filed on behalf of the Zarda Estate by Gregory Antollino of New York City.  Zabell and Antollino were both trial counsel in the case and have pursued it through the appellate process.  Several attorneys from Alliance Defending Freedom, the Scottsdale, Arizona, based conservative religious liberty litigation group, represent Harris Funeral Home, and Solicitor General Noel J. Francisco’s office represents the EEOC.   John A. Knight of the ACLU Foundation, Chicago, is counsel of record for Aimee Stephens.  It is not unusual when the Supreme Court grants review for private parties to seek out experienced Supreme Court advocates to present their arguments to the Court, so some of these attorneys listed on the Petitions and other Briefs will likely not be appearing before the Court when the cases are argued next winter.

 

 

 

 

Supreme Court Takes a Pass on Hawaii B&B Discrimination Case

Posted on: March 21st, 2019 by Art Leonard No Comments

The U.S. Supreme Court announced on March 18 that it will not review a decision by Hawaii’s Intermediate Court of Appeals, which ruled in February 2018 that a small bed & breakfast operating in a private home in the Mariner’s Ridge section of Hawai’i Kai, violated Hawaii’s civil rights law by denying accommodations to an unmarried lesbian couple who were planning a trip to Hawaii to visit a friend.  Hawaii’s civil rights law forbids businesses that are “public accommodations” from discriminating in providing their services based on the sexual orientation of customers.  Cervelli v. Aloha Bed & Breakfast, 415 P.3d 919 (Int. Ct. App. Haw. 2018), cert. denied by Hawaii S. Ct., 2018 WL 3358586 (July 10, 2018), cert. denied, No. 18-451, 2019 WL 1231949 (U.S. Sup. Ct., March 18, 2019).

The key issues raised in the case were whether such an operation is covered by the public accommodations law, and whether the owner, Phyllis Young, who lives there and operates it personally, could successfully raise constitutional claims against being required to accommodate a lesbian couple in her home.

Young operates “Aloha B&B” out of her four-bedroom house, and has averaged between one hundred and two hundred customers a year.  She advertises on her own website and some third-party websites.  Diane Cervelli and Taeko Bufford, a “committed” lesbian couple, emailed to inquire about renting a room for their vacation trip.  Young immediately responded by email that a room was available and explained how to make a reservation.  Cervelli phoned two weeks later to book the room.  As Young was taking down her information, Cervelli mentioned that she would be accompanied by another woman, and Young asked whether they were lesbians.  When Cervelli said “Yes,” Young responded, “We’re strong Christians.  I’m very uncomfortable in accepting the reservation from you.” Young refused the reservation and hung up on Cervelli.

Bufford then called and attempted to reserve the room, but again Young refused.  Bufford asked her whether it was because she and Cervelli were lesbians, and Young said “Yes.”  Young referred to her religious beliefs as the reason she was refusing the reservation.  “Apart from Plaintiff’s sexual orientation,” wrote Judge Craig Nakamura for the court of appeals, “there was no other reason for Young’s refusal to accept Plaintiffs’ request for a room.”

The women filed a discrimination claim with the Hawaii Civil Rights Commission, which concluded that they had a legitimate case.  Then Cervelli and Bufford filed a lawsuit against Aloha B&B in the state circuit court, represented by Lambda Legal with local attorneys from Honolulu, and the Civil Rights Commission intervened in the lawsuit as a co-plaintiff.  Attorneys from Alliance Defending Freedom (ADF), the anti-LGBT religious litigation group, joined with local attorneys to defend the B&B.

Judge Edwin C. Nacino of the circuit court easily rejected the B&B’s argument that it was not a public accommodation, but rather a landlord that would not be covered by this law.  The law on discrimination in real estate transactions prohibits sexual orientation discrimination in residential rentals, but doesn’t apply to facilities with four or fewer units.  While the B&B has only four bedrooms, the evidence of 100-200 rentals per year made clear that Young’s business came within the “public accommodations” definition.  Young admitted that she only rented rooms for short stays, so this was a transient rather than a residential facility.

Young claimed that requiring her to accommodate the lesbian couple in her home violated her constitutional right to privacy, freedom of intimate association and free exercise of religion.  The circuit court rejected these defenses, and awarded summary judgment to the plaintiffs on the issues of liability and injunctive relief.  Since the defendant was planning to appeal, the issue of damages was put on hold pending a final decision on the case.

The appeals court affirmed the trial judge on all points.  Judge Nakamura wrote that “to the extent that Young has chosen to operate her bed and breakfast business from her home, she has voluntarily given up the right to be left alone,” thus rejecting her privacy claim.  Opening up her residence to 100-200 paying guests a year is inconsistent with such a privacy claim.  Furthermore, although Young lives there, the extent of commercial activity means that “it is no longer a purely private home.”  And, furthermore, “the State retains the right to regulate activities occurring in a home where others are harmed or likely to be harmed,” and in this case “discriminatory conduct caused direct harm to Plaintiffs and threatens to harm other members of the general public.”

The court similarly rejected the intimate association claim, which, said the court, applies to family relationships and other small-group settings.  “The relationship between Aloha B&B and the customers to whom it provides transient lodging is not the type of intimate relationship that is entitled to constitutional protection against a law designed to prohibit discrimination in public accommodations,” said the appeals court.

Finally, the court found Young’s federal constitutional religious freedom claim would be foreclosed by Employment Division v. Smith, 494 U.S. 872 (1990), where the U.S. Supreme Court held that “neutral laws of generally applicability need not be justified by a compelling governmental interest even when they have the incidental effect of burdening a particular religious practice,” wrote Nakamura, summarizing the holding.  Fueled by ADF’s representation, Young tried to argue that the appeals court should impose a stricter test using the Hawaii Constitution’s protection of religious freedom, but the court refused to do so, stating that in its view Hawaii’s civil rights law would survive the most demanding constitutional test in any event.

“Assuming, without deciding, that Aloha B&B established a prima facie case of substantial burden to Young’s exercise of religion, we conclude that the application of [the Hawaii civil rights law] to Aloha B&B’s conduct in this case satisfies the strict scrutiny standard,” wrote Nakamura,” since “Hawaii has a compelling state interest in prohibiting discrimination in public accommodations,” as the legislature has declared “the practice of discrimination because of sexual orientation in public accommodations is against public policy.”  The court concluded that the civil rights law “is narrowly tailored to achieve Hawaii’s compelling interest in prohibiting discrimination in public accommodations,” as the law “responds precisely to the substantive problem which legitimately concerns the State.”

The Hawaii Supreme Court refused to hear an appeal, so Young took the case to the Supreme Court, posing two questions: “Whether holding Mrs. Young liable without fair notice that her actions could be unlawful violates the Fourteenth Amendment’s Due Process Clause, and whether the Commission’s efforts to punish Mrs. Young for exercising her religious beliefs in her own home violate   the First Amendment’s Free Exercise Clause?”

The first question reflected Young’s belief that she was covered by the exemption for rental operations with four or fewer bedrooms, so, as she claimed, when she turned down Cervelli and Bufford she sincerely believed her business was not covered by the civil rights law, and it would be fundamentally unfair to impose liability on her.  The court of appeals had easily rejected this argument, and it is not the kind of argument that the Supreme Court was likely to address as a failure of procedural due process of law.

The second question was intended to tempt members of the Court who have been calling for a reconsideration of the Employment Division v. Smith precedent, which was controversial when decided and actually led to the enactment of the Religious Freedom Restoration Act (RFRA) by Congress and similar laws by many state legislatures.  Prior to that ruling, the Supreme Court had required the government to show a “compelling interest” when laws that burden free exercise of religion were challenged in court.

Employment Division was seen by many as a sharp departure from prior precedents, liberal Supreme Court justices dissented from the Court’s opinion by Justice Scalia, and a broad coalition spanning the political spectrum among religious organizations successfully lobbied Congress to pass RFRA, ultimately reimposing the “strict scrutiny” standard when federal laws impose a substantial burden or religious free exercise.

Despite calls for reconsidering Employment Division, most prominently by Justice Neil Gorsuch in his concurring opinion in Masterpiece Cakeshop last June, this petition evidently did not tempt at least four members of the Court to use this case as a vehicle to expand the religious freedom of business owners to turn down customers whom they found objectionable based on the owners’ religious beliefs. The Court avoided such reconsideration last Term in Masterpiece Cakeshop by deciding that case on a different ground.  Of course, if the Court wants to address these issues directly, they still have pending a petition to review an Oregon state court ruling against a baker who refused to make a wedding cake for a same-sex couple, Klein v. Oregon Bureau of Labor and Industries, 289 Or. App. 507, review denied by Oregon S. Ct., 363 Or. 224 (2018), so we continue to wait for another shoe to drop.

Meanwhile, unless a settlement is negotiated, Young faces a renewed proceeding in the Hawaii circuit court to determine what damages, if any, she will be ordered to pay to Cervelli and Bufford for unlawfully discriminating against them.

Liberty Counsel Revives Assault on New Jersey Conversion Therapy Ban

Posted on: February 12th, 2019 by Art Leonard No Comments

Usually the U.S. Supreme Court’s refusal to review a lower court decision puts an end to the case, but Liberty Counsel, a right-wing religious group that represents psychologists in New Jersey who want to provide conversion therapy to “change” people from gay to straight, has seized upon an opening created by a U.S. Supreme Court decision from last June to revive their constitutional attack on New Jersey’s law prohibiting licensed professional counselors from providing such therapy to minors.  On February 11, the organization petitioned the Supreme Court to effectively reopen the case.  King v. Governor of New Jersey & Garden State Equality.

Governor Chris Christie signed the measure into law on August 19, 2013.  Liberty Counsel promptly filed suit on behalf of two psychologists and their patients, as well as the National Association for Research and Therapy of Homosexuality (NARTH), and the American Association of Christian Counselors, claiming that the measure violated the constitutional rights of plaintiffs.

U.S. District Judge Freda L. Wolfson granted the state’s motion for summary judgment, finding no constitutional violation (see 981 F. Supp. 2d 296), and the plaintiffs fared no better before the U.S. Court of Appeals for the 3rd Circuit, based in Newark, which upheld Judge Wolfson’s ruling on September 11, 2014 (see 767 F. 3d 216).

Wolfson found the measure to be a regulation of professional conduct, only incidentally affecting speech.  As such, she held that the challenge should be rejected as long as the legislature had a rational basis for enacting the law.  She found that the legislative record about the inefficacy and harm of such therapy was sufficient to meet the test.

On appeal, the three-judge panel disagreed with Judge Wolfson to the extent of finding that the ban as applied to “talk therapy” is a content-based regulation of speech, not just a regulation of conduct with an incidental effect on speech.  But the appeals court unanimously rejected the plaintiffs’ argument that the statute was consequently subject to the strict scrutiny test, under which it would be presumed to be unconstitutional unless New Jersey could prove that it was narrowly tailored to achieve a compelling state interest.

Instead, wrote Circuit Judge D. Brooks Smith for the panel, the speech involved in providing conversion therapy is “professional speech,” subject to state regulation.  As such, the court ruled, the state could prevail under the less demanding “heightened scrutiny” test by showing that the ban substantially advanced an important state interest, and that the legislative record was sufficient to uphold the law.

Liberty Counsel petitioned the Supreme Court for review.  That petition was denied on May 4, 2015 (see 135 S. Ct. 2048).  The Supreme Court also denied a petition to review a similar decision by the San Francisco-based 9th Circuit Court of Appeals in a case brought by, among others, Dr. David Pickup, in which that court rejected a similar challenge to California’s ban on conversion therapy.  (Dr. Pickup is also a plaintiff in the case challenging a conversion therapy ban in Tampa, Florida, about which we blogged earlier.)  Judge Wolfson relied on the 9th Circuit’s ruling in finding that conversion therapy statutes can be upheld as within the traditional state power to regulate the conduct of licensed professionals.

More than a dozen jurisdictions have since passed such bans, and attempts to challenge them in the courts have similarly been unsuccessful.  But the Supreme Court may have upset this trend by its ruling on June 26, 2018, in National Institute of Family and Life Advocates (NIFLA) v. Becerra, 138 S. Ct. 2361.  NIFLA challenged a California law that required licensed pregnancy-related clinics to inform their clients about the availability of publicly-funded family-planning services, including contraception and abortions, and non-licensed facilities to provide notices stating that they were not licensed by the state.  The Supreme Court agreed with NIFLA that the statute violated the 1st Amendment protection for freedom of speech by compelling the plaintiffs to speak the government’s message.

In defending the statute, California relied on the conversion therapy decisions from the 3rd and 9th Circuits.  This provoked Justice Clarence Thomas, writing for the 5-4 majority, to reject the idea that “professional speech” in the context of regulated, licensed professions was entitled to any lesser constitutional protection than other speech.  After summarizing these and other cases, Thomas wrote: “But this Court has not recognized ‘professional speech’ as a separate category of speech.  Speech is not unprotected merely because it is uttered by ‘professionals.’  This court has ‘been reluctant to mark of new categories of speech for diminished constitutional protection.’”

Thomas went on to write that there were only two circumstances in which the Supreme Court had provided lesser protection to “professional speech”: “First, our precedents have applied more deferential review to some laws that require professionals to disclose factual, noncontroversial information in their ‘commercial speech.’  Second, under our precedents, States may regulate professional conduct, even though that conduct incidentally involves speech.”

Thus, at least by implication, a majority of the Supreme Court ruled last June that states passing conversion therapy bans will have to meet the demanding strict scrutiny test when they are challenged under the 1st Amendment.  Unless, of course, they can show that this is really a regulation of professional conduct with incidental effect on speech, an approach that worked in the 9th Circuit.  Although Thomas’s comments in NIFLA suggest this may be a difficult task, it is not necessarily impossible.

Reacting to the Supreme Court’s NIFLA ruling, Liberty Counsel jumped into action to try to revive its challenge to the New Jersey law.  First, it filed a Motion with the 3rd Circuit Court of Appeals, demanding that it recall the Mandate it had issued to the District Court in 2014 to dismiss the challenge to the statute.  Liberty Counsel argued that the Supreme Court’s ruling had “abrogated” the 3rd Circuit’s decision, thus the 3rd Circuit should acknowledge that its 2014 ruling was erroneous and correct the situation by “recalling” its Mandate.  Although Liberty Counsel does not explicitly state what would come next, presumably this would mean reversing the District Court’s grant of summary judgment to the state and resetting the case for argument under the strict scrutiny test.  The 3rd Circuit denied this Motion without a hearing or a written opinion.

Undaunted, Liberty Counsel then sought rehearing en banc (by the full 3rd Circuit bench), which was also denied, on November 13, 2018.

Liberty Counsel petitioned the Supreme Court on February 11, arguing that the 3rd Circuit “abused its discretion” by refusing to take action based on the Supreme Court’s “abrogation” of the 3rd Circuit’s prior opinion.  Liberty Counsel cites numerous cases in which it claims federal courts of appeals have “recalled” their mandates from lower courts after a Supreme Court decision in a similar case has rejected the reasoning underlying their earlier decision.  Liberty Counsel argues that the current situation is particularly stark because the Supreme Court has not only rejected the reasoning of the earlier case, but has cited and quoted from the earlier decision while doing so.

On the other hand, Justice Thomas did not use the term “abrogate” and his opinion in NIFLA recognizes that there may be circumstances in which state regulation of professional speech may be constitutional.  The 9th Circuit’s reasoning in the Pickup case, focused on the regulation of professional conduct rather than speech, may be such an instance, and the 3rd Circuit’s case could be reconsidered under such a standard.  In this case, Liberty Counsel may be following the lead of West Publishing Company, which operates the Westlaw legal research system.  If one finds the 3rd Circuit’s decision in Westlaw, one sees, in bold red above the citation of the case, the phrase “Abrogated by National Institute of Family and Life Advocates v. Becerra, U.S., June 26, 2018” and the characterization “Severe Negative Treatment.”

Liberty Counsel’s petition, a bit disingenuously, assumes this means that the New Jersey law is unconstitutional, but all it really means is that the 3rd Circuit applied too lenient a standard in ruling on the case and should have applied the strict scrutiny test to be in line with the Supreme Court ruling in NIFLA.

In its argument to the Supreme Court, Liberty Counsel contends that failing to grant the petition and to require the 3rd Circuit to “recall” its mandate will have harmful rippling effects throughout the nation.  It points to the steady progression of new state and local laws that have been enacted in reliance on the “incorrect” decisions by the 3rd and 9th Circuits, which it asserts will “chill” the ability of conversion therapy practitioners to “offer” this “cure” to their patients.

In January, U.S. Magistrate Judge Amanda Arnold Sansone relied on the Supreme Court’s NIFLA decision in her report recommending that the U.S. District Court issue a preliminary injunction against the application of the Tampa, Florida, conversion therapy ban to practitioners who provide “talk therapy.”  The complaint filed in federal court in Brooklyn last month by Alliance Defending Freedom, challenging New York City’s ordinance, is devised to raise the same arguments.  And it is predictable that either ADF or Liberty Counsel will file suit in an attempt to block the new state law enacted last month in New York raising similar arguments.

Although Liberty Counsel couches its petition as an attempt to have the court settle a dispute among lower courts about the proper way to respond when one of their decisions is substantially undermined in its reasoning by a subsequent Supreme Court ruling in a similar case, it is at heart an attempt to relitigate the question whether conversion therapy practitioners have a 1st Amendment right to ply their trade free of government restrictions.  It is a blatant attempt to get the issue of conversion therapy back before the Supreme Court now that Trump’s appointments have solidified the conservative majority.  And, at that, it is a test of science against homophobia and transphobia.

Alliance Defending Freedom Files Constitution Challenge to NYC Law Banning Conversion Therapy

Posted on: January 29th, 2019 by Art Leonard No Comments

Alliance Defending Freedom (ADF), the anti-gay Christian legal organization based in Scottsdale, Arizona, filed a lawsuit in U.S. District Court in Brooklyn on January 23, challenging the constitutionality of New York City’s Local Law 22 of 2018, which prohibits the practice of conversion therapy in the City. The law was a project of the City Council, which enacted it on November 30, 2017. It was returned to the Council unsigned by Mayor Bill De Blasio within thirty days, and became law without his approval on January 5, 2018.  The case is Schwartz v. The City of New York, Case 1:19-cv-00463 (N.Y. Dist. Ct., E.D. N.Y., filed Jan. 23, 2019).

The measure is probably the most broadly-sweeping legislative measure against conversion therapy to be enacted in the United States. State laws on the subject, including the one enacted in January in New York State, limit their bans to provision of such therapy to minors by licensed health care professionals, and designate the offense as professional misconduct that can subject the practitioner to discipline for unprofessional conduct. The City law, by contrast, applies to “any person” who provides such therapy for a fee to any individual, not just minors. The City law imposes civil penalties beginning with $1,000 for a first violation, $5,000 for a second violation, and $10,000 for each subsequent violation, which can be imposed by the city’s Office of Administrative Trials and Hearings. Its enforcement has been assigned to the Department of Consumer Affairs.

For purposes of this law, “conversion therapy” is defined as “any services, offered or provided to consumers for a fee, that seek to change a person’s sexual orientation or seek to change a person’s gender identity to conform to the sex of such individual that was recorded at birth.” The measure does not contain any express exemption for religious counselors or clergy, but presumably if they do not charge a fee for their services they are not subject to this law.

Legal challenges to the various state laws, of which there are now more than a dozen, have so far been unsuccessful, but it is not clear that the sweeping New York City law will benefit from some of the legal doctrines that states have successfully marshalled to defend their laws. Most importantly, the state laws fall comfortably within the traditional state role of regulating the provision of health care by licensed practitioners, and by being restricted to minors, they rest within the state’s traditional function of parens patriae, caring for the welfare of minors, which can mean at times defending minors from the well-meaning but harmful actions of their parents, such as refusing blood transfusions or medication for serious illnesses.

ADF is asking the court to issue a declaration that the law is unconstitutional and to issue an injunction against its enforcement by the City. The law does not authorize individuals to file suit against conversion therapy practitioners, but instead leaves enforcement to an administrative process, triggered by complaints to the Consumer Affairs Department.

ADF has found a seemingly sympathetic plaintiff, Dr. David Schwartz, a “counselor and psychotherapist practicing in New York City who has a general practice but who has regularly had, and currently has, patients who desire counseling that the Counseling Censorship Law prohibits.” The Complaint also describes him as a “licensed clinical social worker” who “resides and practices in Brooklyn.” When this writer first read the Complaint, he was alarmed to think that the New York City Council would title a measure “Counseling Censorship Law,” but upon retrieving a copy of the Local Law 22, saw that the title was an invention of ADF for the purpose of framing its 1st Amendment challenge, as the word “censorship” appears nowhere in the legislation, which does not have an official title.

According to the Complaint, Dr. Schwartz is an Orthodox Jew whose patients come mainly from the Chabad Lubavitch ultra-orthodox community. He avows that he provides counseling and psychotherapy attuned to the needs and desires of that community, and cites the late Lubavitcher Rabbi, Menachem Mendel Schneerson, as an authority supporting the practice of conversion therapy. The description of his practice does not mention child patients, stating: “Dr. Schwartz works only with willing patients – patients who voluntarily walk into his office and talk with him because they want and value his counsel. And Dr. Schwartz does nothing to or with his patients other than listen to them and talk with them.”

Schwartz fears that the City law will be used against him, and the Complaint focuses on the $10,000 civil penalty like a sword of Damocles hanging over his head. ADF was smart to avoid mentioning minors, since it filed this lawsuit during the time between the state legislature’s approval of its conversion therapy ban and its signing into law on January 25 by Governor Cuomo. If Schwartz practices on minors as a licensed psychologist, he will be violating the state law, possibly setting up another lawsuit by ADF.

ADF has positioned this case primarily as a challenge to government censorship of free speech and free exercise of religion. The Complaint insists that the only therapy Schwartz provides is “talk therapy,” eschewing the bizarre and cruel practices that were describe in a New Jersey court a few years go in a case brought by emotionally damaged patients of JONAH, a Jewish conversion therapy organization that was found in that case to be in violation of the New Jersey consumer protection law. ADF has crafted the Schwartz Complaint to distinguish this case from the JONAH case, which involved Jewish parents effectively forcing their teenage children to subject themselves to bizarre “therapeutic” procedures to “change” their sexual orientation.

By contrast, without ever indicating the age range of his patients, the Schwartz Complaint says that he “does not view it as the psychotherapist’s role to rebuke patients or to tell them the direction they ‘ought’ to go.” The Complaint describes a practice in which patients come to Schwartz “with a very wide range of issues. However,” it continues, “his practice regularly includes a few individuals who experience undesired same-sex attractions. In some cases, patients come to Dr. Schwartz seeking his assistance in pursuing their personal goal of reducing their same-sex attractions and developing their sense of sexual attraction to the opposite sex.” Schwartz insists that he “does not attempt to increase opposite-sex attraction or change same-sex attraction in patients who do not desire his assistance in that direction. In working with patients who desire to decrease same-sex attraction or increase their attraction to the opposite sex, Dr. Schwartz never promises that these goals will be achieved.”

The Complaint also insists that “Dr. Schwartz engages in no actions other than talking with the patient, and offering ways of thinking about themselves and others that may help them make progress towards the change they desire. Dr. Schwartz does not use electro-shock therapy, he does not recommend that patients view heterosexual pornography or that they subject themselves to painful or other adverse stimulations in response to undesired sexual thoughts. Dr. Schwartz simply listens to what his patients share with him, and talks to them.” The Complaint concedes that some patients do not achieve the goal, and “some have chosen to stop pursuing it,” but claims that Schwartz has had success with an unspecified number of patients who have “over time” experienced “changes” that “have enabled Dr. Schwartz’s patients to enter into heterosexual marriage that they desired.”

The Complaint recites the traditional arguments put forward by conversion therapy proponents, about how patients who are “strongly motivated to change” can achieve their goal. Interestingly, the Complaint refers repeatedly to “reducing” same-sex attraction without ever asserting that Schwartz claims to have “eliminated” such attraction in his patients. And, of course, proponents shy away from any sort of formal documentation, insisting that patient confidentiality precludes providing concrete examples. It also cites no published scientific authorities supporting the efficacy of talk therapy in changing sexual orientation.

Several paragraphs are devoted to statements attributed to Rabbi Schneerson relating to this subject, without any citation of published sources.

ADF’s legal theory here is that the city’s “Counseling Censorship Law” is a content-based regulation of speech that is “aiming to suppress the dissemination of ideas and information about human sexuality and the human capacity for change in this area” and “does not adopt the least restrictive means to pursue a compelling government interest,” arguing that the government “has no cognizable interest at all – let alone a compelling interest – in preventing citizens from hearing ideas that those citizens with to hear in a counseling relationship.” The Complaint argues that the law both prohibits and compels speech, in the sense that it “effectively requires Dr. Schwartz to tell the patient that no change is possible, which Dr. Schwartz does not believe to be true.”

The Complaint also claims that the law is “unduly vague” in violation of the Due Process Clause, picking apart various phrases and terms and suggesting that their ambiguity make it difficult for a practitioner to know what he can or cannot say to a patient. The Complaint also argues that the law violates the 1st Amendment rights of patients who want to receive talk therapy to change their sexual orientation. And, of course, it focuses at the end on the Free Exercise Clause, arguing that Schwartz “has a right to use his professional skills to assist patients to live in accordance with their shared religious faith, including the religious mandates of the Torah and the teachings of the Lubavitcher Rebbe and other respected Orthodox Jewish authorities based on the Torah. The Counseling Censorship Law purports to be justified, in its legislative history, by a supposed finding that ‘changing’ sexual orientation is impossible. The Lubavitcher Rebbe, whose teachings inform the core of Dr. Schwartz’s religious convictions, taught exactly the opposite.”

The Complaint argues that because the Council enacted the law knowing that “it was hostile to and targeting practices particularly associated with persons and communities adhering to traditional religious beliefs,” it is “not a neutral law of general applicability,” even though it nowhere mentions religion. This is an attempt to establish that Schwartz’s 1st Amendment claim is not governed by the U.S. Supreme Court’s holding, in Employment Division v. Smith, that individuals do not have a right based on their religious beliefs to be exempted from “neutral” laws of “general applicability.”

Interestingly, all the attorneys listed on the complaint are staff attorneys of ADF based in Scottsdale, Arizona. No member of the New York bar is listed, although a footnote indicates that one of the attorneys, Jeana J. Hallock, will be applying for pro hac vice admission (admission for purposes of this case only) to the bar in the U.S. District Court for the Eastern District of New York. The lead attorney signing the Complaint is Roger G. Brooks. The defendants are The City of New York and Lorelei Salas, the Commissioner of Consumer Affairs, whose department has issued regulations on enforcement of the law, and who is sued only in her official capacity. The New York City Law Department will defend the City and Commissioner Salas in the case, which is likely to attract amicus briefs on both sides of the case.

Federal Government Asks the Supreme Court to Delay Deciding Whether Title VII Bars Gender Identity Discrimination

Posted on: October 31st, 2018 by Art Leonard No Comments

The Trump Administration has asked the Supreme Court to hold off for now on deciding whether gender identity discrimination is covered under the ban on employment discrimination “because of sex” in Title VII of the Civil Rights Act of 1964. Solicitor General Noel J. Francisco and several other Justice Department attorneys are listed on a brief filed with the Court on October 24, ostensibly on behalf of the Equal Employment Opportunity Commission (EEOC), arguing that the Court should not now grant review of a decision by the Cincinnati-based 6th Circuit Court of Appeals, which ruled earlier this year that Harris Funeral Homes violated Title VII by discharging Aimee Stephens, a transgender employee, who was transitioning and sought to comply with the employer’s dress code for female employees. The proprietor of the funeral home objected on religious grounds to having an employee whom he regards as a man dressing as a woman at work. R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission, No. 18-107.

The government’s move came as something of a surprise, in light of recent news that a memorandum, originating from the Civil Rights Office in the Department of Health and Human Services (HHS), is circulating within the Trump Administration proposing to adopt a regulation defining “sex” in terms solely of genitals and chromosomes and thus, effectively, excluding “gender identity” as part of the definition of sex for purposes of federal law.

The Solicitor General’s brief argues that instead, the Court should focus on one or both of two Petitions now pending that seek review of decisions by the 2nd Circuit and the 11th Circuit on the question whether sexual orientation discrimination is prohibited by Title VII. In the former case, Zarda v. Altitude Express, the en banc 2nd Circuit reversed prior circuit precedents and ruled that sexual orientation claims are covered by Title VII, following the lead of the 7th Circuit in Hively v. Ivy Tech Community College (2017). In the other case, Bostock v. Clayton County, an 11th Circuit three-judge panel rejected a similar sexual orientation discrimination claim, and the circuit court turned down a petition for rehearing by the full circuit. In the Supreme Court, these cases are Bostock v. Clayton County Board of Commissioners, No. 17-1618, and Altitude Express v. Zarda, No. 17-1623.

In those two cases, the central question for the Court to decide is whether Title VII’s use of the term “sex” should be construed as the Trump Administration contends that it should be, as the simple difference between male and female as identified at birth, usually by the doctor’s visual inspection of genitals, or whether it should receive a broad interpretation that the EEOC and some lower federal courts have embraced, extending protection against discrimination to LGBTQ people because of their sexual orientation or gender identity as form of “discrimination because of sex.” This argument, for those preoccupied with the presumed legislative intent of the drafters and adopters of legislation, is based on the proposition that the Congress of 1964 did not intend to protect LGBTQ people from discrimination when they voted to include “sex” as a prohibited ground of employment discrimination in Title VII.

Referring to the pending sexual orientation case petitions, General Francisco’s brief argues, “If the Court grants plenary review in Zarda, Bostock, or both to address that question, its decision on the merits may bear on the proper analysis of the issues petitioner raises [in this case]. The court of appeals here relied on the reasoning of decisions (including Zarda) holding that Title VII’s prohibition on sex discrimination extends to sexual-orientation discrimination. Accordingly, the Court should hold the petition in this case pending its disposition of the petitions in Zarda and Bostock and, if certiorari is granted in either or both of those cases, pending the Court’s decision on the merits.” If the Court were to grant review in Zarda and/or Bostock, oral argument would be held sometime in the Spring with a decision expected by the end of June 2019, at which time the Court could send the Funeral Homes case back to the 6th Circuit for reconsideration in light of its decision in the sexual orientation cases, avoiding deciding the gender identity question itself. The Supreme Court has yet to issue a ruling on the question whether either the Constitution or federal statues protect transgender people from discrimination because of their gender identity.

Francisco’s brief also argues that the Court should not grant review in the Funeral Home case even if it decides not to review the sexual orientation cases. “To be sure,” says the brief, “the United States disagrees with the court of appeals’ decision. As relevant here, the court’s analysis of whether petitioner engaged in improper sex stereotyping reflects a misreading of Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). The court’s further conclusion that gender-identity discrimination necessarily constitutes discrimination because of sex in violation of Title VII – although it was unnecessary to the ultimate result the court reached in this case – is also inconsistent with the statute’s text and this Court’s precedent. Both of those questions are recurring and important.”

This immediately raises the question why the Court should refuse to grant review to decide questions that are “recurring and important”? The Solicitor General’s response to that question appears to be improvised to cover over a difficult political transition that will eventually take place at the EEOC, the agency that filed suit against the Funeral Home on behalf of Aimee Stephens and is nominally the respondent on this petition at the Supreme Court.

President Trump has nominated three commissioners, one of whom, out lesbian Chai Feldblum (who was first appointed by President Obama and whose current term expires at the end of this year), has inspired fervent opposition from several Republican Senators. The other two nominees are Republicans whom the current Senate leadership would eagerly approve, but the three nominations were presented as a package, in recognition of the statutory requirement that no more than three of the five EEOC commissioners may be members of the same party, and the package has not moved in the Senate because of opposition to Feldblum. As of now, the EEOC has three commissioners – two Democrats and one Republican – and continues to take discrimination complaints under Title VII from LGBTQ people. If the package of nominees is approved, the new Republican majority of commissioners would likely come into line with the Justice Department’s position that Title VII does not cover such claims. If the “package” is not approved during the lame duck session of Congress, the EEOC will not be able to decide cases beginning on January 1, because it will lack a quorum of at least three Senate-confirmed commissioners. And the question of which party controls the next Senate will certainly affect which Trump nominees can be approved after January 3 when the new Senate convenes.

Setting aside the politics for the moment, however, the Solicitor General’s pragmatic argument is that there is a significant split among the circuit courts on the sexual orientation issues, which requires the Supreme Court to resolve with some urgency. But, says the brief, “Fewer circuits have addressed the questions presented in this case, and the panel decision here appears to be the first court of appeals decision to conclude in a Title VII case that gender identity discrimination categorically constitutes discrimination because of sex under that statute. If the Court determines that the question raised in Zarda and Bostock does not warrant plenary review at this time, the questions presented here would likewise not appear to warrant review at this juncture.”

Attorneys from the ACLU representing Aimee Stephens also filed a response to the Harris Funeral Homes’ petition on October 24. They argue that the Court should deny the petition.

They note that the Funeral Homes petition’s first “Question Presented” is “Whether the word ‘sex’ in Title VII’s prohibition on discrimination ‘because of sex’ meant ‘gender identity’ and included ‘transgender status’ when Congress enacted Title VII in 1964.” They argue that this case is a “poor vehicle for addressing petitioner’s first question because deciding it would not affect the judgment” of the lower court. This is because, simply stated, the 6th Circuit decided this case on alternative grounds, one of which was relying on a sex stereotyping theory (that the Funeral Home fired Stephens for not complying with the employer’s stereotype about how a genitally-male person should groom and dress), the other of which identified discrimination because of gender identity as a form of sex discrimination. So answering the first question in the negative would still leave the lower court’s judgment intact on the first – and widely-accepted – sex stereotyping theory. Note that this first “Question Presented” is only relevant at all if the Court attributes any special weight to what the adaptors of statutory language thought it meant at the time they adopted it: an originalist approach to statutory interpretation that the Court itself rejected in Oncale v. Sundowner Offshore Services in 1998.

The second question in the Funeral Homes petition is whether Price Waterhouse v. Hopkins “prohibits employers from applying sex-specific policies according to their employees’ sex rather than their gender identity.” As to that, the ACLU’s brief argues that the second question “was not adjudicated below and is not properly presented” to the Court in this case, because, first, the 6th Circuit held that Stephens was fired “based on multiple sex stereotypes, not only those related to the dress code,” and second, that the 6th Circuit “expressly did not address the lawfulness of sex-specific dress codes” in its decision, and that “sex-specific restroom policies” – an issue alluded to in the Funeral Homes petition — “are not at issue in this case.” Citing cases from many different circuits, the brief also argues that the 6th Circuit’s ruling “does not conflict with Price Waterhouse or any court of appeals.” Over the years since 1989, numerous circuit courts have accepted transgender discrimination claims using the sex stereotyping theory that the Supreme Court articulated in Price Waterhouse.

The government’s brief is undoubtedly disappointing to Alliance Defending Freedom (ADF), the right-wing religious litigation group that is representing the Funeral Homes and urgently seeks review in this case, seemingly confident that the newly constituted Republican majority in the Supreme Court would likely overturn the 6th Circuit’s decision. After the Supreme Court Clerk listed the two sexual orientation petitions on the agenda for the Court’s end-of-September conference, ADF sent a letter to the Clerk, suggesting that the Court defer deciding whether to review those cases until after briefing was completed on the Funeral Homes petition – which was delayed because the Solicitor General twice requested and received from the Court an extension of time to file its response on behalf of the EEOC. ADF argued that the underlying questions in all three cases were related, so the Court should take them up together. Shortly after the letter was entered on the Court’s docket, the sexual orientation cases were removed from the agenda for the Court’s cert conference, and they had not been relisted for consideration. Now ADF finds the government arguing that the Court should not take up the cases together, and that the gender identity case should be deferred until the sexual orientation cases are decided, and should not even be addressed by the Court now if the Court decides not to take up the sexual orientation cases! ADF would likely see this as a lost opportunity to get the new Supreme Court majority to cut short the successful campaign by civil rights litigators to get federal courts to find protection for LGBTQ people under federal sex discrimination laws, an easier route to protection than passage of the Equality Act, which has been languishing in Congress for several years, denied even a hearing by the Republican-controlled chambers.

Although the S.G. attributed its requests for extensions of time to the need to deal with many other cases, it is possible that the S.G. was stalling in hopes that the new majority of EEOC commissioners would be quickly confirmed, and that the Commission would bring its position in line with the Justice Department (DOJ). Attorney General Jeff Sessions issued an internal DOJ memo on October 4, 2017, rejecting any interpretation of Title VII (or other federal sex discrimination laws, such as Title IX of the Education Amendments Act or the Fair Housing Act) that covered gender identity or sexual orientation. During the early months of the Trump Administration, the Justice Department and the Education Department (DOE) abandoned the Obama Administration’s interpretation of Title IX, getting the Supreme Court to cancel an argument under that statute in transgender teen Gavin Grimm’s lawsuit against a Virginia school district over bathroom access, and DOE has stopped accepting and process discrimination claims from transgender students. Thus, DOJ may feel that it can overturn the Obama Administration’s expansive interpretation of sex discrimination laws without having to win a case in the Supreme Court. The government’s brief devotes several pages to restating the Sessions memorandum’s interpretation of Title VII and criticizing the 6th Circuit’s decision on the merits.

Court watchers noted something interesting about the brief filed by the Solicitor General. The list of attorneys on the brief does not include any lawyers from the EEOC, which is unusual when the government is representing a federal agency in a Supreme Court appeal of one of their lower court victories. In this case, of course, DOJ and the EEOC have a strong disagreement about the correct interpretation of Title VII, so DOJ, representing the Trump Administration’s position, is not inclined to let the lingering Democratic majority at the Commission have any say in how this case is argued at the Supreme Court.

With the government opposing its own victory in the lower court, the only party left to defend the lower court’s ruling is Aimee Stephens with her counsel from the ACLU, whose brief is signed by attorneys from the ACLU Foundation in Chicago, the ACLU Fund of Michigan, the ACLU LGBT Rights Project headquartered in New York, and the ACLU Foundation’s office in Washington.

Of course, if the Supreme Court ultimately decides to grant review in any of these Title VII cases, it can expect a barrage of amicus curiae briefs similar to the record-setting number filed in last term’s Masterpiece Cakeshop case.

Supreme Court Orders “Further Consideration” by Washington State Courts in Wedding Flowers Case

Posted on: June 25th, 2018 by Art Leonard No Comments

On June 25, the Supreme Court finally acted on a petition for certiorari filed last summer in Arlene’s Flowers, Inc. v. State of Washington, No. 17-108, in which Alliance Defending Freedom (ADF) sought review of the Washington Supreme Court’s ruling that unanimously affirmed the Benton County Superior Court’s decision that Arlene’s Flowers and its proprietor, Barronelle Stutzman, had violated the state’s Law Against Discrimination and its Consumer Protection Act by refusing to sell wedding flowers to a same-sex couple.  The Petition was docketed at the Supreme Court on July 14, 2017, after the Court had recently granted review in Masterpiece Cakeshop v. State of Colorado.  The Court did not place this Petition on the agenda for any of its certiorari conferences until after rendering its decision in Masterpiece Cakeshop on June 4, 2018.  Then on June 25, it granted the petition, vacated the lower court’s ruling, and sent the case back for “further consideration” in light of the Masterpiece ruling.

 

This case arose from an incident that occurred shortly after Washington began to issue same-sex marriage licenses as a result of the marriage equality litigation within the 9th Circuit.  Robert Ingersoll and Curt Freed, a same-sex couple planning their wedding, went to Arlene’s Flowers to order floral decorations for what they planned to be a big event.  Ingersoll had been a frequent customer of this business and had established a personal relationship with the proprietor, Barronelle Stutzman.  When he asked her to provide the flowers for his wedding, however, she told him that she could not design flowers for his wedding because of her relationship with Jesus Christ.  She gave him the names of three other florists, and claims he said he understood her decision and “they hugged before he left.”  Ingersoll and Freed decided to scale down their wedding plans as a result of this and evidently talked about their experience to others, generating news reports that spurred the state’s Attorney General to action.  Around the same time the state’s lawsuit was filed, Ingersoll and Freed, represented by the ACLU, filed their own suit, and the two cases were consolidated, resulting in State v. Arlene’s Flowers, 2015 WL 720213 (Wash. Super. Ct., Benton Co.), and State v. Arlene’s Flowers, 187 Wash. 2 804, 389 P.2d 543 (2017).  (Washington State allows direct action to enforce the statutes in question without requiring exhaustion of administrative remedies, and the Washington Supreme Court accepted Arlene’s Flowers’ petition for direct review, bypassing the state’s intermediate appellate court.) The state courts found that the defendant had violated the statutes, and that she was not entitled to any 1st Amendment defense.

Within days of the Masterpiece ruling, ADF had filed a supplementary brief in the Supreme Court on behalf of Arlene’s Flowers and Stutzman, urging the Court to grant certiorari, vacate the state court ruling, and remand for consideration in light of Masterpiece.  The Respondents (State of Washington and Ingersoll and Freed) quickly filed responding briefs, arguing that certiorari should be denied because there was nothing in the history of this case that suggested anything like the grounds on which Masterpiece had been decided.

In its supplementary brief, ADF mounted several arguments in support of its contention that Masterpiece could require a reversal in this case because of “hostility” to religion by the State of Washington.  First, ADF argued that the Attorney General’s action in filing suit against Barronelle Stutzman in both her professional and personal capacities, reacting to news reports and without the same-sex couple having filed their own discrimination claim, evinced hostility to religion.  Second, ADF argued that the trial court’s reliance on and quotation from a case cited by the Attorney General in which the court ruled against a retail store that refused on religious grounds to serve African-Americans was, in effect, comparing Barronelle to the “racist” owner of the store, further evincing “hostility” to her religion. Based on this, ADF argued, “the State, in short, has treated Barronelle with neither tolerance nor respect,” quoting Justice Kennedy’s phrase from Masterpiece.  ADF also pointed to the state’s failure to initiate litigation against a coffee-shop owner in Seattle who, according to a radio talk show, had “profanely berated and discriminated against Christian customers,” apparently seeking to draw an analogy to a situation described by Kennedy in Masterpiece, of the Colorado Civil Rights Commission dismissing charges against three bakers who had refused to bake anti-gay cakes in the wake of the Commission’s ruling against Masterpiece Cakeshop.

The State of Washington and the ACLU quickly filed responsive briefs, disputing the accuracy and relevance of ADF’s supplementary brief. For one thing, unlike Masterpiece Cakeshop, Arlene’s Flowers did not raise any issued in its original Petition about “hostility to religion” by the state and, Respondents argued, could not now introduce a new issue into the case.  For another, they pointed out, a party to litigation citing a case that supports its legal position cannot be considered “hostility to religion.”  After all, Justice Kennedy cited a similar federal case involving a restaurant that refused to serve African-Americans in his opinion in Masterpiece to support the point that it is well established that there is no general free exercise exemption from complying with public accommodations laws.  This doesn’t show hostility to religion by the court.  Furthermore, the A.G.’s filing of a discrimination complaint, in itself, is no evidence of animus or hostility, but merely doing his job, and the A.G. “played no adjudicatory role in the process of deciding this case.”  What Masterpiece required was that the forum not be hostile religion, and the forum is the court, not the parties to the case.

Furthermore, the A.G.’s brief pointed out, there was doubt about the accuracy of the talk radio report cited by ADF, but notwithstanding that, even though nobody filed a discrimination claim against the coffee shop owner, the chair of the Washington Human Rights Commission “publicly announced that she would send a letter to the business owner explaining Washington law,” and the owner subsequently announced, unlike Barronelle Stutzman, that “he will no longer refuse service to the customers he initially turned away.” Contrast this with the situation in Masterpiece, where Justice Kennedy counted as evidence of hostility that the Colorado Commission had rejected discrimination claims against three bakers who declined to make anti-gay cakes while ruling against Jack Phillips for refusing to make a same-sex wedding cake.  (As Justice Breyer explained in his concurring opinion joined by Justice Kagan, there was no inconsistency here as the two situations were clearly distinguishable.)

In any rate, a strong argument can be made that there is no basis for order “further consideration” of Arlene’s Flowers in light of Masterpiece.  In the days following a Supreme Court decision, the Court usually moves quickly to dispose of petitions in other cases that had been “on hold” pending its ruling.  It is not uncommon in such “mopping up” situations to send cases back to the lower courts for a determination whether the Supreme Court decision would require a different result.  But it is also common to merely deny the petition if the lower court ruling is clearly consistent with the new Supreme Court decision.  In this case, the Court’s action may be reacting to ADF’s assertion in its supplementary brief that there is evidence of hostility to religion in the proceedings in the Washington courts, and to a common practice by the Court of sending cases back for reconsideration if any member of the Court is troubled about possible inconsistency.  On the other hand, it may signal some ambiguity about exactly what the Court was holding in Masterpiece, and a desire by the Court, ultimately, to consider the underlying legal questions on the merits without any complications involving the nature of the lower court proceedings.

The Supreme Court’s decision to vacate the Washington Supreme Court’s ruling is certainly cause for concern, since that ruling is totally consistent with what Justice Kennedy said about the free exercise and free speech arguments that ADF advanced in Masterpiece, and a careful reading of Kennedy’s opinion shows that the Court did not back away, at least overtly, from its prior precedents holding that there is not a free exercise exemption from complying with laws banning discrimination in public accommodations.  Time will tell whether a firm majority of the Court is actually ready to reassert that position on the merits in an appropriate case.  Meanwhile, opponents of religious exemptions can take some comfort from the actions by the Arizona Court of Appeals and the Oregon Supreme Court (refusing to review a court of appeals ruling in another wedding cake case) in the weeks following the Masterpiece rule.

Arizona Appeals Court Cites Masterpiece Cakeshop Decision to Rule Out 1st Amendment Exemptions for Stationary Company

Posted on: June 11th, 2018 by Art Leonard No Comments

The precedential meaning of a Supreme Court decision depends on how lower courts interpret it.  The media reported the Supreme Court’s Masterpiece Cakeshop ruling as a “win” for baker Jack Phillips, since the court reversed the discrimination rulings against him by the Colorado Court of Appeals and the Colorado Civil Rights Commission.  But the opinion has a deeper significance than a superficial “win” or “loss” can capture, as the Arizona Court of Appeals demonstrated just days later in its rejection of a claim that a company that designs artwork for weddings and other special events can refuse to design and provide goods for same-sex weddings.

 

Alliance Defending Freedom (ADF), the same anti-LGBT legal outfit that represented Jack Phillips before the Supreme Court, represents Brush & Nib Studio, LC, a for-profit company that sells both pre-fabricated and specially designed artwork.  The company provides retail goods and services to the public, so it comes within the coverage of the city of Phoenix, Arizona’s, public accommodations anti-discrimination ordinance.

 

Although Brush & Nib had not received any requests to produce invitations for a same-sex wedding since such marriages became legal in Arizona, the owners had determined, based on their religious beliefs, that they would not provide their goods and services for such ceremonies.  Represented by ADF, they sued in the state trial court in Phoenix, seeking a preliminary injunction to bar enforcement of the ordinance against them in case such a customer should materialize in the future.

 

As described in the Court of Appeals’ opinion by Judge Lawrence F. Winthrop, the owners “believe their customer-directed and designed wedding products ‘convey messages about a particular engaged couple, their upcoming marriage, their upcoming marriage ceremony, and the celebration of that marriage.”  And they did not want any part of it.  They “also strongly believe in an ordained marriage between one man and one woman, and argue that they cannot separate their religious beliefs from their work.  As such, they believe being required to create customer-specific merchandise for same-sex weddings will violate their religious beliefs.”

 

They not only wanted to be assured that they could reject such business without risking legal liability; they also wanted to post a public statement explaining their religious beliefs, including a statement that they would not create any artwork that “promotes any marriage except marriage between one man and one woman.”  They haven’t posted such a statement yet out of concern that it would violate a provision of the Phoenix ordinance, which forbids a business from posting or making any communication that “states or implies that any facility or services shall be refused or restricted because of . . . sexual orientation . . . ,  or that any person, because of . . . sexual orientation . . . would be unwelcome, objectionable, unacceptable, undesirable, or not solicited.”

 

Maricopa County Superior Court Judge Karen Mullins rejected the motion for preliminary injunction, finding that the business did not enjoy a constitutional exemption.  The Court of Appeals held up ruling on ADF’s appeal until the Supreme Court issued its Masterpiece Cakeshop ruling on June 4, then quickly incorporated references to it into the opinion by Judge Winthrop issued on June 7.

 

After reviewing the unbroken string of state appellate court rulings from around the country that have rejected religious and free speech exemption claims in such cases over the past several years, Judge Winthrop wrote: “In light of these cases and consistent with the United States Supreme Court’s decisions, we recognize that a law allowing Appellants to refuse service to customers based on sexual orientation would constitute a ‘grave and continuing harm,’” citing the Supreme Court’s marriage equality ruling, Obergefell v. Hodges.

 

He continued with a lengthy quote from Justice Anthony Kennedy’s opinion for the Supreme court in Masterpiece Cakeshop:

“Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. For that reason the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights. The exercise of their freedom on terms equal to others must be given great weight and respect by the courts. At the same time, the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression. As this Court observed in Obergefell v. Hodges, ‘[t]he First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.’ Nevertheless, while those religious and philosophical objections are protected, it is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law. See Newman v. Piggy [Piggie] Park Enterprises, Inc. (1968) (per curiam); see also Hurley v. Irish–American Gay, Lesbian and Bisexual Group of Boston, Inc. (1995) (‘Provisions like these are well within the State’s usual power to enact when a legislature has reason to believe that a given group is the target of discrimination, and they do not, as a general matter, violate the First or Fourteenth Amendments’).”

 

The cases cited by Justice Kennedy in the quoted paragraph evidently sent a strong message for lower courts. Piggie Park is a classic early decision under the Civil Rights Act of 1964, holding that a restaurant owner’s religious opposition to racial integration could not excuse him from serving people of color in his barbecue restaurant.  Hurley was the famous St. Patrick’s Day Parade case from Boston, where the Supreme Court upheld the 1st Amendment right of parade organizers to exclude a gay Irish group from marching under their own banner proclaiming their gay identity.  The quoted language from that decision made clear that state’s may pass laws forbidding sexual orientation discrimination by businesses, but in this case the Court found that the parade organizers were not a business selling goods and services, but rather the non-profit organizers of an expressive activity who had a right to determine what their activity would express.

 

The points are clear: States can forbid businesses from discriminating against customers because of their sexual orientation, and businesses with religious objections will generally have to comply with the non-discrimination laws. The “win” for baker Jack Phillips involved something else entirely: the Supreme Court’s perception that Colorado’s Civil Rights Commission did not give Phillips a fair hearing because members of the Commission made public statements denigrating his religious beliefs at the hearing.  Justice Kennedy insisted for the court that a litigant’s dignity requires that the tribunal deciding his case be neutral and not overtly hostile to his religious beliefs, and that was the reason for reversing the state court and the state agency.  Kennedy’s discussion of the law clearly pointed in the other direction, as Justice Ruth Bader Ginsburg observed in her dissent.  And the Arizona Court of Appeals clearly got that message.

 

Turning to ADF’s free speech argument, Justice Winthrop wrote, “Appellants argue that [the ordinance] compels them to speak in favor of same-sex marriages. We disagree.  Although [it] may have an incidental impact on speech, its main purpose is to prohibit discrimination, and thus [it] regulates conduct, not speech.”

 

The court found this case similar to Rumsfeld v. FAIR, a case in which the Supreme Court rejected a free speech challenge by an organization of law schools to a federal law that required schools to host military recruiters at a time when the Defense Department’s policies discriminated against gay people. The law schools claimed that complying with the law would violate their 1st Amendment rights, but the Supreme Court said that the challenged law did not limit what the schools could say, rather what they could do; that is, conduct, not speech.

 

“We find Rumsfeld controlling in this case,” wrote Winthrop. The court found that the “primary purpose” of the city ordinance is to “prohibit places of public accommodation from discriminating based on certain protected classes, i.e., sexual orientation, not to compel speech. . .  Like Rumsfeld, [the ordinance] requires that places of public accommodation provide equal services if they want to operate their business.  While such a requirement may impact speech, such as prohibiting places of public accommodation from posting signs that discriminate against customers, this impact is incidental to property regulated conduct.”

 

Further distinguishing this case from the Hurley decision, the court said that requiring the business to comply with the law “does not render their creation of design-to-order merchandise for same-sex weddings expressive conduct. The items Appellants would produce for a same-sex or opposite-sex wedding would likely be indistinguishable to the public.  Take for instance an invitation to the marriage of Pat and Pat (whether created for Patrick and Patrick, or Patrick and Patricia), or Alex and Alex (whether created for Alexander and Alexander, or Alexander and Alexa).  This invitation would not differ in creative expression.  Further, it is unlikely that a general observer would attribute a company’s product or offer of services, in compliance with the law, as indicative of the company’s speech or personal beliefs.  The operation of a stationery store – including the design and sale of customized wedding event merchandise – is not expressive conduct, and thus, is not entitled to First Amendment free speech protection.”

 

The court also rejected an argument that the ordinance violated the right of expressive association. “We do not dispute that some aspects of Appellants’ operation of Brush & Nib may implicated speech in some regard,” wrote Justice Winthrop, “but the primary purpose of Brush & Nib is not to convey a particular message but rather to engage in commercial sales activity.  Thus, Appellants’ operation of Brush & Nib is not the type of expressive association that the First Amendment is intended to protect.”  Certainly not like a parade, which the court in Hurley described as a “quintessential” expressive activity.

 

However, the court found that the portion of the ordinance dealing with forbidden communications used vague language that was overbroad and unclear about which statements might constitute violations. “We are unable to interpret [the ordinance’s] use of the words ‘unwelcome,’ ‘objectionable,’ ‘unacceptable,’ and ‘undesirable’ in a way that would render [it] constitutional,” wrote Winthrop.  “The presence of one invalid prohibition, however, does not invalidate all of [the ordinance].”

 

“Here, by striking the second half [of the offending section] – which bans an owner of a place of public accommodation from making a person feel ‘unwelcome,’ ‘objectionable,’ ‘unacceptable,’ and ‘undesirable’ based on sexual orientation – does not render the remainder of the ordinance unenforceable or unworkable. . .   The remainder of [the provision] operates independently and is enforceable as intended.”

 

Turning to the free exercise of religion issue, the court had to deal with the state’s Free Exercise of Religion Act, which prohibits governmental entities in Arizona from substantially burdening a person’s exercise of religion “even if the burden results from a rule of general applicability” unless the rule is both “in furtherance of a compelling government interest and is the least restrictive means of furthering that governmental interest.” The statute’s language is taken verbatim from the federal Religious Freedom Restoration Act.

The court rejected the argument that requiring the business to provide goods and services for same-sex weddings imposed a substantial burden on the religious beliefs of the business owners. “Appellants are not penalized for expressing their belief that their religion only recognizes the marriage of opposite sex couples,” wrote Winthrop.  “Nor are Appellants penalized for refusing to create wedding-related merchandise as long as they equally refuse similar services to opposite-sex couples.  [The ordinance] merely requires that, by operating a place of public accommodation, Appellants provide equal goods and services to customers regardless of sexual orientation.”  They could stop selling wedding-related goods altogether, but what they “cannot do is use their religion as a shield to discriminate against potential customers,” said the court.  Although providing those goods and services to same-sex couples might “decrease the satisfaction” with which they practice their religion, “this does not, a fortiori, make their compliance” a substantial burden to their religion.

 

And, even if it did impose such a burden, the court found that the city of Phoenix “has a compelling interest in preventing discrimination, and has done so here through the least restrictive means. When faced with similar contentions, other jurisdictions have overwhelmingly concluded that the government has a compelling interest in eradicating discrimination.”  The court quoted from the Washington Supreme Court’s decision in Arlene’s Flowers, but could just as well have been quoting Justice Kennedy’s language in Masterpiece Cakeshop, quoted here.

 

Finally, the court rejected an equal protection challenge to the ordinance, finding that it did not treat people with religious beliefs about marriage differently than others, and that the owners of the business could not claim that they are members of a “suspect class” for purposes of analyzing their equal protection claim. “Phoenix has a legitimate governmental purpose in curtailing discriminatory practices,” wrote Winthrop, “and prohibiting businesses from sexual orientation discrimination is rationally related to that purpose.”

 

A spokesperson for ADF promptly announced that they would seek review from the Arizona Supreme Court, which has discretion whether to review the decision. Seeking review, however, is a prerequisite to petitioning the U.S. Supreme Court.  ADF is clearly determined to get this issue back before the Supreme Court.  It represents Arlene’s Flowers, whose petition is now pending, and it also represents a videography company in a case similar to Brush & Nibs, affirmatively litigating to get an injunction to allow the company to expand into wedding videos without having to do them for same-sex weddings.  The district court’s ruling against them in that case is now on appeal in a federal circuit court. One way or another, it seems likely that this issue will get back to the Supreme Court before too long.

 

Third Circuit Rejects Challenge to Pennsylvania School District’s Policy Allowing Transgender Students to Use Facilities Consistent with Their Gender Identities

Posted on: May 26th, 2018 by Art Leonard No Comments

A three-judge panel of the U.S. Court of Appeals for the 3rd Circuit took the unusual step on May 24 of announcing about an hour after hearing oral argument that it would unanimously affirm U.S. District Judge Edward G. Smith’s ruling from last summer denying a motion for a preliminary injunction by a group of parents and students seeking to stop the Boyertown (Pennsylvania) Area School District from continuing to implement a policy allowing transgender students to use locker rooms and bathrooms corresponding to their gender identities. Doe v. Boyertown Area School District, 2018 WL 2355999 (3rd Cir., May 24, 2018), affirming 276 F. Supp. 2d 324 (E.D. Pa., August 25, 2017).

Later that day, the court issued a brief “Judgement” written by Circuit Judge Theodore A. McKee, so brief that it can be quoted in full here: “We agree Plaintiffs have not demonstrated a likelihood of success on the merits and that they have not established that they will be irreparably harmed if their Motion to Enjoin the Boyertown School District’s policy is denied. We therefore Affirm the District Court’s denial of a preliminary injunction substantially for the reasons that the Court explained in its exceptionally well-reasoned Opinion of August 25, 2017.  A formal Opinion will follow. The mandate shall issue forthwith.  The time for filing a petition for rehearing will run from the date that the Court’s formal opinion is entered on the docket.”  There was some suggestion in press reports that after hearing argument the court was concerned that the affirmance be effective immediately, since the school year would shortly end.

This is one of several similar cases filed around the country by Alliance Defending Freedom (ADF), an organization formed to advance the freedom of Christians to assert the primacy of their beliefs over any conflicting obligations imposed by law. ADF is a staunch opponent of LGBT rights, battled on the ramparts to oppose marriage equality and to support the ability of businesses operated by Christians to refuse to sell their goods and services for same-sex weddings.  ADF has inserted itself into the “bathroom wars” by filing lawsuits on behalf of parents and allegedly cisgender students who oppose allowing transgender students to use single-sex facilities consistent with their gender identities.  When Judge Smith issued his decision last August, a federal magistrate judge in Illinois, Jeffrey T. Gilbert, had issued a report and recommendation to U.S. District Judge Jorge L. Alonso, which recommended denying ADF’s motion for a preliminary injunction against a similar school district policy in Students & Parents for Privacy v. United States Department of Education, 2016 WL 6134121 (N.D. Ill., Oct. 18, 2016), and Judge Smith cited and relied on Judge Gilbert’s analysis at various points in his decision.  Judge Alonso subsequently adopted Judge Gilbert’s Report and Recommendations, over the objections of ADF, on December 29, 2017, in Students & Parents for Privacy v. United States Department of Education, 2017 WL 6629520.

The plaintiffs in the Boyertown case argued three legal theories: first, that the district’s policy violates the constitutional privacy rights of non-transgender students under the 14th Amendment; second, that the school district’s policy violates Title IX’s requirement, as fleshed out in Education Department regulations, to provide separate restroom and locker room facilities for boys and girls; and third, that the policy violates Pennsylvania’s common law tort of invasion of privacy by intruding on the right of seclusion of non-transgender students.  Judge Smith found that the record compiled by the parties in response to the plaintiffs’ motion for preliminary injunction showed that the plaintiffs were unlikely to prevail on any of these claims.  The bulk of his lengthy opinion (which runs 83 pages, including about six pages of headnotes, in Lexis) is devoted to a careful delineation of the factual record upon which he based his legal analysis.

Judge Smith explored each of the three theories at length, rejecting ADF’s argument that high school students have some sort of fundamental constitutional right not to share restroom facilities with transgender students because of the possibility that a transgender student would see them in their underwear, and noting particularly that factual allegations by individual plaintiff students who had found themselves in restrooms with transgender students showed that even if such a “right” existed, it had not been violated in any instance.

As to the Title IX argument, plaintiff insisted that allowing transgender students to use the restrooms created a “hostile environment” for the non-transgender students, but Judge Smith, recurring to Judge Gilbert’s ruling in the Illinois case, observed that “the School District treats both male and female students similarly,” undercutting the argument that the District is discrimination in education opportunity “because of” the sex of the individual plaintiff students.   “The practice applies to both the boys’ and girls’ locker rooms and bathrooms,” wrote Smith, “meaning that cisgender boys potentially may use the boys’ locker room and bathrooms with transgender boys and cisgender girls potentially may use the girls’ locker room and bathrooms with transgender girls.  In addition, with regard to the transgender students, both transgender boys and transgender girls are treated similarly insofar as they, upon receiving permission from the School District, may use the locker rooms and bathrooms corresponding with their gender identity.  Moreover, the School District is not discriminating against students regarding the use of alternative facilities if students are uncomfortable with the current practice insofar as those facilities are open to all students who may be uncomfortable using locker rooms or multi-user facilities… The School District’s similar treatment of all students I fatal to the plaintiffs’ Title IX claim.”  Concluding on the Title IX point, Judge Smith wrote, “The plaintiffs have failed to cite to any case holding that a plaintiff can maintain a sexual harassment hostile environment claim when the allegedly sexually harassing party treats all individuals similarly and there is, as such, no evidence of gender/sex animus.”  Simply put, the District was not “targeting” any student for particular adverse treatment because of his or her sex.  Judge Smith also pointed out that the law of “hostile environment” as it has been developed under Title VII of the Civil Rights Act of 1964, to which courts refer in Title IX cases, sets a very high evidentiary bar for establishing a hostile environment, which he concluded could not be met by the plaintiffs’ factual allegations in this case.

As to the tort of invasion of privacy claim, Judge Smith noted that there were no allegations that any of the named defendants had personally invaded the privacy of any of the plaintiffs, as the plaintiffs’ factual allegations all related to two transgender students, identified as Student A and Student B, whose presence in locker rooms or restrooms was the subject of individual plaintiffs’ angst. But, of course, Students A and B were only present in those facilities because the District’s policy allowed them to be.  “The court does not deny that an individual seeks seclusion in a bathroom toilet stall from being viewed by other people outside of the stall,” wrote Judge Smith, pointing out that the cases cited by the plaintiffs in support of their common law privacy claims “involve alleged invasions of privacy in bathroom stalls,” usually involving police surveillance of public restrooms.  “Here,” Smith pointed out, “there are no allegations and the plaintiffs presented no evidence that any transgender student invaded their seclusion while they were in a bathroom stall.  And similarly, although the plaintiffs indicate that viewing a person while in a bathroom would be ‘considered “highly offensive” by any reasonable person,’ the case cited involved an intrusion into a single bathroom stall and not the presence of someone in the common area of a multi-user facility.”  After noting how the plaintiffs’ factual allegations about particular incidents involving transgender students in restrooms fell short of supporting the plaintiffs’ contentions about unwanted exposure of their bodies, Smith wrote, “the court does not find that a reasonable person would be offended by the presence of a transgender student in the bathroom or locker room with them, despite the possibility that the transgender student could possibly be in a state of undress more significant than Student A was in this case when the male plaintiffs same him.”  He concluded similarly regarding the other incidents described by the plaintiffs, and concluded they had not shown a likelihood that they would be able to establish liability under Pennsylvania’s invasion of privacy tort.

That could be the end of Smith’s analysis, since a finding that plaintiffs are likely to prevail would be necessary to ground a preliminary injunction against the District’s policy, but Smith, to be thorough, analyzed the irreparable harm factor that courts consider, concluding that because the District was providing single-user alternatives the individual plaintiffs would not be irreparable harmed if the policy was allowed to continue in effect. He concluded as well that because these two factors weighed against granting the injunction, there was no need to perform the “balance of harms” analysis that would necessarily follow if the plaintiffs had prevailed on the first two factors.

As noted above, the 3rd Circuit’s brief Judgement issued on May 24 described Judge Smith’s opinion as “exceptionally well-reasoned,” so it is likely that the “formal opinion” to follow will run along similar lines and probably quote liberally from Judge Smith.  Also, it would not be surprising were the court of appeals to give persuasive weight to decisions from other courts ruling on claims by transgender students to a right under Title IX and the 14th Amendment to use facilities consistent with their gender identity.  In the course of deciding those cases, the courts necessarily considered the same factual and legal issues presented by the Parents & Students cases.  In light of the judicial rulings so far in these “bathroom wars” cases, a consensus seems to have emerged in the federal judiciary that is part of a larger movement in the law in the direction of recognizing transgender civil rights claims under both the Equal Protection Clause in constitutional law and the statutory bans on discrimination because of sex.

In addition to ADF’s attorneys and the attorneys defending the school district, the court heard from ACLU attorneys representing the interests of transgender students in the Boyertown School District, including lead attorney Leslie Cooper with the ACLU LGBT Rights Project, lead attorney Mary Catherine Roper with the ACLU of Pennsylvania, and cooperating attorneys from Cozen O’Connor, a Philadelphia law firm.