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Federal Court Finds City of East Lansing Violated Free Exercise Right of Farmer Excluded from City’s Farmer Market Because His Wedding Rental Business Excludes Same-Sex Couples

Posted on: August 23rd, 2023 by Art Leonard No Comments

U.S. District Judge Paul L. Maloney granted summary judgment after a bench trial to Country Mill Farms (CMF) and its owner, Stephen Tennes, in their First Amendment Free Exercise lawsuit against the City of East Lansing, Michigan, which excluded CMF from the East Lansing Farmers Market (ELFM) because the company’s wedding hosting business was closed to same-sex couples. Country Mill Farms, LLC v. City of East Lansing, 2023 WL 5345236, 2023 U.S. Dist. LEXIS 146493 (W.D. Mich., Aug. 21, 2023).

The court premised its ruling on the Supreme Court’s decision in Fulton v. City of Philadelphia, 141 S. Ct. 1868 (2021), which held that an anti-discrimination policy that was part of a discretionary process (i.e., to which there were discretionary exceptions) was not a law of “general applicability” and thus was subject to strict scrutiny when a person was excluded from a government benefit because of their religious beliefs. That is, the government would have to show a compelling interest not to exercise its discretion to excuse compliance with the challenged policy. In Fulton, the Supreme Court found that the city of Philadelphia failed to show a compelling interest that justified not making an exception to its anti-discrimination policy for Catholic Social Services, which would not open its foster care vetting service, operated by contract with the city, to same-sex couples. In this case, the benefit is being able to participate in the Farmers Market program operated by the City of East Lansing, Michigan. The city has an ordinance prohibiting discrimination because of sexual orientation by places of public accommodation. Country Mill Farms LLC makes its facilities available for wedding celebrations, but its proprietor, Stephen Tennes, will not rent the premises for same-sex weddings due to his religiously based objections to same-sex marriage.

According to the facts found by Judge Maloney, Mr. Tennes operates his corporation as a family farm, selling fruits and vegetables. He is the sole owner and manager of the company. He adopted as a mission statement for his business to “glorify God by facilitating family fun on the farm and feeding families.” The court found that Tennes “stopped running haunted houses, something his father started, because the practice was not in line with his faith. He has declined to host bachelor and bachelorette parties for the same reason.” The wedding business is a significant part of the farm’s activities, the court noting that CMF has hosted as many as forty-four weddings in a year. “Tennes considers the celebration of weddings at CMF as ‘a calling from God for us to serve.’ His religious belief is that marriage is between a man and a woman. “Because of this sincerely held religious belief,” wrote Judge Maloney, “Tennes will not rent the venue for same-sex weddings.”

For “a number of years, through 2016,” CMF was invited to participate in East Lansing’s Farmers Market, which is run by the city government and has limited space for vendors. Most of the spots are filled by invitation, and vendors are supposed to comply with published Guidelines. A planning committee decides which vendors to invite “based on the guidelines and past experience with the vendor.” CMF received an inquiry on its social media website in August 2016 concerning its position on LGBT groups and responded that due to its sincerely held religious beliefs, “we do not participate in the celebration of a same-sex union. We have and will continue to respectfully direct wedding inquiries to another mid-Michigan orchard that has more experience hosting same sex weddings.” This statement came to the city’s attention. “In late August, the city reached out to CMF and, because of the social media message concerning same-sex weddings, asked it not to attend the ELFM the following weekend.” CMF responded to this by announcing it would no longer book future wedding ceremonies, upon which it was allowed to attend that weekend and for the rest of the 2016 season.

However, evidently missing the wedding business and its revenue, CMF decided to resume booking weddings, but not same-sex weddings, which it announced in December 2016. The city responded to this announcement by adding a new subsection to the published Guidelines for ELFM, stating that vendors should comply with the civil rights ordinance and the public policy against discrimination, and the planning committee did not invite CMF to participate in the 2017 ELFM. CMF then filed an application to participate, which the city denied, explaining in a latter to CMF that its “business practices” did not comply with the city’s public policies, and that its December social media announcement was a violation of the ordinance and the ELFM guidelines. Thus provoked, CMF and Tennes filed suit against the city.

The court found that the city’s decision to deny CMF’s application “substantially burdened Plaintiffs’ free exercise of religion,” and this decision was “motivated by religious beliefs. Plaintiffs were forced to choose between their religious beliefs and a government benefit for which CMF was eligible.”

The court found that the 2017 Vendor Guidelines for the ELFM “allow for the exercise of discretion in at least two ways, discretion that undermines the general applicability of the Guidelines. First, the Guidelines allow for discretion in selecting vendors for invitation and for approving annual vendor applications.” The guidelines list 11 factors to be considered by the planning committee in deciding whom to invite and which applications to approve, only one of which is complying with the city’s civil rights ordinances. The ELFM market manager testified at trial that the committee examines these factors “on a case-by-case basis to determine whether to invite or not invite a vendor,” and could decide not to invite based on any of the listed factors. The City Manager testified that the Guidelines “did not include any indication about how to weigh the different factors,” including the factor of compliance with the civil rights laws. Judge Maloney concluded that “this functionally unfettered discretion means that the Vendor Guidelines are not generally applicable and function as a mechanism for individualized decisions.” The Guidelines also expressly state that the Market Manager may “grant exceptions and accommodations on an individual basis.” The court saw this as a “mechanism for individualized exemptions not functionally different from the policy in Fulton. And, the mere existence of the mechanism, not its exercise, ‘renders a policy not generally applicable.’”

Judge Maloney wrote that the provision on compliance with the civil rights law “is not generally applicable because it permits secular conduct through exemptions while prohibiting the same conduct motivated by religious beliefs.” For example, the city’s civil rights law “does not apply to private clubs or other establishments not open to the public” and “contains provisions that allow for discretionary exemptions,” such as “discretion to grant employment exemption for bona fide occupational qualifications” and reserving to the city a decision whether discrimination by a city contractor is a “material breach” of a city contract. The judge runs through all the provisions of the city’s civil rights ordinance that appear to provide discretion to treat various breaches as not material (and thus not disqualifying).

Furthermore, applying the strict scrutiny test, the court found that the city had “not established that the decision to deny CMF a vendor license is narrowly tailored to meet a compelling governmental interest.” The court observed that due to the discretionary exceptions that could be made under the laws, the city could to business with an entity that discriminates on the basis of sexual orientation, and had “not offered any particular justification for enforcing the nondiscrimination ordinance against Plaintiffs. Nor has Defendant explained why it declines to offer Plaintiffs an exemption from the nondiscrimination ordinance when the ordinance provides objective and discretionary exemptions to other business entities.”

The court also rejected the city’s argument that the plaintiffs “were not engaged in conduct associated with the practice of their religion,” pointing out the Supreme Court’s broad interpretation of the scope of free exercise. Having found that the city’s exclusion of CMF from the farmers’ market imposed a substantive burden on free exercise which had not been justified by a compelling reason, the court granted judgment to the Plaintiffs on their free exercise claim. This Order does not discuss what remedy the court might impose to enforce its judgment, but the clear signal of the opinion is that CMF’s future participation in the farmers’ market cannot be conditioned on its agreement to host same-sex weddings.

CMF is represented by attorneys associated with Alliance Defending Freedom. (No surprise there!) The Michigan Catholic Conference filed an amicus brief in support of CMF. Judge Maloney was appointed by President George W. Bush.

Alliance Defending Freedom Asks Supreme Court to Intervene in West Virginia Transgender Sports Case

Posted on: March 13th, 2023 by Art Leonard No Comments

Alliance Defending Freedom, the conservative religious litigation group, representing as intervening defendant a cisgender girl who claims it is unfair to require her to compete in track and field against a transgender girl, applied to the Supreme Court to reverse an order by a three-judge panel of the 4^th Circuit Court of Appeals allowing B.P.J., a transgender girl, to continue competing while the court of appeals considers her appeal of an adverse ruling by the federal district court. State of West Virginia v. B.P.J., No. 22A800 (23-1078).

The actual defendants in the case are the State of West Virginia, its State Board of Education, the West Virginia Secondary School Activities Commission, and the state Education Superintendent. ADF’s Application, addressed to Chief Justice John G. Roberts, Jr., who receives such applications arising from courts within the 4^th Circuit, was docketed on March 13. Chief Justice Roberts ordered B.P.J. to respond by noon on March 20.

The Application was accompanied by two amicus briefs, from “67 Female Athletes, Coaches, Sports Officials, and Parents of Female Athletes” and from “Alabama, Arkansas, and 19 Other States.” ADF apparently acted quickly to round up support.

The 4^th Circuit’s February 22 Order, issued by a 2-1 vote of the panel, provided no explanation for its decision to reject District Judge Joseph Goodwin’s refusal to stay the Order that he had issued early in January, when he had concluded that B.P.J. was not likely to prevail on her claim that West Virginia’s Sports Act violated her federal constitutional and statutory rights. Goodwin issued an opinion on February 7 reiterating his refusal to stay his ruling, which prompted B.P.J. to seek quick relief from the 4^th Circuit before the spring track and field season commenced.

The ADF application is likely to draw the Supreme Court into one of the most hotly disputed issues in transgender law: whether federal law requires that transgender girls be treated as girls for purposes of athletic competition. According to ADF’s Application, 17 states have adopted these bans, and similar proposals are pending in more state legislatures.

The 2^nd Circuit Court of Appeals recently announced that it was taking up the same question by the full bench of that court (13 active judges) in relation to Connecticut’s policy of letting transgender girls compete, thus vacating a 3-judge panel decision that had upheld the dismissal of a challenge to that state’s policy that was brought by three cisgender girls who had been beaten in competition by transgender girls. The plaintiffs in that case argued that the state’s policy violated their Equal Protection and Title IX rights.

When Judge Goodwin first encountered B.P.J.’s lawsuit, filed by Lambda Legal and the ACLU, in the context of a pretrial motion for a preliminary injunction, he granted the preliminary injunction early in 2021, allowing B.P.J. to fulfil her wish upon beginning middle school to be able to participate in spring girls’ track and field events based on her gender identity rather than what the state would refer to as her “biological sex,” which it defines as “reproductive biology and genetics at birth.” She had identified as a girl since early childhood, but was told she would not be able to compete as a girl due to the recently enacted state law.

Judge Goodwin, Senior District Judge who was appointed by President Bill Clinton, narrowed his preliminary injunction to B.P.J. as an individual, reserving for later decision the question whether the state law is unlawful on its face. After refusing to dismiss B.P.J.’s complaint, and reviewing the voluminous record compiled through discovery, Judge Goodwin changed his mind and decided that for purposes of athletic competition transgender girls are not similarly situated with cisgender girls, and thus it was not unlawfully discriminatory for the state to exclude them from girls’ athletic competition. In that January 2023 ruling, he ordered the preliminary injunction dissolved and subsequently refused to “stay” that dissolution while B.P.J. appealed to the 4^th Circuit.

It is quite unusual for a court of appeals panel to issue an order without explanation to revive a preliminary injunction that had been ordered dissolved in a lengthy decision by the district court, and ADF played up this lack of explanation in its Application, suggesting that there was something suspect about it, as it was not accompanied by a detailed explanation of why two of the three panel judges disagreed with Judge Goodwin.

In order to issue a preliminary injunction against the application of a state law, a court has to find that the plaintiff’s challenge to the law is likely to succeed and to explain why, to justify upsetting the legal status quo established by the law. If the 4^th Circuit panel had added to their Order that they agreed with and incorporated by reference Judge Goodwin’s earlier explanation why a preliminary injunction was merited, ADF would not be in a position to make an argument that may be persuasive to the Supreme Court as providing a way to dispose of this Application without stating its own view on the merits of the case.

The 4^th Circuit has proved friendly in the past to the argument that excluding transgender students from equal access to all school programs and facilities violates their rights, most notably in its 2020 decision in Grimm v. Gloucester County School Board, in which it held that the Equal Protection Clause and Title IX of the Education Amendments of 1972 required a public high school to allow a transgender boy to use the boys’ restroom facilities. Ultimately, however, Judge Goodwin concluded that sports competition presented distinctly different issues, and that biological sex was relevant in this context because, he was convinced, allowing a transgender girl to compete in girls’ sports presented unfair competition to cisgender girls.

ADF drove these points home in its Application, asserting that every time B.P.J. competed, she was depriving a cisgender girl of an opportunity to compete, and every time she beat cisgender girls in competition, she was depriving them of the victories they deserved. ADF pointed to the legislative history of Title IX, which at the time was described as an effort by Congress to provide more opportunities for girls to participate in sports, arguing that letting transgender women compete was undermining the original goal of the statute.

ADF sharply contested the argument that the Supreme Court’s Bostock ruling from 2020, which interpreted Title VII of the Civil Rights Act of 1964 to make it unlawful for an employer to discharge an employee because of their transgender status, could be translated to Title IX without modification. ADF argued that a rule relevant to employee hiring and discharge was not appropriately applied to the issues in this case, especially noting that regulations under Title IX clearly allow for separate teams and competitions for boys and girls, based on a view that allowing “boys” to compete on girls’ teams would deprive girls of equal opportunity to engage in athletic competition.

B.P.J.’s argument is that a categorical exclusion is inappropriate, that each transgender student should be evaluated on an individual basis depending on the nature of their transition. ADF argued that this was a unworkable approach, that would mire school districts and courts in difficult and time-consuming determinations about whether a particular transgender girl should be allowed to compete. They also posed the disingenuous suggestion that any boy could just declare himself a girl to play on a girls’ team, a distortion of B.P.J.’s arguments.

In recent years, the Court has been increasingly deciding significant issues of law and policy in the so-called “shadow docket,” responding to motions and applications for relief from lower court decisions. These rulings are made without the full trappings of a plenary review, which would include full briefing and oral arguments, that accompanies a grant of certiorari and stretches out the process over a significant period of time. The “shadow-docket” rulings come quickly, and frequently without extensive written explanation.

ADF’s Application also couches its concerns in the language of federalism, urging the court to defer to the state legislature’s judgment in an area – regulation of public education – that is traditionally a state rather than a federal function. “This case implicates a question fraught with emotions and differing perspectives,” ADF writes. “The decision was the West Virginia Legislature’s to make. The end of this litigation will confirm that it made a valid one. In the meantime, the Court should set aside the Fourth Circuit’s unreasoned injunction and allow the State’s validly enacted law to go back into effect.”

District Court Rejects Constitutional Challenge to Washington State’s Conversion Therapy Ban

Posted on: September 2nd, 2021 by Art Leonard No Comments

Senior U.S. District Judge Robert J. Bryan has dismissed constitutional challenges to Washington State’s Conversion Therapy ban (codified in Wash. Rev. Code Sections 18.130.20 and 18.130.180) brought by Brian Tingley, a licensed Marriage and Family Therapist, who asserted a violation of his free speech and free exercise of religion rights, as well as alleging a violation of due process. Tingley v. Ferguson, 2021 WL 3861657, 2021 U.S. Dist. LEXIS 164063 (W.D. Wash., Aug. 30, 2021). Equal Rights Washington had intervened to help named defendants, Washington Attorney General Robert W. Ferguson and others, in defending the law. After Alliance Defending Freedom (ADF) filed suit on Tingley’s behalf, it sought a preliminary injunction against enforcement of the law, while defendants filed a motion to dismiss the case. Judge Bryan granted defendants’ dismissal motion, and denied intervenors’ dismissal motion and Tingley’s motion for preliminary injunction as moot. Judge Bryan’s ruling sets up the case for ADF to appeal, based on its argument that 9^th Circuit decisions rejecting similar challenges to California’s Conversion Therapy ban are no longer “good law” in light of the Supreme Court’s ruling in NIFLA v. Becerra, 138 S. Ct. 2361 (2018).

Tingley alleged that he has violated the Washington law by providing therapy sought by minors who were unhappy about their same-sex attractions or discomfort with their biological gender. Although his religious beliefs underly his opinions about sexual orientation and gender identity, he does not identify as a religious counselor who would be expressly exempted under the law. The court determined that Tingley had individual standing to bring his challenge, but not representative standing for his clients.

To cut to the quick, Judge Bryan held that the 9^th Circuit’s opinions in Pickup v. Brown, 740 F.3d 1208 (9^th Cir. 2014) and subsequent cases concerning the California law, are binding precedent in this case. The essence of ADF’s free speech argument is that the Supreme Court’s rejection of a distinct category of “professional speech” subject to a lesser standard of 1^st Amendment expression than other forms of speech in NIFLA v. Becerra had essentially overruled Pickup, and pressed home this point by citation to Pacific Coast Horseshoeing School, Inc. v. Kirchmeyer, 961 F.3d 1062 (9^th Cir. 2020), in which that court noted in a citation that NIFLA had “abrogated” Pickup. Not mentioned in Judge Bryan’s opinion is that Justice Clarence Thomas’s opinion for the Supreme Court in NIFLA spoke disparagingly about the treatment of “professional speech” in two conversion therapy cases, Pickup and King v. Governor of New Jersey, 767 F.3d 216 (3^rd Cir. 2014), a similar ruling upholding New Jersey’s conversion therapy law. Judge Bryan rejected this argument, finding that the basis of the Pickup ruling was a determination that the California law regulated professional conduct, the provision of a “therapy,” which incidentally involved speech, but the law was focused on the conduct, not the speech.

Bryan noted as well that the plaintiffs in Pickup and the New Jersey case had petitioned the Supreme Court after the NIFLA ruling to order the 9^th and 3^rd Circuits to recall their decisions concerning conversion therapy bans, but the Supreme Court rejected those petitions. See Pickup v. Newsom, 139 S. Ct. 2622 (petition denied, May 20, 2019); King v. Murphy, 139 S. Ct. 1567 (petition denied, April 15, 2019).

Conceptualized as a regulation of licensed professional conduct, wrote Bryan, “the Washington Conversion Law is subject to rational basis review, it is rationally related to the State’s asserted interest ‘in protecting the physical and psychological well-being of minors, including lesbian, gay, bisexual, and transgender youth, and in protecting its minors against exposure to serious harm caused by conversion therapy.’” Thus, the court found no violation of Tingley’s free speech rights.

On the Due Process claim, Bryan rejected Tingley’s assertion that the law was impermissibly vague, noting that the 9^th Circuit had rejected this argument in Pickup regarding the similarly-worded California statute and finding that a “reasonable person” could figure out that what was outlawed was therapy intended to “alter a minor patient’s sexual orientation” or gender identity. The 9^th Circuit did not find either of those terms to be vague, finding ample definitions in dictionaries as well as the definitional provisions of the statutes.

As to the Free Exercise argument, Judge Bryan found that the 9^th Circuit had rejected a similar argument in Welch v. Brown, 834 F. 3d 1041 (9^th Cir. 2016), a companion case decided by the 9^th Circuit together with Pickup. The law does not target religion. “Like in Welch,” wrote Bryan, “the object of the Conversion Law is not to infringe upon or restrict practices because of their religious motivation. Its object is to ‘protect the physical and psychological well-being of minors. . . The Conversion Law does not, either in practice or intent, regulate the way in which Plaintiff or anyone else practices their religion. Instead, it ‘regulates conduct only within the confines of the counselor-client relationship,’” citing Welch. “Plaintiff is free to express and exercise his religious beliefs; he is merely prohibited from engaging in a specific type of conduct while acting as a counselor.”

Bryan also rejected ADF’s argument that because both speech and free exercise were implicated, under a “hybrid rights” doctrine the law was subject to a higher level of judicial scrutiny. “It is not clear that the hybrid rights exception ‘truly exists,’” he wrote, quoting the 9^th Circuit’s opinion in Parents for Privacy v. Barr, 949 F. 3d 1210 (2020), but even assuming that it does, “the doctrine would compel a higher level of scrutiny for claims that implicated multiple constitutional rights, in this case free exercise and free speech. Because the Court already established that Plaintiff’s claim does not implicate free speech, the hybrid rights exception does not apply and does not undermine the holding of Welch.”

ADF will certainly appeal this ruling to press the argument that NIFLA has “abrogated” Pickup and Welch and compels a ruling for their client on the free speech claim. Striking down Conversion Therapy bans is a major item on ADF’s anti-LGBTQ agenda.

Intervenor Equal Rights Washington is represented by National Center for Lesbian Rights and pro bono counsel Raegen Nicole Rasnic of Skellenger Bender, PS, Seattle. The court also received a brief on behalf of The Trevor Project, the Foundation for Suicide Prevention, and the American Association of Suicidology, identified as “Interested Partys.”

Judge Bryan was appointed to the court by President Ronald W. Reagan.

Federal Court Temporarily Blocks New York State from Requiring a Religious Adoption Agency to Provide Services to Married Same-Sex Couples

Posted on: October 17th, 2020 by Art Leonard No Comments

New Hope Family Services, which describes itself as a Christian adoption agency licensed by New York State to provide adoption services, has won a preliminary injunction to block New York’s Office of Children and Family Services (OCFS) from closing the agency because of its refusal to provide services to married same-sex couples. New Hope Family Services, Inc. v. Poole, 2020 WL 5887296, 2020 U.S. Dist. LEXIS 183926 (N.D.N.Y., October 5, 2020).

New Hope sued Sheila J. Poole, OCFS’s Commissioner, after OCFS instructed New Hope to prepare to close down its adoption services if was unwilling to change its policy and work with married same-sex couples as required by a state regulation. U.S. District Judge Mae A. D’Agostino issued the injunction after being directed by the U.S. 2^nd Circuit Court of Appeals to reconsider her prior denial of a preliminary injunction at the same time that she dismissed New Hope’s lawsuit. The 2^nd Circuit panel reversed the dismissal decision. See 966 F. 3d 145 (2^nd Cir. 2020), reversing and remanding 387 F.Supp.3d 194 (N.D.N.Y. 2019).

Under New York law, only an “authorized agency” can evaluate potential adoptive parents, match them with children needing adoption, and make recommendations to a court that will ultimately grant the adoption. Evangelical Family Service was formed in 1965 by a Christian minister to undertake this work in Syracuse and was granted a two-year certificate of incorporation by the state. When the certificate came up for renewal, the state extended permanent certification. Eventually the agency was renamed New Hope Family Services. At that time, New York’s adoption statute limited the right to adopt children to “an adult unmarried person or an adult husband and his adult wife.”

In 2010, the legislature amended the law to allow authorized agencies to place children for adoption with “an adult unmarried person, an adult married couple together, or any two unmarried adult intimate partners together.” This amendment updated the statute to comply with what the courts had been doing, as the New York Court of Appeals had recognized second-parent adoptions for same-sex couples during the 1990s. The adoption statute empowers OCFS to adopt regulations for enforcing statutory rights, which led it to adopt a non-discrimination regulation and to inform all authorized agencies that they could not discriminate against same-sex couples or unmarried couples.

After New York’s Marriage Equality Law went into effect in July 2011, of course, married same-sex couples would be covered by the amended adoption statute, since the Marriage Equality Law adopted a policy of equal rights for same-sex marriage couples, and authorized agencies were so advised. In 2015, the Supreme Court found that same-sex couples have a federal constitutional right to marry, and their marriages are entitled to the same treatment under state law as all other marriages.

Regardless of these developments, New Hope retained its existing policy, which was to limit its services to unmarried adults who were not living together with other adults in an intimate relationship, and to heterosexually married adults. If New Hope was approached for services by individuals or couples who did not come within this policy, it would offer to refer them to other agencies for adoption services. It refers to this policy as “recusal and referral.”

In 2018, OCFS decided to audit the policies of all authorized agencies. It had never received a complaint about denial of services by New Hope, so this was the first time OFCS was confronted by New Hope’s non-compliant policy. After some conversations between the office and New Hope, in the course of which OCFS staff made some statements that New Hope (and the 2^nd Circuit panel) seized upon as showing “hostility” to New Hope’s religious beliefs, the written ultimatum was delivered late in the fall of 2018, setting a deadline for New Hope to adjust its policy by the end of November. Instead, New Hope filed this lawsuit, represented by Alliance Defending Freedom, a religious-freedom litigation organization that frequently challenges gay rights policies in the courts.

New Hope argued that the regulation went beyond the statute by compelling authorized agencies to provide services to same-sex couples, whereas the statute was worded in permissive language – that agencies were allowed to provide service to such couples. At the time the statute was adopted, Governor David Paterson issued a statement that it would not require any agencies to change their polices. Thus, New Hope argued, OCFS was going beyond its authority in trying to force New Hope to change its policy. Furthermore, New Hope argued, requiring it to serve same-sex couples against its religious beliefs would violate its First Amendment rights of free speech and free exercise of religion, and, citing the Supreme Court’s Masterpiece Cakeshop decision, it claimed that OCFS had expressed hostility to New Hope’s religious beliefs. New Hope sought a preliminary injunction to block OCFS from taking action against it while the lawsuit was pending.

The state moved to dismiss the lawsuit. Judge D’Agostino granted the state’s motion in May 2019, finding that the regulation was within the scope of the statute and did not violate New Hope’s constitutional rights. At the same time, she denied the motion for injunctive relief. New Hope appealed to the 2^nd Circuit, which reversed the dismissal in July 2020 and sent the case back to Judge D’Agostino. The three-judge Circuit panel concluded that New Hope’s allegations were sufficient to put into play its constitutional claims as well as its claims about the limited scope of the adoption statute as permissive rather than mandatory, and directed Judge D’Agostino to reconsider the issue of the preliminary injunction in that light. The three-judge panel, which also mentioned the “hostility” issue, retained jurisdiction of the case, advising that if D’Agostino issued a new decision that was appealed, the appeal would go to the same three-judge panel.

Given the realities of the situation, it was foreordained that D’Agostino would issue the injunction, although there were signs in her opinion that she had not changed her mind about her original analysis but was basically following the directions of the court of appeals, her explanations flowing from their decision. In one footnote, responding to the issue of “hostility,” she wrote: “In conducting its analysis, the Court cannot ignore the drastic difference in the circumstances which have historically led to findings of religious hostility and the circumstances of the present case. . . Here, the only statements upon which the Second Circuit relies indicate, at worst, that OCFS intends to ensure compliance with anti-discrimination law in the adoption process, regardless of an organization’s religious beliefs. The Court finds the argument that these statements indicate hostility tenuous.” But she acknowledged that she was bound by the 2^nd Circuit’s opinion to credit this argument for purposes of deciding whether to issue the preliminary injunction.

At the heart of the constitutional free exercise issue is the U.S. Supreme Court’s 1990 decision Employment Division v. Smith, 494 U.S. 873, which ruled that there is no constitutional right under the Free Exercise Clause for individuals and organizations to refuse to comply with religiously-neutral laws of general application that incidentally burden their free exercise rights. In that case, however, the Supreme Court recognized that a government policy that burdens other rights as well as religious free exercise rights (a so-called “hybrid rights case”) presents a different issue and may carry a higher burden of justification by the government. Judge D’Agostino had originally responded to this point by rejecting New Hope’s compelled speech argument, labeling as “government speech” any recommendation that they would make to a court to approve an adoption by a same-sex couple, on the premise that as an “authorized agency” they were performing an inherently governmental function on behalf of the state, applying state-specified criteria, and they were not speaking for themself. The 2^nd Circuit panel disagreed, finding that the state gave authorized agencies substantial discretion, so their speech was entitled to First Amendment protection. Furthermore, New Hope’s argument that the regulation went beyond the scope of the statute was also arguable, given the statute’s permissive rather than mandatory wording. In that case, New Hope should be entitled to litigate the case.

Concerning the public interest, which is considered on a motion for injunctive relief, closing down New Hope would reduce the number of agencies in its geographical area providing adoption services, it claims to never have been approach by same-sex couples seeking its services, and in the past New Hope had been repeatedly praised for the high quality of its services, so on balance it was arguable that the public interest supports keeping it open while the case continues.

The New Hope case is very similar to a case that will be argued in the Supreme Court on November 4, the day after election day, Fulton v. City of Philadelphia, in which Catholic Social Services is suing the City of Philadelphia over the city’s refusal to renew its contract with CSS to participate in the city’s foster care system. CSS refuses to provide its services to same-sex couples seeking to be foster parents.

In granting CSS’s petition to review a decision in favor of the city by the U.S. Court of Appeals for the 3^rd Circuit, see 922 F.3d 140 (3^rd Cir. 2019), CSS specifically asked the Supreme Court both to reconsider its ruling in Employment Division v. Smith and to consider whether requiring a religious agency to violate is principles in order to participate in the child welfare system violates its 1^st Amendment rights. There are already at least four members of the Court who have signaled their desire to reconsider Employment Division. The probable addition of Judge Amy Coney Barrett to the Court may well tip the Court over to a majority to overrule or narrow the Employment Division precedent, which could affect litigation in other cases challenging Trump Administration policies to carve broad religious and moral objection protection out of non-discrimination rules.

It is unlikely that Judge D’Agostino would issue a final ruling in the New Hope case until after the Supreme Court rules in the CSS case. Such a ruling is unlikely to come before the beginning of 2021 and theoretically could come as late as June. In the meanwhile, the preliminary injunction blocks OCFS from taking any action to shut down New Hope’s adoption activities.

Federal Court Bars Enforcement of Louisville Public Accommodations Ordinance Against A Wedding Photographer Who Opposes Marriage Equality

Posted on: August 16th, 2020 by Art Leonard No Comments

Justin Walker, recently confirmed by the Senate to be a judge of the U.S. Court of Appeals for the District of Columbia Circuit, completed some unfinished business on his docket as a U.S. District Judge in Louisville, Kentucky, by issuing an order on August 14 barring the Louisville Metro Human Relations Commission from enforcing the sexual orientation provision of the city’s public accommodation ordinance against a wedding photographer who does not want to photograph same-sex weddings and wants to be able to announce and explain her opposition on her website. Chelsey Nelson Photography LLC v. Louisville/Jefferson County Metro Gov’t, 2020 U.S. Dist. LEXIS 146246 (W.D. Ky, Aug. 14, 2020).

In 1999, Louisville became the first municipality in Kentucky to ban anti-gay discrimination. Among other things, the ordinance prohibits businesses from denying goods or services because of the sexual orientation of a patron, or to communicate to the public that it will refuse such services or treat people as unwelcome because of their sexual orientation. The Commission concedes in this case that a photographer’s refusal to photograph same-sex weddings would violate the ordinance, and has not “disavowed” any intention to prosecute such an action.

Chelsey Nelson is a photographer whose business includes weddings. Although she has not been asked to photograph any same-sex weddings, she claims that her religious beliefs would compel her to refuse such business, and she would like to avoid such confrontations by being able to advertise on her website that she will not provide such service. Represented by Alliance Defending Freedom, the anti-gay litigation group, she filed a lawsuit seeking a court order that she is not required to comply with the ordinance and can publish her views without fear of liability. She claims that the existence of the ordinance has chilled her ability to exercise her constitutional freedom of speech and free exercise of religion rights under the First Amendment by deterring her from using her website to communicate this message.

Judge Walker is a family friend and protégé of Senator Mitch McConnell, who recommended his appointment to President Trump and has shepherded his nomination through two rounds of Senate confirmation votes. Walker is a leader of the conservative Federalist Society branch in Louisville, where he worked as a lawyer and law professor before taking the bench. Thus, his decision to deny the city’s motion to dismiss the case in large part, as well as his decision to grant in part Nelson’s motion for preliminary relief pending an ultimate trial of the merits (presumably before a different district judge as Walker leaves for Washington), is not surprising.

What may be surprising, however, is some of the gay-friendly language that permeates his decision. Assuming the sincerity of what he has written, the youthful Walker (born 1982) is part of a generation of young conservatives who have generally accepted gay rights. He begins his decision praising the activists who campaigned for many years to get the Louisville ordinance passed, and comments that our society is “better” for prohibiting anti-gay discrimination.

Finding that the plaintiff has a good chance of prevailing on the merits of her claim is a prerequisite for ordering preliminary injunctive relief against enforcement of a law that, on its face, is not unconstitutional. Walker premises his conclusion that Nelson meets this test by reference to the Supreme Court’s unanimous decision in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, in which the Court held that the organizers of the Boston St. Patrick’s Day parade were not required to allow a gay Irish-American group to march under their own banner if the parade organizers did not want to include a gay rights message in their parade. The Massachusetts Supreme Judicial Court had ruled by 4-3 that Massachusetts’ public accommodations law, which prohibited sexual orientation discrimination, required the parade organizers to let the gay group march.

In reversing, the Supreme Court found that the parade was an expressive activity protected by the First Amendment’s freedom of speech provision. The Court held that forcing the organizers to include the gay group would be unconstitutional compelled speech, imposing the gay group’s message on the parade organizer’s expressive activity.

In this case, Judge Walker embraced the analogy to requiring a photographer to take pictures she did not want to take as compelled speech, and that the provision making it unlawful for her to publicize her refusal to photograph same-sex weddings was a content-based restriction on her speech. Because her speech was motivated by her religious beliefs, the constitutional problem was compounded, in Judge Walker’s view. And he noted that the Supreme Court has found that government-compelled speech and punishment of religious expression impose irreparable injury, another test for preliminary relief.

Court decisions on this issue are divided. In 2013, New Mexico’s Supreme Court found that a wedding photographer violated the state’s public accommodation law by refusing to photograph a same-sex commitment ceremony, and the Supreme Court of the United States denied a petition to review that case.

But more recently the 8^th Circuit Court of Appeals ruled in favor of a videographer who did not want to film same-sex weddings, and the Arizona Supreme Court ruled that a custom stationer did not have to create invitations for a same-sex wedding, both relying on First Amendment free speech rights. What the more recent cases have in common is that they are part of a broader litigation strategy by Alliance Defending Freedom and other conservative litigation groups, which having lost the battle against marriage equality, seek to establish broad constitutional exemptions for religious opponents of marriage equality from having to comply with anti-discrimination laws. These are “affirmative litigation” cases brought to challenge the application of the law. They do not involve actual denials of service to particular individuals, unlike the famous Masterpiece Cakeshop case, or similar cases in other jurisdictions where same-sex couples have filed discrimination claims after being denied goods or services.

The municipal defendants in this case could seek to appeal the grant of injunctive relief to the 6^th Circuit Court of Appeals (in Cincinnati), or could decided to await a final ruling on the merits before instituting an appeal. At this point, local media coverage of the case has undoubtedly solved Chelsey Nelson’s problem of communicating her stance to the public, so it seems unlikely that any same-sex couples planning their weddings in Louisville are going to approach her for service. The injunction specifically protects her from being investigated by the Louisville Commission, but does not prevent the Commission from enforcing the ordinance against any other business that is actually violating the anti-discrimination ban, so there is no pressing urgency for an appeal.

Alliance Defending Freedom Asks Supreme Court to Revisit Religious Exemption Issue

Posted on: October 1st, 2019 by Art Leonard No Comments

Alliance Defending Freedom (ADF), a religious freedom litigation group, is asking the Supreme Court to take a second look at Arlene’s Flowers v. State of Washington, No. 19-333 (Docketed September 12, 2019), in which the Washington Supreme Court held that a florist who refused to provide her usual custom floral design and installation wedding services for a same-sex couple had violated the state’s anti-discrimination law, and did not have a valid 1^st Amendment defense. The Washington court’s original decision was vacated by the Court in June 2018 for reconsideration in light of the Court’s ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018), but the Washington Supreme Court reiterated its earlier holding, 441 P.3d 1203 (Wash. 2019), finding that the record of proceedings in the Superior Court and the Supreme Court in the earlier litigation showed no evidence of hostility to religion and thus was not affected by the Supreme Court’s ruling in Masterpiece.

The Petition proposes two questions for review: 1. Whether the State violates a floral designer’s First Amendment rights to free exercise and free speech by forcing her to take part in and create custom floral art celebrating same-sex weddings or by acting based on hostility toward her religious beliefs; and 2. Whether the Free Exercise Clause’s prohibition on religious hostility applies to the executive branch.

In the first question, the Petitioner asks the Court to take up the underlying constitutional issues in Masterpiece Cakeshop, which the Court evaded in its opinion, and to resolve them once and for all, pointing to litigation from around the country in which small businesses had declined to provide goods or services for same-sex weddings, based on the religious beliefs of the proprietors, and had been hauled into state human rights commissions or courts on charges of violating anti-discrimination laws. There have been mixed results in these cases. Beginning with a recalcitrant wedding photographer in New Mexico and continuing with cases involving bakers, florists, commercial wedding venues, stationers and videographers, administrative agencies and courts consistently ruled against allowing religious belief exemptions from generally-applicable anti-discrimination laws covering sexual orientation. However, more recently, there has begun what may be a pendulum swing in the opposite direction, sparked in part by persistent appeals by ADF from adverse administrative and trial court rulings in affirmative litigation seeking declaratory judgments to establish religious exemptions.

In Masterpiece, the Court found several grounds taken together upon which to reverse the Colorado Court of Appeals’ ruling against the baker, most notably characterizing some public comments by Colorado commissioners that the Court found to evidence open hostility to the baker’s religious views. The Court also noted an inconsistency in the Colorado Commission’s dismissal of complaints against bakers by a religious provocateur who sought to order cakes decorated to disparage same-sex marriages and was turned down. The Court also noted that at the time the couple approach the baker, same-sex marriage was not yet legal in Colorado, so the baker could have believed he had no obligation to make such a cake. While reasserting the general principle that businesses do not enjoy a religious freedom exemption from complying with public accommodation anti-discrimination laws, the Court observed that litigations raising religion freedom claims are entitled to a “neutral” forum to decide their cases, not one evidencing hostility to their religious views.

In Arlene’s Flowers, ADF had filed a statement with the Court after Masterpiece suggesting that evidence of hostility could be found in that case, and the Washington Supreme Court took the remand as a charge to scour the record for signs of such, which it did not find. The Washington court read Masterpiece to be focused solely on the hostility or non-neutrality of the forum deciding the case. That case did not involve a hearing before an administrative agency, as the first decision was by the trial court.

In its second proposed question, ADF argues that this was error by the Washington Supreme Court, contending that while the Masterpiece ruling was based on open hostility by commissioners, it could not properly be read to impose a ban on governmental hostility only on government actors performing the function of adjudicating cases. ADF argues that the Attorney General of Washington evinced hostility and discrimination against religion by seizing upon news reports to come down hard on the florist, threatening litigation if she did not certify that in future should would provide her services to same-sex couples for weddings, making public comments criticizing religious objection to providing such services, and failing to bring similar action based on news reports about a coffee-shop owner expelling “Christians” from his establishment “based on religious views they expressed on a public street.” ADF also criticized as “unprecedented” the Attorney General’s action in suing under the state’s Consumer Protection Law as well as the anti-discrimination law.

The Petition’s statement of facts is artfully written to suggest a saintly woman who loves gay people and happily sells them flowers for a variety of occasions, but just balks at providing custom weddings services based on her sincerely-held religious beliefs. It argues that there is no evidence in the record of hostility toward gay people by the florist, emphasizing the long relationship she had selling floral goods to the men whom she turned down for wedding-related services, and maintaining that she had not turned down their business because they were gay but rather due to her religious objections to their wedding, and trying to draw that distinction as requiring dismissal of the discrimination complaint entirely.

The Petition argues that the Washington Supreme Court took too narrow a view of the Supreme Court’s doctrine concerning the obligation of the government to refrain from hostility towards religion, pointing to cases where the Court had found legislatures as well as adjudicators to have violated the 1^st Amendment, and argued that executives, such as the Attorney General, were no less bound by the First Amendment. The Petition builds on a recent ruling by the 8^th Circuit in the videographer case reported last month, Telescope Media Group v. Lucero, 2019 WL 3979621 (Aug. 23, 2019), and seeks to position the Petitioner, a florist, in the same category of First Amendment expression. In effect, the Petition asks the Court to hold that any business that engages in creative expression for hire cannot be compelled to provide its services for an activity of which it disapproves on religious grounds.

Without making it a central part of the argument, the Petition notes several instances in which various members of the Court have suggested a need to reconsider its long-standing precedent in Employment Division v. Smith, 494 U.S. 872 (1990), intimating that this is the ideal case to do so. That was the case that reversed decades of 1^st Amendment free exercise precedents to hold that religious objectors do not enjoy a privilege to refuse to comply with religiously-neutral state laws of general application that incidentally may burden their free exercise of religion. Employment Division prompted Congress to pass the Religious Freedom Restoration Act, applying the pre-Employment Division caselaw to the interpretation of federal statutes, and leading many states to pass similar laws. A ruing overruling Employment Division and reinstating prior would law would, in effect, constitutionalize the Religious Freedom Restoration Act, making it more difficult in many cases for LGBTQ people suffering discrimination to vindicate their rights through legislative action, since the state and federal legislatures cannot overturn a Supreme Court constitutional ruling.

8th Circuit Revives Videographer’s 1st Amendment Claim Against Having to Make Same-Sex Wedding Videos

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

A three-judge panel of the U.S. Court of Appeals for the 8^th Circuit ruled by a vote of 2-1 on August 23 that a commercial videographer could assert a 1^st Amendment claim that it was privileged to refuse to make wedding videos for same-sex couples, as an exemption from compliance with Minnesota’s Human Rights Act, which expressly forbids public accommodations from discrimination because of a customer’s sexual orientation. Telescope Media Group v. Lucero, 2019 U.S. App. LEXIS 25320, 2019 WL 3979621. The court reversed a decision by U.S. District Judge John R. Tunheim, which had dismissed the videographer’s suit seeking a declaratory judgment and injunctive relief against Minnesota’s Department of Human Rights. See Telescope Media Group v. Lindsey, 271 F. Supp. 3d 1090 (D. Minn. 2017).

Circuit Judge David Stras, an appointee of President Donald Trump, wrote for the majority, which included Circuit Judge Bobby Shepard, an appointee of President George W. Bush. The dissent was by Circuit Judge Jane Kelly, who was appointed by President Barack Obama, and is the only Democratic appointee now sitting on the 8^th Circuit in either an active or senior capacity. District Judge Tunheim was appointed by President Bill Clinton.

Carl and Angel Larsen, who make commercial videos under the corporate name of Telescope Media Group, decided they wanted to expand their business into wedding videos, but because of their religious beliefs, they did not want to get into this line of work if they would be required to make videos for same-sex weddings. Anticipating that a refusal to make such videos would bring them into conflict with Minnesota’s Human Rights Law, the filed an action in federal district court seeking a ruling that they had a 1^st Amendment right to refuse such business. They argued that making wedding videos is an expressive activity protected by the Free Speech Clause, and that, although the Supreme Court has ruled that people are not excused from complying with neutral state laws of general application based on their religious beliefs, there was an argument that when a religious free exercise claim is intermingled with a claim based on another constitutional right (in this instance, free speech), the state may be required to accommodate the person claiming constitutional protection against enforcement of the state law.

Judge Tunheim rejected their constitutional arguments, dismissing their lawsuit, and they appealed to the 8^th Circuit. Their case presents a parallel to one of the earliest appellate rulings rejecting a constitutional exemption from complying with a state public accommodations law on similar facts: Elane Photography, LLC v. Willock, 309 P. 3d 53 (N.M. 2013), cert. denied, 134 S. Ct. 1787 (2014). In that case, the New Mexico Supreme Court ruled that a commercial wedding photographer who refused to make a photo album for a lesbian couple celebrating their commitment ceremony did not enjoy a 1^st Amendment free speech or free exercise exemption from a state law banning sexual orientation discrimination. That court also rejected the photographer’s claim under New Mexico’s Religious Freedom Restoration Act, finding that complying with the state’s anti-discrimination law would not substantially burden the photographer’s freedom of religion. The U.S. Supreme Court denied Elane Photography’s petition to review the New Mexico court’s ruling.

Judge Stras’s opinion based its conclusion on a conflation of the Larsens’ business with the film studies that make movies for public exhibition. During oral argument, it was reported, the Larsen’s activities in making a video were likened to the work of prominent film producers/directors like Steven Spielberg. This was a specious comparison, not because Spielberg is a great filmmaker, but because the Larsen’s do not produce feature films or documentaries aimed at a public market, in which the content of the film is the speech of the filmmaker. Rather, they make films for hire, in order to communicate the message of the customer who hires them.

Stras wrote: “The Larsens . . . use their ‘unique skills to identify and tell compelling stories through video,’ including commercials, short films and live-event productions. They exercise creative control over the videos they produce and make ‘editorial judgments’ about ‘what events to take on, what video content to use, what audio content to use, what text to use . . ., the order in which to present content, whether to use voiceovers.” In other words, they exercise their professional judgment to make the films ordered by their customers, but the customers who are paying to have the films made ultimately determine what the message of the film will be. The Larsens’ role is to translate that message into an effect filmic presentation.

In describing their contemplated move into making wedding videos, they want these videos to “capture the background stories of the couples’ love leading to commitment, the [couples’] joy . . . the sacredness of their sacrificial vows at the altar, and even the following chapters of the couples’ lives.”

“The Larsens believe that the videos, which they intend to post and share online, will allow them to reach ‘a broader audience to achieve maximum cultural impact’ and ‘affect the cultural narrative regarding marriage.’” Presumably, they hoped to tap into the burgeoning on-line phenomenon of shared wedding videos, which seem to have a considerable audience. But their representation by Alliance Defending Freedom suggests an ulterior motive, that the Larsens have volunteered (or were recruited) to be plaintiffs as part of ADF’s strategy to get a case to the Supreme Court in hopes of broadening the rights of religious business owners to avoid complying with anti-discrimination laws, and perhaps even getting the Court to overrule its precedents denying religious free exercise exemptions from anti-discrimination laws, while at the same time creating a constitutional wedge issue for businesses whose goods or services might be characterized as “expressive.”

Even though the Larsens do not presently make wedding videos, and they do not claim that they have ever been approached to make a video of a same-sex wedding or threatened with prosecution for refusing to do so, the court first determined that they have standing to seek their declaratory judgment, because when the proposition was presented to officials of the Minnesota Department of Human Rights, they made clear that a refusal to provide videography services to same-sex couples would be considered a violation of the state’s anti-discrimination law. Thus, the Larsens claimed to the satisfaction of the 8^th Circuit panel that they faced a credible threat of prosecution and had standing to bring the case.

Turning to the merits, Stras wrote, “The Larsens’ videos are a form of speech that is entitled to First Amendment protection. . . although the Larsens do not plan to make feature films, the videos they do wish to produce will convey a message designed to ‘affect public attitudes and behavior.’ According to their complaint, they will tell ‘healthy stories of sacrificial love and commitment between a man and a woman,’ depicting marriage as a divinely ordained covenant, and oppose the ‘current cultural narratives about marriage with which they disagree.’ By design, they will serve as a ‘medium for the communication of ideas’ about marriage. And like the creators of other types of films, such as full-length documentaries, the Larsens will exercise substantial ‘editorial control and judgment.’” He concluded, “The videos themselves are, in a word, speech.”

Stras insisted that applying the Minnesota Human Rights Act to the Larsens’ business “is at odds with the ‘cardinal constitutional command’ against compelled speech. The Larsens to not want to make videos celebrating same-sex marriage, which they find objectionable. Instead, they wish to actively promote opposite-sex weddings through their videos, which at a minimum will convey a different message than the videos the MHRA would require them to make.”

Stras insisted that this case fell into line with various U.S. Supreme Court precedents blocking the government from compelling a private actor to express a message they don’t want to express, citing, among other cases, Boy Scouts of America v. Dale, where the Court recognized the Scouts’ 1^st Amendment right to ban gay men from serving as volunteer leaders of Scout troops. In that case, the Court said that requiring the Scouts to let out gay James Dale be an assistant scoutmaster would be compelling them to communicate a message of approval for homosexuality. The ruling in that case was by a vote of 5-4, overruling a 4-3 decision by the New Jersey Supreme Court. Stras also placed great weight on the Supreme Court’s ruling in Hurley v. GLIB, holding that Massachusetts could not compel the Catholic veterans association that ran Boston’s St. Patrick’s Day Parade to include a gay Irish organization marching with a banner proclaiming their identity, because that would be forcing a message on to the parade that the organizers did not want to communicate.

The consequence of Stras’s analysis was not only that the Larsens can assert their free speech claim, but that the court must subject the application of the MHRA to strict scrutiny, placing the burden on the state to prove that requiring the Larsens to made same-sex wedding videos is necessary to fulfill a compelling government interest.

The court also accepted the Larsens’ argument that they should be allowed to assert a free exercise of religion claim “because it is intertwined with their free speech claim,” constituting a so-called “hybrid rights claim.” The Supreme Court has mentioned that possibility in some cases, although it remains more theoretical than precedential at this point because most legal analysts have considered these mentions as not part of the holdings in the opinions where they appear. But Stras pointed out two 8^th Circuit decisions where that court has used the hybrid rights theory, making it fair game for litigation within the circuit. The Supreme Court had articulated it as a possible exception to the general rule in Employment Discrimination v. Smith, speculating that had the plaintiff been able to claim a violation of some other constitutional right in addition to free exercise of religion, he might have a valid claim. But Stras insisted that the Court’s comments actually related to the holdings in some prior cases. However, he noted, “it is not at all clear that the hybrid-rights doctrine will make any real difference in the end” because the Court was already holding that the Larsens’ free speech claim “requires the application of strict scrutiny.”

The court did reject the Larsens’ alternative theories of freedom of association and equal protection. The former claim, if recognized, would render anti-discrimination laws virtually unenforceable, and the latter defeated by the general application of the MHRA, which did not on its face single out any particular group for disfavored treatment. The court also rejected the Larsens’ argument that the law was unconstitutionally vague, or imposed unconstitutional conditions upon the operation of a business in the state.

The court sent the case back to the district with directions to “consider in the first instance whether the Larsens are entitled to a preliminary injunction, keeping in mind the principle that ‘when a plaintiff has shown a likely violation of his or her First Amendment rights, the other requirements for obtaining a preliminary injunction are generally deemed to have been satisfied.”

Judge Kelly’s dissent was several pages longer than the majority opinion. “No court has ever afforded ‘affirmative constitutional protections’ to private discrimination,” she wrote. “Indeed, caselaw has long recognized that generally applicable laws like Minnesota’s may limit the First Amendment rights of an individual in his capacity as the owner of a business serving the public.” On this point, she cited Justice Anthony Kennedy’s opinion for the Court in Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), in which the reluctant baker had refused to make a wedding cake for a same-sex couple. In that opinion, Kennedy acknowledged that religious and philosophical objects to same-sex marriage enjoy First Amendment protection, but “such objections do not allow business owners . . . to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.” Judge Kelley observed, “That well-established principle should have easily disposed of this case.”

She contested Judge Stras’s attempt to “recharacterize Minnesota’s law as a content-based regulation of speech.” She argued that the law does not compel the Larsens to communicate any particular message about marriage. “What they cannot do,” she wrote, “is to operate a public accommodation that serves customers of one sexual orientation but not others. And make no mistake,” she continued, “that is what today’s decision affords them license to do.” She asserted that the conduct in which the Larsens wish to engage if they expand into the wedding video business would involve denying services based on the sexual orientation of customers. “That the service the Larsens want to make available to the public is expressive does not transform Minnesota’s law into a content-based regulation, nor should it empower the Larsens to discriminate against prospective customers based on sexual orientation.” The rest of her opinion takes much inspiration from Justice Ruth Bader Ginsburg’s dissent from the Court’s holding in Masterpiece.

Pointing to an earlier ruling, she wrote, “The Supreme Court has already health that the MHRA is constitutional, in the process rejecting many of the same arguments that the court adopts today. Just recently, it reaffirmed that, although ‘religious and philosophical objections [to same-sex marriage] 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.’ The Supreme Court is free to revise or overturn its precedents,” she continued. “We are not. Rather than disturb bedrock principles of law, I would affirm the district court’s order in full.”

The state can seek review of this decision by the full bench of the 8^th Circuit, but that circuit has an overwhelmingly Republican/conservative tilt at present. Of the eleven active judges, only one, Judge Kelly, was appointed by a Democratic president. Trump has managed to place four judges on the court, where all but one of the other judges was appointed by George W. Bush, with the senior-most of the active judges having been appointed by the first President Bush. Clinton’s appointees have all died or retired. Perhaps the state should apply directly to the Supreme Court for review, but who is to say that Justice Kennedy’s comments, relied upon by Judge Kelly, would find majority support on the Court now that Neil Gorsuch has replaced Kennedy?

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 (3^rd 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 (7^th 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 1^st and 14^th 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 1^st 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 3^rd 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 3^rd 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 3^rd 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 3^rd 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 1^st 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 1^st 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 2^nd 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 11^th Circuit Court of Appeals affirmed the dismissal, 723 Fed. Appx. 964 (11^th Cir., May 10, 2018), petition for en banc review denied, 894 F.3d 1335 (11^th 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 2^nd 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 2^nd 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 (2^nd Cir., Feb. 26, 2018). This overruled numerous earlier 2^nd 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 6^th 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 (6^th Cir., March 7, 2018). The 6^th 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 6^th 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 7^th Circuit Court of Appeals in 2017 in Hively v. Ivy Tech Community College, 853 F.3d 339 (7^th Cir. en banc), a case that the losing employer did not appeal to the Supreme Court. In 2018, the 2^nd Circuit endorsed the EEOC’s view in the Zarda case.

During the oral argument of Zarda in the 2^nd 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 6^th 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.

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