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Houston Benefits Dispute May Bring Marriage Equality Issue Back to the Supreme Court

Posted on: January 25th, 2017 by Art Leonard No Comments

Conservatives eager to bring the marriage equality issue back to the U.S. Supreme Court after President Donald J. Trump has had an opportunity to appoint some conservative justices may have found a vehicle to get the issue there in an employee benefits dispute from Houston. On January 20, the Texas Supreme Court announced that it had “withdrawn” its September 2, 2016, order rejecting a petition to review a ruling by the state’s intermediate court of appeals that had implied that the U.S. Supreme Court’s 2015 marriage equality ruling, Obergefell v. Hodges, 135 S. Ct. 2584, might require Houston to provide the same spousal health benefits to same-sex as different-sex spouses of City workers.  Instead, announced the Court, it had reinstated the petition for review and scheduled oral argument for March 1, 2017.  Parker v. Pidgeon, 477 S.W.3d 353 (Tex. 14th Dist. Ct. App., 2015), review denied, sub nom. Pidgeon v. Turner, 2016 WL 4938006 (Texas Supreme Ct., September 2, 2016), No. 16-0688, Order withdrawn, motion for rehearing granted, petition reinstated (Jan. 20, 2017).

The plaintiffs in the Houston benefits case, Houston taxpayers Jack Pidgeon and Larry Hicks, had filed a motion for rehearing with active support from Governor Greg Abbott and Attorney General Ken Paxton, both ardent marriage equality opponents eager to chip away at the marriage equality ruling or even to get it reversed. The Texas Supreme Court’s order denying review had been issued over a fervent dissenting opinion by Justice John Devine, who argued for a limited reading of Obergefell, and the Republican leaders’ amicus brief in support of review channeled Devine’s arguments.

Trump’s nomination of a conservative to fill the seat left vacant when Justice Antonin Scalia died last February would not change the Supreme Court line-up on marriage equality. Obergefell was decided by a 5-4 vote, with Scalia dissenting.  However, it is possible – even likely, if rumors of a possible retirement by Justice Anthony Kennedy at the end of the Court’s 2017-18 Term are accurate – that Trump will get an opportunity to replace the author of the Obergefell decision with a more conservative justice in time for the Court’s 2018-19 Term.  Regardless how the Texas Supreme Court rules on this appeal, its interpretation of the scope of Obergefell could set up a question of federal constitutional law that could be appealed to the U.S. Supreme Court, and once the issue gets to the Court, it is possible that the Obergefell dissenters, strengthened in number by new conservative appointees, could take the opportunity to narrow or even overrule the marriage equality decision.

The Houston dispute dates back to 2001, when Houston voters reacted to a City Council move to adopt same-sex partner benefits by approving a City Charter amendment that rejected city employee health benefits for “persons other than employees, their legal spouses and dependent children.” In 2001 same-sex couples could not legally marry anywhere in the world, so this effectively denied benefits to any and all same-sex partners of City employees.  Texas was also one of many states that put firm bans on same-sex marriage into its constitution and family law statute.

After the U.S. Supreme Court struck down Section 3 of the Defense of Marriage Act in June 2013, Houston Mayor Annise Parker, an openly-lesbian longtime LGBT rights advocate, announced the extension of health benefits to same-sex spouses of City employees. Although same-sex couples could not then marry in Texas, they could go to any of a number of other states to get married, including California and New York and, most conveniently as a matter of geography, Iowa.  Parker and her City Attorney concluded that under the Supreme Court’s reasoning in the DOMA case, United States v. Windsor, 133 S. Ct. 2675, Houston’s city government was obligated to recognize lawfully contracted same-sex marriages of city employees and provide them the same benefits that were accorded to other city employees.  Federal constitutional requirements would override the City Charter ban as well as state law.

Taxpayers Pidgeon and Hicks filed suit in state court, contending that Parker’s action violated the Texas Constitution and statutes, as well as the city charter amendment. They persuaded the trial judge to issue a temporary injunction against the benefits extension while the case was pending.  The City appealed that ruling to the 14th District Court of Appeals, which sat on the appeal as new marriage equality litigation, sparked by the Windsor ruling, went forward in dozens of states including Texas.  A Texas federal district judge ruled in 2014 in the De Leon case that the state’s ban on same-sex marriage was unconstitutional.  The U.S. 5th Circuit Court of Appeals heard the state’s appeal of that ruling in January 2015.  After the U.S. Supreme Court ruled for marriage equality in June 2015, the 5th Circuit issued its decision upholding the Texas district court, 791 F.3d 619, which in turn ordered Texas to allow and recognize same-sex marriages.  This prompted the 14th District Court of Appeals to issue its decision on July 28, 2015.

The Court of Appeals ruling in Parker v. Pidgeon, 477 S.W.3d 353, said, “Because of the substantial change in the law regarding same-sex marriage since the temporary injunction was signed, we reverse the trial court’s temporary injunction and remand for proceedings consistent with Obergefell and De Leon.”  The court did not rule on the merits, merely sending the case back to the trial court to issue a decision “consistent with” the federal marriage equality rulings.  What those rulings may require in terms of city employee benefits is a matter of some dispute.

Pidgeon and Hicks petitioned the Texas Supreme Court to review this court of appeals decision, but the court denied that petition on September 2, 2016, with Justice Devine dissenting. Devine argued that the court should have taken up the case because, in his view, the majority of the court “assumed that because the United States Supreme Court declared couples of the same sex have a fundamental right to marry, the Equal Protection Clause of the Fourteenth Amendment requires cities to offer the same benefits to same-sex spouses of employees as to opposite-sex spouses.  I disagree.” He continued: “Marriage is a fundamental right.  Spousal benefits are not.  Thus, the two issues are distinct, with sharply contrasting standards for review.  Because the court of appeals’ decision blurs these distinctions and threatens constitutional standards long etched in our nation’s jurisprudence, I would grant review.”

Justice Devine was mistaken as to the court of appeals decision. That court did not hold in its July 28 ruling that same-sex spouses of Houston employees are entitled to health benefits from the city.  Rather, it ruled that because of “substantial change in the law” since the temporary injunction was issued, the injunction should be reversed and the case sent back to the trial court for “proceedings consistent with Obergefell and De Leon.”  If the trial court, on reconsideration, concluded that Obergefell and De Leon did not require the City to extend benefits to same-sex spouses of its employees, as Justice Devine argued in his dissent, the trial court could still rule in favor of Pidgeon and Hicks.  All the court of appeals directed the trial judge to do was to rethink the case in light of the new federal rulings.

Devine’s argument rests on a very narrow reading of Obergefell.  He interprets the Supreme Court’s decision to be sharply focused on the right of same-sex couples to marry, resting on the Court’s conclusion that the right to marry is a “fundamental right.”  Thus, a state would have to have a “compelling interest” to deny the right, a test that the Supreme Court found was not met.  However, pointed out Devine, the Supreme Court never explicitly said that the federal constitution requires state and local governments to treat all marriages the same, regardless whether they are same-sex or different-sex marriages.  And, he argued, public employees do not have a fundamental constitutional right to receive health insurance benefits from their employer.  Thus, he contended, the state could decide who gets benefits based on its own policy considerations, which the courts should uphold if they satisfy the relatively undemanding “rationality” test that is used when a fundamental right is not at stake.  As to that, he argued that the state’s interest in procreation by married different-sex couples could justify extending benefits to them but not to same-sex couples.

A contrary argument would note that Justice Kennedy’s opinion in Obergefell specifically listed health insurance as one of the many benefits associated with marriage that contributed towards the conclusion that the right to marry was a fundamental right because of its importance to the welfare of a couple and their children.  Similarly, Justice Kennedy did not consider the “procreation” argument persuasive to justify denying the right to marry to same-sex couples.  On the other hand, the Supreme Court did not say anywhere in its opinion that states are constitutionally required to treat same-sex and different-sex couples exactly the same in every respect, ignoring any factual distinctions between them.  Justice Devine’s argument seems strained, but not totally implausible, especially in the hands of a conservatively-inclined court.

Timing is everything in terms of getting an issue before the Supreme Court, especially if the aim of Texas conservatives and their anti-LGBT allies around the country is to get the issue there after Trump has had two appointments.  Once the Texas Supreme Court hears oral argument on March 1, it could take as long as it likes to issue a ruling on the appeal, and it could be strategic about holding up a ruling until it looks likely that any Supreme Court appeal would be considered after the 2017-18 Term of the Court has concluded in June 2018.  After the Texas Supreme Court rules, the losing party could take up to 90 days to file a petition in the Supreme Court.  If the petition arrives at the Supreme Court after the end of its term, that Court won’t decide whether to grant review until the beginning of its new term in the fall of 2018, and if the petition is granted, argument would not take place for several months, giving the parties time to brief the merits of the case.  If the Texas Supreme Court decides to affirm the court of appeals, it is highly likely that Pidgeon and Hicks, abetted by Abbott and Paxton, will seek Supreme Court review.  If the Texas Supreme Court reverses, the City of Houston will have to decide whether to seek Supreme Court review, or whether to adopt a wait-and-see attitude while the trial court proceeds to a final ruling on the merits of the case.  And the trial court could well decide, upon sober reflection, that Obergefell compels a ruling against Pidgeon and Hicks, which would put them back in the driver’s seat as to the decision to appeal to the Supreme Court.

If a second Trump appointee was confirmed while all of this was playing out, the case would be heard by a bench with a majority of conservative justices appointed by Republican presidents, one by George H.W. Bush (Clarence Thomas), two by George W. Bush (Chief Justice John Roberts and Samuel Alito), and two by Donald Trump. Trump’s appointees would be joining three Republican colleagues who filed or signed dissents in the Windsor and Obergefell cases.  Regardless of how the Petitioner frames the questions posed to the Court, the justices are free to rewrite the question or questions on which they grant review.  If a majority of the newly-constituted Court is eager to revisit Obergefell, they could grant review on the question whether Obergefell was correctly decided.  Based on past history, they could reach that issue if a majority wants to do so without signaling its salience in the Order granting review.

Much of this is conjecture, of course. Justice Devine was a lone voice dissenting from the September 2 order to deny review in this case.  But that order was issued at a time when national pollsters were near unanimous in predicting that Hillary Clinton would be elected and, consequently, would be filling the Scalia vacancy and any others that occurred over the next four years. The political calculus changed dramatically on November 8 when Trump was elected. Even though he has stated that he accepts marriage equality as a “settled issue,” his announced intention to appoint Justices in the image of Scalia and to seek reversal of Roe v. Wade, the Court’s seminal abortion decision from 1973, suggests that he will appoint justices who have a propensity to agree with the Obergefell dissenters that the marriage equality ruling was illegitimate.  (Chief Justice Roberts wrote in his dissent that it had “nothing to do with the Constitution.”)  Although the Court has frequently resisted efforts to get it to reverse highly consequential constitutional decisions, it has occasionally done so, most notably in the LGBT context in its 2003 ruling in Lawrence v. Texas, striking down a state sodomy law and overruling its 1986 decision in Bowers v. Hardwick.

After the election, many LGBT rights organizations issued statements to reassure people that marriage equality would not immediately disappear after Trump took office. That remains true.  A constitutional ruling by the Supreme Court can only be changed by the adoption of a constitutional amendment, which Democrats can easily block in Congress, or overruling by the Supreme Court, which requires that a new case come up to the Court at a time when a majority of the Court is receptive to the overruling argument, which seems to be at least two years off from now.  But these statements, including those by this writer, conceded that in the long run it was possible that Trump’s Supreme Court appointments and new appeals headed to the Supreme Court might come together to endanger marriage equality.  This new development in the Houston benefits case shows one way that could happen.

Anti-Gay Justice Scalia Exits the Stage

Posted on: February 16th, 2016 by Art Leonard No Comments

With the death of Antonin Scalia the Supreme Court has lost its most outspoken anti-gay member.  Ever since taking his seat on the high bench in 1986, Justice Scalia voted consistently against gay rights claims, sometimes in the majority and sometimes in dissent, regardless of the factual context in which they arose.

Scalia was appointed to the Court by President Ronald Reagan shortly after the Court had decided Bowers v. Hardwick (1986), the notorious case in which it rejected by a 5-4 vote a constitutional challenge to Georgia’s law making gay sex a crime.  There is no doubt how he would have voted in that case, since he subsequently argued (in dissent) that it had been correctly decided and should be reaffirmed and followed.

The first LGBT rights case to come up after his appointment, during Scalia’s first term on the Court in 1987, was San Francisco Arts & Athletics v. U.S. Olympic Committee.  The Olympic Committee sued for an injunction to stop SFAA from holding its international athletic competition under the name “Gay Olympics.”  The Supreme Court ruled that the USOC had a right under a federal statute to veto the use of “Olympics” in connection with athletic competitions run by other organizations, and that the statute did not violate the 1st Amendment free speech rights of others who wanted to run their own “Olympic” games.  Scalia joined the majority opinion by Justice Lewis Powell.  The Court refused to entertain the argument that USOC’s discriminatory exercise of its veto – allowing many other organizations to use “Olympic” in their name unchallenged – raised a constitutional issue, as the Court found that USOC was not a governmental organization, and thus not bound by the Equal Protection requirement.  Justices William J. Brennan and Thurgood Marshall dissented in full, and two other justices  — Sandra Day O’Connor and Harry Blackmun — also opined that the case should be sent back to a lower court for further consideration of an equal protection challenge.

The Court ruled in 1988 that a gay man who had been discharged by the Central Intelligence Agency had a right to seek judicial review of his claim that he was a victim of unconstitutional discrimination.  Chief Justice Rehnquist wrote the decision for the Court.  Scalia, who normally voted in line with the Chief Justice, penned a lengthy dissent, arguing that Congress had insulated such CIA personnel decisions from judicial review and was constitutionally entitled to do so.

Scalia subsequently joined a dissent by Justice Anthony M. Kennedy in 1989 in Price Waterhouse v. Hopkins, a case in which a majority of the Court accepted the argument that an employer who takes adverse action against an employee because she fails to conform to gender stereotypes may be violating the sex discrimination ban in Title VII of the Civil Rights Act of 1964.  Justice Brennan’s opinion for a plurality of the Court influenced lower courts to adopt a broader approach to Title VII’s ban on sex discrimination, leading ultimately to provide protection to transgender plaintiffs and even some gay plaintiffs who can make a plausible claim that they encounter workplace discrimination due to gender stereotype non-conformity.  Although Justice Kennedy’s dissent, joined by Scalia, focused mainly on other issues in the case, it voiced skepticism about the “sex stereotyping” theory.

In 1996 Scalia “vigorously” dissented (to use his descriptive word) from the Supreme Court’s 5-4 ruling in Romer v. Evans, holding that Colorado Amendment 2 violated the equal protection rights of gay people.  Amendment 2 prohibited the state or its political subdivisions from adopting legislation that would protect gay people from discrimination.  The case provided Scalia with his first vehicle to accuse the Court of signing on to a gay rights agenda, because it was the first potentially wide-ranging pro-gay-rights decision to emanate from the Court.

“The constitutional amendment before us here is not the manifestation of a “‘bare . . . desire to harm'” homosexuals,” he wrote, refuting Justice Kennedy’s reasoning for the majority, “but is rather a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws.” The description of “seemingly tolerant Coloradans” who had voted overwhelmingly to enact Amendment 2 in the wake of a horrifyingly homophobic media campaign drew shocked guffaws from LGBT commentators.

He continued: “This Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected, pronouncing that ‘animosity’ toward homosexuality is evil.”  Scalia aligned the majority of the Court with the organized bar and the law school community, which had condemned anti-gay discrimination and moved to deny access to law school placement offices to discriminatory recruiters.  After summarizing Justice Kennedy’s rationale for the decision in sarcastic terms, Scalia insisted that by such reasoning “constitutional jurisprudence has achieved terminal silliness.”  He argued that the Court’s ruling was inconsistent with Bowers v. Hardwick and accused the Court of overruling that case without saying so.  If it was constitutional to make gay sex a crime, he asked, how could it be a violation of equal protection for a state to refuse to protect homosexuals from discrimination?

Pushing the point further, he wrote: “Of course it is our moral heritage that one should not hate any human being or class of human beings. But I had thought that one could consider certain conduct reprehensible — murder, for example, or polygamy, or cruelty to animals — and could exhibit even ‘animus’ toward such conduct. Surely that is the only sort of ‘animus’ at issue here: moral disapproval of homosexual conduct, the same sort of moral disapproval that produced the centuries-old criminal laws that we held constitutional in Bowers.”

He went on at length in a similar vein, ultimately accusing the Court of ruling based on politics rather than law, and arguing for the right of individuals who did not want to associate with homosexuals in their workplaces to refuse to employ them.

This dissent set the pattern for Scalia’s increasingly vociferous dissents as he found himself on the losing side in Lawrence v. Texas (2003), United States v. Windsor (2013), and Obergefell v. Hodges (2015), the cases in which the Court struck down sodomy laws, the anti-gay Defense of Marriage Act, and state laws against same-sex marriage.  These dissents were littered with colorful phrases one would not expect to find in the normally staid volumes of Supreme Court opinions, accusing Justice Kennedy of “argle-bargle” and asserting that he would be so ashamed to sign on the logic of the Obergefell decision that he would put his head in a paper bag.

Scalia’s dissents in these cases proved to be prophetic, probably to his dismay. He accused the Court of overruling Bowers v. Hardwick sub silentio in Romer, and the Court subsequently did so explicitly and emphatically in Lawrence.  He accused the Court of opening up the path to same-sex marriage in Lawrence, and exactly ten years later the Court, citing Lawrence, struck down the federal ban on recognition of same-sex marriages in Windsor.  In his Windsor dissent, Scalia accused the Court of providing a road-map for lower courts to strike down state bans on same-sex marriage, predicting that the issue would be back before the Court in two years.  Precisely two years later, the Court struck down such bans in Obergefell, over a hysterical Scalia dissent.  Not surprisingly, many lower court judges cited and quoted from Scalia’s dissents to support their rulings striking down same-sex marriage bans.

Throughout these dissents, Scalia bemoaned the Court’s weakening of the ability of legislative majorities to codify their moral judgments in law, detesting the moral relativism exhibited by Kennedy’s opinions exalting private morality above public morality as a matter of individual liberty protected by the Constitution.

When the marriage equality cases arrived at the Court’s door, Scalia fought a rear-guard action to try to keep lower court marriage equality rulings “stayed” until the Supreme Court could decide the cases, perhaps holding out hope that Justice Kennedy was not ready to extend the Windsor decision further, joining dissents by Justice Clarence Thomas, who sought to preserve the anti-marriage status quo as long as possible, even after the Supreme Court had denied review to several pro-marriage equality court of appeals rulings and agreed to review the one adverse ruling out of the 6th Circuit.

Scalia did enjoy some victories along the way after Romer v. Evans, however.  In Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, he joined a unanimous Court in striking down the Massachusetts Supreme Judicial Court’s ruling that the organizers of the Boston St. Patrick’s Day Parade were required under a state civil rights law to allow an LGBT group to participate in the event.  In Boy Scouts of America v. Dale, he joined a 5-4 majority in striking down the New Jersey Supreme Court’s ruling that the Boy Scouts did not enjoy a 1st Amendment right to exclude openly gay men from leadership positions in violation of the state’s civil rights law.  In Rumsfeld v. Forum for Academic & Institutional Rights, Inc., he joined Chief Justice Roberts’ opinion for the unanimous Court in rejecting a constitutional challenge to the Solomon Amendment, a provision denying federal funding to law schools that were refusing to allow military recruiters on campus due to the Defense Department’s anti-gay policies, reversing a contrary decision by the 3rd Circuit Court of Appeals.

Scalia joined dissents in several other cases where the Court affirmatively addressed issues of concern to the LGBT community.  In Bragdon v. Abbott, he joined a dissent by Chief Justice William Rehnquist from the Court’s conclusion that a woman with HIV-infection could asserted a discrimination claim under the Americans with Disabilities Act against a dentist who refused to provide treatment to her in his office.  In Christian Legal Society v. Martinez, a 5-4 ruling, he joined a dissent against Justice Ruth Bader Ginsburg’s majority opinion, which held that the University of California Law School could refuse to extend official recognition to a student group that explicitly excluded “homosexuals” from its membership on religious grounds.  He was, of course, a frequent dissenter in cases upholding women’s right to terminate their pregnancies as part of their liberty under the Due Process Clause, in a key decision – Planned Parenthood v. Casey – writing in dissent that the Court’s support for abortion rights was inconsistent with its upholding of laws against “homosexual sodomy” in Bowers v. Hardwick.

Sometimes, however, Scalia wrote opinions that might prove useful to gay litigants, although their interests were not directly involved in the case before the Court. In Employment Division v. Smith, he wrote for the Court that individuals could not claim a broad right under the 1st Amendment’s protection for free exercise of religion to refuse to comply with general state laws because of their religious objections.  Although that decision spurred the passage of federal and state statutes providing some protection for religious dissenters, the degree to which such statutes would shield employers, landlords or businesses serving the public from discrimination charges remains hotly contested, and so far many courts have ruled against recalcitrant businesses that had refused to provide goods or services for same-sex weddings.  Scalia’s opinion in Smith was cited in some of these cases to reject the constitutional free exercise claims raised by the discriminators.

In another case, Oncale v. Sundowner Offshore Services, Scalia wrote for a unanimous Court that same-sex workplace harassment might violate Title VII of the Civil Rights Act if the victim was singled out for harassment because of his sex. This case has also proved useful to some gay male litigants combatting workplace harassment by male co-workers, and Scalia’s comment that a statute could be interpreted to address “comparable evils” to those envisioned by the legislature has proved useful to the Equal Employment Opportunity Commission as it has moved to apply Title VII to discrimination claims brought by gay and transgender people.  One doubts that this was Scalia’s intent in penning the phrase, however.

In the Supreme Court’s only ruling to date on transgender rights, Farmer v. Brennan, Scalia joined an opinion for the Court by Justice David Souter holding that prison officials could be sued under the 8th Amendment for failing to take steps to protect transgender inmates from known risks of harm while incarcerated.

Justice Scalia’s main impact on the Court’s jurisprudence in general was to lend a degree of respectability to certain theories of constitutional and statutory interpretation that had been rejected or minimized in the past, but he was never able to persuade a stable majority of the Court to fully embrace his notion that the Constitution is “dead” – in the sense that its meaning was fixed at the time its provisions were adopted and cannot change in light of new circumstances – or that statutes should be construed by reference to their language without any regard to what legislators said they intended to accomplish by enacting them – so-called “legislative history,” for which he had open disdain. However, when he was assigned to write for the majority, he managed to work these ideas into his opinions to some extent, giving lower courts a basis to invoke them from time to time.

Justice Scalia departed from Supreme Court tradition by engaging in a substantial amount of public speaking.  In the past most justices avoided speaking publicly about substantive legal issues, lest they cross an ethical line and signal their views about cases pending before the Court.  Such concerns did not seem to bother Scalia, who said publicly on several occasions what he subsequently said officially in court opinions concerning claims by gay people for constitutional protection, which he invariably found to lack merit.  Homosexuality is not mentioned in the Constitution, which struck Scalia as the end of the matter, and he repeatedly argued that “the people” were entitled to vote against the interest of LGBT people as a matter of “democracy.”

After almost thirty years of service, he will be missed from the Court by many, but not all for the same reasons.

Federal Court Says Old Sodomy Conviction Cannot Be Basis for Current Sex Offender Registration Requirement

Posted on: December 16th, 2013 by Art Leonard No Comments

Finding that prosecuting a man for failing to register as a sex offender on the basis of an old conviction under an unconstitutional sodomy law would be “unthinkable,” U.S. District Judge Amy Totenberg granted a writ of habeas corpus to Charlton Green on December 9, directing that the State of Georgia release him from the obligations of probation to which he had been sentence.

Green, then age 20, and three friends, another young guy and two young women, were fooling around in a hotel room, and Green and the other guy got into sex.  This happened in Georgia in 1997, at which time the Georgia sodomy law was still in effect. It had been challenged in the U.S. Supreme Court in 1986 in the case of Bowers v. Hardwick, but the Supreme Court rejected the challenge.

Somehow, Charlton’s activity came to the attention of the police, and he was charged with violating the sodomy law.  He pled guilty, and was initially sentenced to probation as a first offender, but he violated the terms of probation and was convicted and sentenced in January 1999.  (By that time, the Georgia Supreme Court had declared, In Powell v. State (1998), that the state’s sodomy law was unconstitutional as applied to private, adult consensual activity, but evidently this made no difference to the court that sentenced Charlton in January 1999.)  Part of his sentence was to be designated as a sex offender and required to register with local law enforcement authorities wherever he was living.   Several years later, in 2003, the U.S. Supreme Court, ruling in a case involving the Texas Homosexual Conduct Law, overruled its 1986 decision in Bowers v. Hardwick, holding that private, adult consensual same-sex activity was protected under the Due Process Clause and could not be made the subject of criminal prosecution.  In 2003, the Court said that Bowers v. Hardwick was “wrong when it was decided.”

This means, logically, that in 1997 Charlton Green had pled guilty under an unconstitutional statute.

Dial forward to 2009.  Green’s mother fell ill with cancer, and he moved to her home to help care for her.  Contacting the local sheriff to register his presence slipped his mind.  But he was indicted and convicted in May 2009 in the Cherokee County Superior Court for failing to register as a sex offender.  The sole basis of his being a sex offender, of course, was the 1997 guilty plea under the unconstitutional sodomy law.  In response to this conviction in May 2009, Charlton was sentenced to 30 years in prison, two to actually serve and 28 on probation.   Charlton’s attorney at the trial failed to raise the issue that the law under which he had been originally convicted was unconstitutional.   After his conviction, Charlton got a new attorney and sought a new trial, raising the unconstitutionality issue for the first time and arguing that he had ineffective assistance from counsel in the first proceeding.  The trial court denied the motion, and the Georgia Court of Appeals affirmed the denial, saying that he could not show he had been prejudiced because his conduct in that hotel room was not “private” and thus not within the protection of the Powell and Bowers rulings.  While Charlton’s appeal was pending, he applied to the Pickens County Superior Court to get his original sodomy convicted vacated, and Judge Brenda Weaver vacated the conviction, finding “that the undisputed evidence supports Mr. Green’s claim to the protections of Powell and Lawrence,” but the Georgia Court of Appeals reversed this ruling on grounds of procedural irregularity.

After relating all of this, U.S. District Judge Amy Totenberg wrote, “Thus, as it stands, Green remains subject to the reporting requirement of O.C.G.A. Sec. 42-1-12 based on his conviction under a law that has been deemed unconstitutional.  On that basis, he petitions for a writ of habeas corpus.”  Charlton has finished serving his two year sentence, but remains subject to the 28 year probation sentence, so he remains eligible to seek the writ as somebody whose liberty remains constrained by the state.

Judge Totenberg decided that for purposes of deciding this petition, it is essentially irrelevant that Charlton’s original conviction has not been vacated and is not subject to appeal at this time.  However, she concluded that it was clear that Green received ineffective assistance of counsel in 2009 when his lawyer failed to raise the unconstitutionality of the sodomy law as a defense to his prosecution for failing to register. “The state cannot give legal effect to a conviction under an unconstitutional criminal statute,” wrote Totenberg.  “Convicting Green for failing to register as a sex offender solely because he was previously convicted under the unconstitutional anti-sodomy statute would amount to ‘state-sponsored condemnation’ of constitutionally protected behavior” she continued, citing both Lawrence v. Texas and the recent 4th Circuit decision, MacDonald v. Moose, which struck down the Virginia sodomy law in reliance on Lawrence.

Totenberg also rejected the state trial court’s reasoning that by pleading guilty to the sodomy charges, Charlton Green had “waived his defense” including any future defense based on the unconstitutionality of the sodomy law.  She wrote that it would not “comport with fundamental fairness and due process of law to allow a guilty plea to waive a constitutional challenge to the use of a conviction based on constitutionally protected, private consensual sexual conduct that cannot be criminalized.”

The judge also rejected the state trial court’s conclusion that although Powell and Lawrence had changed the law, “those changes did not apply to this factual situation because the conduct was not ‘private.'”  The trial court was undoubtedly relying on old cases that have held that for sexual conduct to be private, it must occur in an enclosed place in which only the two participants are present.  Under this reasoning, group sex involving more than two participants or sex taking place where non-participants are observing cannot be considered to be taking place in “private.”  Judge Totenberg rejected that idea, citing a 2000 Georgia Court of Appeals decision, Mauk v. State, 529 S.E.2d 197, which said “a private place is a place where one is entitled reasonably to expect to be safe from casual or hostile intrusion or surveillance.”  By that standard, Totenberg found that the hotel room being used by the four young adults was a “private place.”  After citing prior Georgia cases holding that a hotel room is a “private place,” she wrote, “And the presence of two private, consenting observers does not transform the private act into a public one.  Here, the two women present in the hotel room during the sexual act were not random members of the public but personal friends.  While the Court recognizes that the presence of others might be relevant to the question of whether sexual conduct is private, the constitutional right to privacy of young adults engaging in consensual sexual conduct behind the closed doors of a hotel room is not vitiated by the simple fact that four people are in the room.”

She also anticipated any argument about the retroactivity of Powell and Lawrence, noting that Georgia courts had already accepted the proposition that “the rule established in Lawrence is a new rule of substantive law that may be applied retroactively to cases on collateral review.”  This would certain seem obvious from the Lawrence Court’s statement that Bowers v. Hardwick was wrong when it was decided, not just prospectively from 2003 on.

Totenberg drew an analogy to the Supreme Court’s ruling on interracial marriage in explaining why she was issuing a writ of habeas corpus to Green.  “Just as it is unthinkable that a conviction of miscegenation entered before Loving v. Virginia, 388 U.S. 1 (1967), was decided could be used after that decision to establish an element of a crime, so is it unthinkable that a conviction based on constitutionally protected private consensual sexual conduct entered before Powell or Lawrence was decided could be so used.  Counsel who fails to object to the use of an extant sodomy conviction that on its face raises serious concerns as to its constitutional validity has failed to provide effective assistance.”  Since Green did not have effective representation at his 2009 trial, his conviction had to be vacated.  Therefore, Totenberg both ordered that the conviction be vacated and that Green be “released from the sentence imposed,” and she ordered the State of Georgia to “take all actions necessary consistent with the holding of this Order.”

The lawyer who stuck with Green through this extended and time-consuming litigation and successfully argued for this relief is Stephen R. Scarborough.

Virginia Attorney General Goes to the Mat to Save Unconstitutional Sodomy Law

Posted on: April 5th, 2013 by Art Leonard No Comments

Virginia Attorney General Kenneth Cuccinelli has asked the 4th Circuit Court of Appeals to reconsider and overrule a decision by a three-judge panel of that court that held last month that Virginia’s sodomy law is facially unconstitutional.  Citing the dissenting opinion by one member of the panel ruling in MacDonald v. Moose, Cuccinelli emphasized that the case involving an adult man who solicited a teenage girl to have oral sex, and argued that Virginia should be allowed to prosecute such cases.

Ten years ago, the U.S. Supreme Court ruled in Lawrence v. Texas that the Texas Homosexual Conduct  Law, which made it a crime for gay people to have sex in that state, violated the 14th Amendment Due Process Clause.  In his opinion for the Court, Justice Anthony M. Kennedy, Jr., wrote that the Court’s 1986 decision, Bowers v. Hardwick, which had rejected a 14th Amendment challenge to the Georgia sodomy law, was “wrong” when it was decided and thus was overruled as part of the Lawrence decision.  The Georgia sodomy law, unlike the Texas law, prohibited all persons in Georgia from engaging in anal or oral sex, regardless of their gender or age.

One would have thought that as of 2003, when Lawrence was decided, all state sodomy laws would be considered unconstitutional and no longer enforceable, whether focused just on gay sex or more broadly on all oral or anal sex, and that state legislatures would get busy repealing them and replacing them, if desired, with laws that only criminalized conduct that was not constitutionally protected.  In the Lawrence decision, Justice Kennedy emphasized that the case before the Court did not involve sex with minors, prostitution, public acts, or situations where consent was lacking.  The Lawrence case involved two gay men arrested in one of their apartments under “fluke” circumstances, who were claimed by police officers to be engaging in sex.  (Subsequent investigation shows that the men probably were not engaging in sex.  See Dale Carpenter’s excellent and highly readable book about the case, “Flagrant Conduct,” published last year.)

But this thought, it turns out, was mistaken.  Many state legislatures have failed to remove the unconstitutional sodomy laws from their statute books, and one such is Virginia, despite unsuccessful legislative proposals to do so.  The Virginia sodomy law provides, “If any person carnally knows any male or female person by the anus or by or with the mouth, or voluntarily submits to such carnal knowledge, he or she shall be guilty” of a felony.  The provision is similar to the Georgia sodomy law that was wrongly upheld in Bowers v. Hardwick, but subsequently declared by the Georgia Supreme Court to violate that state’s constitution.

Virginia state courts have taken the position that people can continue to be prosecuted under the Virginia sodomy law, and under a companion law that makes it a crime to solicit somebody to engage in a felony, so long as the conduct being prosecuted does not fall within the range of conduct that the Supreme Court found to be constitutionally protected in Lawrence v. Texas. 

In 2004, the state prosecuted William MacDonald, then 47, for soliciting oral sex from a 17-year-old girl.  The prosecutor charged MacDonald with a felony, he was found guilty, and the trial court sentenced him to ten years in prison (with nine years suspended) on this charge, plus twelve months for the misdemeanor offense of contributing to the delinquency of a minor.  MacDonald argued that he could not be prosecuted for soliciting a felony, because in light of Lawrence v. Texas, decided the year before, the Virginia sodomy law was unconstitutional.  Rejecting this argument, the state courts at every level took the position that because the girl was a minor (under age 18), Lawrence v. Texas did not apply.

After exhausting his state appeals, MacDonald filed a petition for habeas corpus in the U.S. District Court, arguing that his conviction violated his federal constitutional rights.  Under the federal statute governing petitions for habeas corpus, because the state courts had ruled on the merits of MacDonald’s federal constitutional claim, the federal court could only rule in MacDonald’s favor on one of two grounds: either that the state court’s ruling was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or that the state court’s decision was “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”

Judge Gerald Bruce Lee of the U.S. District Court for the Eastern District of Virginia ruled against MacDonald, denying the petition for habeas corpus, finding that the Virginia courts were not clearly wrong in their construction of the Lawrence decision.  But a panel of the U.S. Court of Appeals for the 4th Circuit, ruling on March 12, 2013, disagreed, voting 2-1 to grant MacDonald’s petition and declare that his conviction was unconstitutional.

The decision for the majority of the panel, by Circuit Judge Robert Bruce King, acknowledged that the Supreme Court had said in Lawrence that the case before it did not involve minors and various other factors.  But, he said, that failed to take account of everything that the Supreme Court did and said in its ruling.  “In Lawrence,” he wrote, “the Supreme Court plainly held that statutes criminalizing private acts of consensual sodomy between adults are inconsistent with the protections of liberty assured by the Due Process Clause of the Fourteenth Amendment.”   On its face, the Virginia statute continues to treat such conduct as criminal.  Judge King pointed out that in Lawrence the Supreme Court specifically granted review on the question whether Bowers v. Hardwick should be overruled.  And, as noted above, the Supreme Court answered that question in the affirmative, stating that “the rationale of Bowers does not withstand careful analysis. . .  Bowers was not correct when it was decided, and it is not correct today. . .  Bowers v. Hardwick should be and now is overruled.” 

If Bowers is overruled, that means that a sodomy law like the Georgia law challenged in Bowers is unconstitutional, said King.  “The Lawrence Court thus recognized that the facial due process challenge in Bowers was wrongly decided.  Because the invalid Georgia statute in Bowers is materially indistinguishable from the anti-sodomy provision being challenged here, the latter provision likewise does not survive the Lawrence decision.”  Bowers would be considered a “facial” due process challenge because it was not an appeal from a criminal prosecution, but rather an action filed in federal court for a declaratory judgment that the Georgia law was unconstitutional.  Michael Hardwick’s constitutional standing to bring the action was based on his arrest by Atlanta police for violating the statute, but that did not limit the scope of his lawsuit; although Justice Byron White’s opinion for the Bowers Court spoke as if the case was limited to homosexual conduct, it was not.

“True enough,” wrote King, “the Supreme Court implied in Lawrence that a state could, consistently with the Constitution, criminalize sodomy between an adult and a minor. . .  The Court’s ruminations concerning the circumstances under which a state might permissibly outlaw sodomy, however, no doubt contemplated deliberate action by the people’s representatives, rather than by the judiciary.”  In other words, if Virginia wants to outlaw adults soliciting minors to engage in constitutionally unprotected conduct, it can do so, but it must do so explicitly.  In fact, there is a Virginia statute making it a crime for an adult to engage in sex with a person under the age of 15, and another statute criminalizing incestuous sodomy involving both minors and adults, but those statutes clearly do not reach MacDonald’s conduct in this case.  King concluded, “The anti-sodomy provision itself, however, which served as the basis for MacDonald’s criminal solicitation conviction, cannot be squared with Lawrence without the sort of judicial intervention that the Supreme Court” has condemned as violating the separation of powers as between courts and legislatures.  In the majority’s view, the decision how much conduct to prohibit after Lawrence is a legislative decision, and the court should not presume to know where the legislature would draw its lines.

Circuit Judge Albert Diaz dissented, asserting that under the statute governing habeas corpus, the Virginia courts had not clearly violated Federal constitutional law by upholding MacDonald’s conviction, pointing out that lower federal courts and state courts have differing views over the scope of the Lawrence ruling.  “The majority ultimately may be proved right that the Virginia ‘anti-sodomy provision facially violates the Due Process Clause of the Fourteenth Amendment,'” he wrote.  “But because the matter is not beyond doubt after Lawrence, and because the district court was bound to give Virginia courts the benefit of that doubt on federal collateral review, I respectfully dissent.” 

Diaz contended that the majority misconstrued Lawrence as having invalidated the Texas sodomy law on its face, as opposed to invalidating at as applied to the Petitioners in that case, John Lawrence and Tyron Garner.  He pointed out that the language of the Lawrence opinion would support an interpretation that it was being treated by the Court as an “as applied” challenge to the law, which would mean that the Texas Homosexual Conduct Law could still be used to prosecute cases of sex involving minors, prostitution, public acts, or non-consensual situations.  In fact, the Texas legislature has refused to repeal or amend that law, and law enforcement authorities in Texas presumably continue to rely upon it to prosecute cases that don’t involve private consensual adult sex. 

“In any event,” wrote Diaz, “in order for MacDonald to prevail on his federal habeas petition, it must be clear that Lawrence facially invalidated all sodomy statutes.  Nowhere in the opinion does the Court do that.  The majority nevertheless infers the unconstitutionality of Virginia’s anti-sodomy provision from the fact that Lawrence expressly overruled Bowers.  Again, this is a bridge too far.  If it is difficult to discern from the Lawrence opinion whether it invalidated all sodomy statutes, it is even more of a stretch to do so by negative inference from the case it overturned.” 

Diaz also argued that the majority had misconstrued another Supreme Court case in its holding that the Virginia sodomy statute could not be judicially construed to prohibit  conduct outside of that protected under Lawrence.  “In order for the Virginia anti-sodomy provision to escape facial invalidity, it need not criminalize only conduct that falls outside constitutional protection,” he argued.  “Indeed, to suggest that a state must excise the constitutional defects of a statute by legislative revision before enforcing those portions that pass constitutional muster would turn every as-applied ruling into a facial invalidation,” he asserted.  Diaz contended that under the habeas corpus statute, a state court’s ruling on the constitutionality of a criminal statute could only be invalidated by the federal court if there is “a certainty, not just a likelihood, that a state court ruling ‘reached a decision contrary to clearly established federal law.’  Unlike the majority,” he concluded, “the district court here remained faithful to that distinction in declining to issue the writ.”

While it would appear to be a better use of the state’s resources for Cuccinelli to focus on getting the legislature to amend Virginia’s sodomy law so that it only applies to constitutionally-unprotected activity, Cuccinelli is seeking the Republican nomination for governor and, appealing to the core Republican constituency, it undoubtedly makes political sense for him to pose as a defender of public morality seeking to overturn a federal decision holding that sodomy law to be facially unconstitutional. 

It is possible that the full 4th Circuit bench, consisting of  fifteen judges, may agree with Judge Diaz’s dissent.  As to the politics of the thing, however, out of those 15 judges, six were appointed by President Obama, four by President Clinton, and the remainder by Republican presidents.  The 4th Circuit is one of the few federal circuits that President Obama has successfully converted to a majority appointed by Democratic presidents, as there were numerous vacancies on that circuit and a genuine emergency in handling appeals, which prompted the Senate to act relatively expeditiously in confirming his nominees as compared to the situation in some other circuits.  The majority of the MacDonald panel, Judge King and Circuit Judge Diana Gribbon Motz, were  appointed by President Clinton.  Dissenting Judge Diaz was appointed by President Obama.

4th Circuit Panel Debates Scope of Lawrence v. Texas; Majority Strikes Virginia Sodomy Law

Posted on: March 13th, 2013 by Art Leonard 1 Comment

Did Lawrence v. Texas, the U.S. Supreme Court’s 2003 decision holding that the Texas Homosexual Conduct Law violated the 14th Amendment Due Process clause, firmly establish a broad principle of federal constitutional law, or was it a narrow ruling that a state sodomy law cannot be used to prosecute private, consensual adult homosexual conduct?  A three-judge panel of the U.S. Court of Appeals for the 4th Circuit, based in Richmond, Virginia, debated that question in a March 12 decision, MacDonald v. Moose, 2013 Westlaw 935778, a majority ruling that Virginia’s sodomy law is clearly unconstitutional, while a dissenter argued that the law was constitutional as applied to the case of William Scott MacDonald.

According to the majority opinion by Circuit Judge Robert Bruce King, construing Lawrence requires taking account of the Supreme Court’s overruling of Bowers v. Hardwick, the 1986 decision that upheld the constitutionality of Georgia’s sodomy law.  In Lawrence, the Supreme Court majority said that Bowers was wrong when it was decided and should be overruled.  To King (and Judge Diana Gribbon Motz, who joined his opinion), this inevitably meant that the Virginia sodomy law, similar to the Georgia law considered in Bowers, must be unconstitutional on its face.  That being the case, soliciting sodomy could not be a criminal act, and the woman involved in this case was old enough to consent in light of other Virginia criminal statutes.

Dissenting Judge Albert Diaz saw things differently, pointing out that the Lawrence Court was careful to specify what it was and was not deciding, emphasizing that the case involved private, consensual adult sex, and that the Court was not considering any other circumstances.

In the case before the 4th Circuit, William Scott MacDonald was seeking a writ of habeas corpus, challenging his conviction under a Virginia solicitation statute.  MacDonald, an adult man, was convicted of criminal solicitation of oral sex with a 17-year-old woman.  In order for his solicitation to be a crime, the act he was soliciting would itself have to be a crime, and the Virginia courts relied on the sodomy law, which the legislature has refused to repeal despite the Lawrence ruling casting doubt on its constitutionality.  At all levels of the Virginia court system, the courts took the position that MacDonald’s conviction was constitutional because he was soliciting oral sex from a minor, and in Lawrence the Supreme Court was deciding whether the Texas law could be used to prosecute consenting adults.  Even the federal trial judge who heard MacDonald’s pro se petition for the writ of habeas corpus agreed with the Virginia courts.

Judge King wrote, “In Lawrence, the Supreme Court plainly held that statutes criminalizing private acts of consensual sodomy between adults are inconsistent with the protections of liberty assured by the Due Process Clause of the Fourteenth Amendment.”  The Virginia law makes no distinctions between private and public conduct, consensual or nonconsensual conduct, or conduct involving people of different ages.  It just broadly outlaws all acts of oral and anal sex, and, thus, was facially unconstitutional, according to the majority of the panel.  King found that it would violate the respective roles of courts and legislatures for the court to effectively revise the Virginia sodomy law in order to preserve its constitutionality by applying it solely to cases falling outside the specific factual parameters of Lawrence.  Judge Diaz found, to the contrary, that such an approach is supported by precedent, construing a statute narrowly to preserve its constitutionality being a well-established procedure for appellate courts, and that application of the law to MacDonald is constitutional.

Interestingly, all three judges were appointed by Democratic presidents: Bill Clinton apointed Judge Motz, and Barack Obama appointed Judges King and Diaz.  Given its resistance to revising its sodomy law, one suspects that Virginia will seek en banc review from the 4th Circuit, or perhaps review from the Supreme Court.