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Federal Court Enjoins Michigan Policy Requiring Faith-Based Adoption Agencies to Certify Same-Sex Couples as Suitable Adoptive or Foster Parents

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

Chief U.S. District Judge Robert J. Jonker ruled that a faith-based adoption and foster care agency should not be endangered with loss of its license to function as a certified child placement agency under contract with the state of Michigan while a lawsuit proceeds challenging the state’s current interpretation of its non-discrimination law resulting from the settlement agreement between the state and some same-sex couples in a separate case.  Buck v. Gordon, 2019 U.S. Dist. LEXIS 165196, 2019 WL 4686425 (W.D. Mich., Sept. 26, 2019).

The ruling follows a complicated series of events and is based on a detailed review by the court of the systems and procedures in place for adoption and foster care in Michigan.

According to Judge Jonker’s opinion, a Michigan regulation and the federal law under which financial assistance is channeled to Michigan to support the state’s adoptive and foster-care system requires that people seeking to be certified as qualified to be adoptive or foster parents not be subjected to discrimination because of sexual orientation or gender identity, among many prohibited grounds of discrimination.

Because some of the private agencies under contract with the state to provide these services are “faith-based” agencies whose religious views would prevent them from certifying single people or same-sex couples as qualified, and the state legislature did not want to see such agencies abandon the field, the state enacted a statute in 2015 allowing faith-based agencies to refer applicants to other agencies to perform the evaluation process and issue the certifications if the agency’s religious beliefs would prevent them from being able to certify an applicant or couple.

Some same-sex couples challenged this “religious freedom” statute as violating their constitutional rights in Dumont v. Gordon, Case No. 2:17-cv-13080 (E.D. Mich., filed Sept. 20, 2017).  The state defended the statute, and St. Vincent Catholic Charities, a long-time faith-based provider of such services, was drawn into the case, because the same-sex couples had approached St. Vincent and were referred elsewhere for their home study and certification.  After out lesbian Dana Nessel was elected Attorney General, during a campaign in which she criticized the state law which, which she said was authorizing discrimination against LGBT people, she changed the state’s position, and her office negotiated a settlement under which the state undertook to enforce the anti-discrimination rules without any exception for faith-based agencies.

St. Vincent, whose contract with the state covering adoption services expires September 30, 2019, was warned that unless it dropped its policy of referring same-sex couples to other agencies, its contract might not be renewed, which would mean not only the loss of state money but the loss of its status as a contracted services provider, which meant it could no longer function in the adoption placement service.  Its contract for foster care services runs through September 30, 2021, so is not in immediate danger of non-renewal.

In this lawsuit, St. Vincent and some of the foster and adoptive parents who have worked with it in the past brought suit challenging the state’s action, seeking the protection of the statute that was challenged in the earlier case, and a declaration that any requirement for St. Vincent to drop its objection to examining and certifying same-sex prospective adoptive or foster parents would violate the 1st and 14th Amendments.  In addition to naming state officials, the lawsuit names the U.S. Secretary of Health and Human Services, as federal non-discrimination regulations are also implicated.  As a result, the lawsuit also rests on the federal Religious Freedom Restoration Act.

As Judge Jonker describes the system, although St. Vincent routinely refers same-sex couples to other agencies for certification, once an individual or couple are certified to be adoptive or foster parents, they may adopt or foster through St. Vincent.  St. Vincent has placed children with same-sex couples, and opens the various supportive services it provides to adoptive and foster families of such couples.  The only issue as to which there is disagreement between St. Vincent and the state, according to their Complaint, is the issue of evaluating the prospective parents and certifying them.

Judge Jonker concluded that in light of these facts, St. Vincent should be entitled to a preliminary injunction while the case is being litigated, with the pressing deadline of September 30 for renewal of their current contract as an adoption service provider looming just days after the injunction was issued.

The first essential test for injunctive relief is whether St. Vincent is likely to be successful in their claim of a constitutional violation.  Finding that this test was met, the judge said that this case is not covered by Supreme Court precedents holding that no religious exemption is required when a challenged law is neutral with respect to religion and is of general applicability, of which the leading case is Employment Division v. Smith, 494 U.S. 872 (1990).  Taking account of the historical background to the challenged policy here, the judge found that “the historical background, specific series of events, and statements of Defendant Nessel all point toward religious targeting.”

Reviewing the sequence of events described above, he found that “the 2018 campaign for Michigan Attorney General and General Nessel’s statements create a strong inference that the State’s real target is the religious beliefs and confessions of St. Vincent, and not discriminatory conduct.”  He based this conclusion on St. Vincent’s allegation that it “has never prevented a same-sex couple from fostering or adopting a child.”  If St. Vincent was required to accept applications from same-sex couples and carry out its evaluation, it would be put to the task of stating whether the couple should be certified to be adoptive or foster parents, a determination that it would want to make in accord with its religious principles, which would mean denying the certification.  Instead, St. Vincent makes referrals of such couples to other agencies, knowing that those agencies will certify the couples if they meet the objective criteria specified by state regulations.

Furthermore, he appointed out, under the system in Michigan, children who need an adoptive or foster placement are referred to contracted agencies through the Michigan Adoption Resource Exchange (MARE) and, he found, “St. Vincent has actually placed children though the MARE system with same-sex adoptive parents.”  Once a prospective couple has been certified, St. Vincent avows, they are treated the same as any other certified couple with regard to all its adoption and fostering placements and services.

“The State is willing to prevent St. Vincent from doing all this in the future simply because St. Vincent adheres to its sincerely held religious belief that marriage is an institution created by God to join a single man to a single woman,” he wrote.  “Because of that religious belief, St. Vincent says it cannot in good conscience review and certify an unmarried or same-sex parental application.  St. Vincent would either have to recommend denial of all such applications, no matter how much value they could provide to foster and adoptive children; or St. Vincent would have to subordinate its religious beliefs to the State-mandated orthodoxy, even though the State is not compensating them for the review services anyway.”  St. Vincent makes referrals of single folks and same-sex couples to other agencies to avoid being put into this quandary.

The court notes that until Attorney General Nessel took office, the state had been defending this practice in the prior litigation, and Nessel’s rhetoric during the campaign convinced the judge that the settlement of the Dumont lawsuit and the agreement to enforce the non-discrimination policy against all contracting agencies showed that the new policy is targeting religion even though it appears neutral on its face.

Judge Jonker determined that this is a “strict scrutiny” case because it targets religious belief, and that under this demanding test, the new policy is likely to be held unconstitutional.  He also found that this case was materially distinguishable from the Philadelphia case decided by the 3rd Circuit Court of Appeals earlier this year, Fulton v. City of Philadelphia, 922 F.3d 140 (2019), because of differences in the facts: the Catholic agency in Philadelphia was refusing to deal with same-sex couples at all, while St. Vincent refers them to other agencies for certification, and once they are certified, will place children with them and provide supportive services.

The court also determined that the balance of harms as between issuing or not issuing the injunction weighed in favor of issuing it, against both the state and the federal government, because of the possibility (remote, it would seem) that the Trump Administration would cut off funds to a state that has passed a law allowing faith-based agencies to abstain from providing some services based on their religious beliefs.  As to the public interest, the court found that it is in the interest of the public not to shut down any adoption or foster care agencies in light of the significant number of children in Michigan that need placements and the supportive services that St. Vincent provides, including to same-sex couples and their adoptive or foster children.

The court rejected the state’s argument that these issues had already been decided in Dumont  in favor of applying the non-discrimination policy to all agencies. The judge pointed out that Dumont was settled by the parties after Nessel changed the state’s position.  There was no judgment on the merits by the court, so there was no final judgment determining the underlying legal issue and no reason to find the issue res judicata.

The court’s use of the Supreme Court’s Masterpiece Cakeshop ruling in rendering this decision is noteworthy.  In Masterpiece, the Supreme Court refrained from ruling on the underlying constitutional question whether a baker has a 1st Amendment right to decline to produce custom wedding cakes for same-sex couples, instead ruling for the baker based on the Court’s detection in the record of overt hostility to religion by some of the members of the Colorado civil rights commission that was deciding that case at the administrative level.  Since then, several lower courts have focused on the Supreme Court’s “hostility to religion” language, and Judge Jonker does in this case, finding that Nessel’s “hostility to religion” expressed during her election campaign feeds into the question whether the state’s current position targets religion, even though the policy is facially neutral, applying the non-discrimination policy to all adoption and foster care services, not just faith-based ones.

Judge Jonkin prefaced his opinion with a careful statement about what was not at issue.  “This case is not about whether same-sex couples can be great parents,” he wrote.  “They can.  No one in the case contests that.  To the contrary, St. Vincent has placed children for adoption with same-sex couples certified by the State.”  To the judge, this case was about whether St. Vincent can continue to operate in a way consistent with the religious creed to which it subscribes, or whether it must violate those religious beliefs if it is to continue providing adoption and foster care services.

The Becket Fund for Religious Liberty of Washignton D.C. provided legal representation to the plaintiffs and St. Vincent.  Michigan’s Department of the Attorney General represented the state defendants, and the U.S. Justice Department represented the federal defendants.  The plaintiffs in Dumont v. Gordon, Kristy and Dana Dumont, were represented as amici by attorneys from the ACLU and pro bono counsel from Sullivan & Cromwell LLP.

Although this was just a ruling on a preliminary injunction, it signals quite clearly that Judge Jonker’s final ruling on the merits is likely to go the same way.  The State could appeal the ruling to the 6th Circuit Court of Appeals.  Judge Jonker, who is the chief judge for the Western District of Michigan, was appointed by President George W. Bush in 2007.

TWO MORE LGBTQ-RELATED CONTROVERSIES DROP OFF THE SUPREME COURT DOCKET

Posted on: January 10th, 2018 by Art Leonard 2 Comments

As the Supreme Court’s 2017-18 Term began in October, it looked like a banner term for LGBTQ-related cases at the nation’s highest court. Petitions were pending asking the Court to address a wide range of issues, including whether LGBTQ people are protected against discrimination under federal sex discrimination laws covering employment (from Georgia) and educational opportunity (from Wisconsin), whether LGBTQ people in Mississippi had standing to seek a federal order to prevent a viciously anti-gay religiously-motivated law from going into effect, and whether the Texas Supreme Court erred in holding that Obergefell v. Hodges, 135 S. Ct. 2584 (2015), did not necessarily require a municipal employer to treat same-sex married couples the same as different-sex married couples in their employee benefits plans.  The Court had already granted review in a “gay wedding cake” case from Colorado (Masterpiece Cakeshop, which was argued on December 5), and another petition involving a Washington State florist who refused to provide floral decorations for a same-sex wedding was waiting in the wings.

 

But the hopes for a blockbuster term have rapidly faded. In December, the Court declined to hear the employee benefits case and the Title VII employment discrimination case.  And now in January, the Court has declined to hear the Mississippi cases, Barber v. Bryant and Campaign for Southern Equality v. Bryant, and the Wisconsin case, Whitaker v. Kenosha Unified School District, has settled, with the school district agreeing to withdraw its Supreme Court petition.   It may be that the only LGBTQ-related issue that the Court decides this term is the one it heard argued in December: whether a business owner’s religious objections to same-sex marriage or his right to freedom of speech would privilege him to refuse to make a wedding cake for a same-sex couple.  An opinion expected sometime in the coming months.

On January 8, the Supreme Court refused to review a ruling by the 5th Circuit Court of Appeals, Barber v. Bryant, 860 F.3d 345 (5th Cir.), petition for rehearing en banc denied, 872 F.3d 671 (2017), which had dismissed a constitutional challenge to Mississippi’s infamous H.B. 1523, a law enacted in 2016 that protects people who discriminate against LGBTQ people because of their religious or moral convictions.  The 5th Circuit had ruled that none of the plaintiffs – either organizations or individuals – in two cases challenging the Mississippi law had “standing” to bring the lawsuits in federal court.

H.B. 1523, which was scheduled to go into effect on July 1, 2016, identifies three “religious beliefs or moral convictions” and protects against “discrimination” by the state anybody who acts in accord with those beliefs in a wide range of circumstances. The beliefs, as stated in the statute, are: “(a) Marriage is or should be recognized as the union of one man and one woman; (b) sexual relations are properly reserved to such a marriage; and (c) male (man) or female (woman) refers to an individual’s immutable biological sex as objectively determined by anatomy and genetics at time of birth.”  Among other things, the law would protect government officials who rely on these beliefs to deny services to individuals, and would preempt the handful of local municipal laws in the state that ban discrimination because of sexual orientation or gender identity, so that victims of discrimination would have no local law remedy.  Mississippi does not have a state law banning sexual orientation or gender identity discrimination, so H.B. 1523 in relation to private businesses and institutions was mainly symbolic when it came to activity taking place outside of the cities of Jackson, Hattiesburg and Oxford, or off the campus of the University of Southern Mississippi.

Two groups of plaintiffs brought constitutional challenges against the law in the U.S. District Court for the Southern District of Mississippi, where the case came before Judge Carlton W. Reeves, the same judge who ruled for plaintiffs in a case challenging Mississippi’s ban on same-sex marriage a few years earlier. He issued a preliminary injunction against implementation of H.B. 1523 on June 30, 2016, the day before it was to go into effect, finding that it would violate the 1st Amendment by establishing particular religious beliefs as part of the state’s law.  The plaintiffs also challenged it on Equal Protection grounds. Judge Reeves refused to stay his preliminary injunction, and so did the 5th Circuit.

The state appealed the grant of preliminary injunction to the 5th Circuit, where a unanimous three-judge panel ruled on June 22, 2017, that the district court did not have jurisdiction to issue the injunction because, according to the opinion by Circuit Judge Jerry Smith, none of the plaintiffs could show that they had suffered or were imminently likely to suffer a “concrete and particularized injury in fact,” which was necessary to confer the necessary “standing” to challenge the law in federal court.  In the absence of standing, he wrote, the preliminary injunction must be dissolved and the case dismissed.

The plaintiffs asked the full 5th Circuit to reconsider the ruling en banc, but the circuit judges voted 12-2 not to do so, announcing that result on September 29.  The dissenters, in an opinion by Judge James L. Dennis, bluntly stated that “the panel decision is wrong” and “misconstrues and misapplies the Establishment Clause precedent.”  Indeed, wrote Judge Dennis, “its analysis creates a conflict between our circuit and our sister circuits on the issue of Establishment Clause standing.”

Judge Dennis pressed home the point by citing numerous cases from other circuits which, he held, would support allowing the plaintiffs in this case to seek a preliminary injunction blocking the law from going into effect.  This gave hope to the plaintiffs that they might be able to get the Supreme Court to take the case and reverse the 5th Circuit, since one of the main criteria for the Supreme Court granting review is to resolve a split in authority between the circuit courts on important points of federal law.

However, on January 8 the Court denied the petitions the two plaintiff groups had filed, without any explanation or open dissent, leaving unresolved important questions about how and when people can mount a federal court challenge to a law of this sort. In the meantime, shortly after the 5th Circuit had denied reconsideration, H.B. 1523 went into effect on October 10.

A challenge to H.B. 1523 continues in the District Court before Judge Reeves, as new allegations by the plaintiffs require reconsideration of their standing and place in question, especially in light of the Supreme Court’s June 2017 ruling, Pavan v. Smith, 137 S. Ct. 2075, whether the law imposes unconstitutional burdens on LGBTQ people seeking to exercise their fundamental constitutional rights.

Two days after the Court announced it would not review the 5th Circuit ruling, the parties in Whitaker, 858 F. 3d 1034 (7th Cir. 2017), involving the legal rights of transgender students under Title IX of the Education Amendments of 1972 and the Equal Protection Clause of the 14th Amendment, announced a settlement.  Under their agreement the school district will withdraw its cert petition.

The Supreme Court had been scheduled to hear a similar transgender student case last March, Gloucester County School Bd. v. G. G. ex rel. Grimm, but that case was dropped from the docket after the Trump Administration withdrew a Guidance on Title IX compliance that had been issued by the Obama Administration.  Since the 4th Circuit’s decision in Gavin Grimm’s case had been based on that Guidance rather than on a direct judicial interpretation of the statute, the Supreme Court vacated the 4th Circuit’s ruling and sent the case back to the 4th Circuit for reconsideration. See 137 S. Ct. 1239 (Mar. 6, 2017). That court, in turn, sent it back to the district court, which dismissed the case as moot since Grimm had graduated in the interim.

Ashton Whitaker is a transgender boy who graduated from Tremper High School in the Kenosha School District last June. His case would have given the Supreme Court a second chance to address the Title IX issue.  Whitaker transitioned while in high school and asked to be allowed to use the boys’ restroom facilities, but district officials told him that there was an unwritten policy restricting bathroom use based on biological sex.  He sued the district under Title IX and the Equal Protection Clause.  U.S. District Judge Panela Pepper (E.D. Wisconsin) issued a preliminary injunction on Whitaker’s behalf in September 2016, and refused to stay it pending appeal.  See 2016 WL 5239829 (Sept. 22, 2016).

On May 30, 2017, the 7th Circuit upheld Judge Pepper’s ruling, finding that even though the Trump Administration had withdrawn the prior Title IX Guidance, both Title IX and the 14th Amendment require the school to recognize Whitaker as a boy and to allow him to use boys’ restroom facilities.  The school district petitioned the Supreme Court on August 25 to review the 7th Circuit’s decision, even though Whitaker had graduated in June.

In the meantime, Judge Pepper ordered the parties to mediation to attempt a settlement. Whitaker’s graduation in June undoubtedly contributed to the pressure to settle, and the parties asked the Supreme Court several times to extend the deadline for Whitaker to file a formal response to the petition as the negotiations continued.  According to press reports on January 10, the case settled for $800,000 and an agreement that the district would withdraw its petition.

The settlement and withdrawal of the petition leaves the 7th Circuit’s opinion standing as the first federal circuit court ruling to hold on the merits that Title IX and the 14th Amendment require public schools to respect the gender identity of their students and to allow students to use sex-designated facilities consistent with their gender identity.  However, lacking a Supreme Court ruling on the point this decision is only binding in the three states of the 7th Circuit: Wisconsin, Illinois, and Indiana, the same three states bound by another 7th Circuit last year holding that employment discrimination because of sexual orientation violates Title VII of the Civil Rights Act of 1964.