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Supreme Court Broadens “Ministerial Exception” to Anti-Discrimination Laws, Leaving LGBTQ Employees or Religious Schools Without Protection

Posted on: July 8th, 2020 by Art Leonard No Comments

On June 15, 2020, the Supreme Court ruled that Title VII of the Civil Rights Act of 1964 protects LGBTQ people from employment discrimination.  On July 8, 2020, the Court took away that protection from most LGBTQ people who are employed as teachers by religious schools.  In a ruling expanding a “ministerial exception” to anti-discrimination laws that it had recognized under the Free Exercise Clause of the First Amendment of the Bill of Right eight years previously, the Court held that employees of religious schools whose job entails teaching religion enjoy no protection against discrimination because  of their race or color, religion, national origin, sex, age, or disability.  The Court’s vote in Our Lady of Guadalupe School v. Morrissey-Berru, 2020 WL 3808420, was 7-2.

The prior decision, Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, 565 U. S. 171 (2012), involved a teacher at a Lutheran church school, whom the Court found to be, in effect, a “minister” of the Church, since she had been formally “called” to the ministry by the congregation after a period of extended theological study, and who had even claimed the tax benefits of being clergy.  Although the teacher in question did not teach religion as her primary assignment, the Court found it easy to conclude that it would violate Hosanna-Tabor’s right to free exercise of religion under the First Amendment for the government to intervene in any way in its decision not to continue this teacher’s employment, even if – as the teacher alleged – she was being discriminated against because of a disability in violation of the Americans with Disabilities Act (ADA).

The July 8 decision involved two teachers at Catholic elementary schools in the Los Angeles Diocese.  Neither of them was formally a “minister,” neither of them had extended religious education.  As grade school teachers, they each taught the full range of subjects, including a weekly unit on Catholic doctrine at appropriate grade level for their students, but the overwhelming majority of their time was spent teaching arithmetic, science, history, reading, and so forth – the normal range of what a grade school teacher covers, but with an overlay of Catholicism.  They also were supposed to pray with their students every day, and to attend Mass with them weekly.

One of the teachers claimed that she was dismissed because the school want to replace her with a younger person, suing under the Age Discrimination in Employment Act.  The other claimed she was forced out because of a disability, in violation of the ADA.  In both cases, the U.S. Court of Appeals for the 9th Circuit, reversing trial judges, found that these teachers could sue their schools for discrimination because they were not ministers.

The 9th Circuit looked to the Hosanna-Tabor ruling and found that unlike the teacher in that case, these teachers did not have extensive religious education, were not “called” to ministry or titled as ministers by their schools, and were essentially lay teachers whose time teaching religion was a small part of their duties.

Justice Samuel Alito, writing for the Supreme Court, said that the 9th Circuit had misinterpreted the Hosanna-Tabor case.  He rejected the idea that there was a checklist that could be mechanically applied to the question whether somebody is a “ministerial employee,” instead focusing on the religious mission of the Catholic School and the role the teacher plays in that mission.

“The religious education and formation of students is the very reason for the existence of most private religious schools,” wrote Alito, “and therefore the selection and supervision of the teachers upon whom the schools rely to do this work lie at the core of their mission. Judicial review of the way in which religious schools discharge those responsibilities would undermine the independence of religious institutions in a way that the First Amendment does not tolerate.”

In a concurring opinion, Justice Clarence Thomas (joined by Justice Neil Gorsuch) argued that the Court needn’t even probe into the details of the teachers’ employment, but instead should defer to a religious school’s determination whether their employees are excluded from coverage of anti-discrimination laws because of the ministerial exception.  However, the Court was not willing to go that far, and Justice Alito’s opinion made clear that how to classify an employee of a religious institution is a fact-specific determination that does require looking at the job duties of the employee.

In her dissenting opinion, Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, rejected Alito’s contention that the Court’s ruling was a faithful application of the Hosanna-Tabor precedent.  Although the Court had not explicitly adopted Justice Thomas’s “deference” approach, she charged that it had actually adopted Thomas’s approach when it classified these teachers as covered by the ministerial exception.  She wrote that “because the Court’s new standard prizes a functional importance that it appears to deem churches in the best position to explain, one cannot help but conclude that the Court has just traded legal analysis for a rubber stamp.”

To the dissenters, there was a world of difference between the teacher in Hosanna-Tabor and the teachers in this case, and they could see no good reason why church schools should be free to discriminate on the full list of grounds prohibited by anti-discrimination laws when the schools had no “theological” reason for discharging the teachers.

Federal anti-discrimination laws specifically allow religious schools to discriminate based on religion, but not based on such grounds as race or color, sex, national origin, age or disability, except for their “ministers,” as to whom traditionally the churches would have total freedom to decide whom to employ.  The Supreme Court long recognized churches’ freedom from government interference in employing “ministers.”  Hosanna-Tabor extended the concept from clergy to some religious teachers, but Sotomayor argued that this new decision takes that concept too far away from traditional religious leadership roles, taking protection against discrimination away from thousands of teachers.

The Court’s ruling may have an immediate adverse effect in lawsuits pending around the country by teachers who have been systematically fired by religious schools – almost entirely Catholic schools – after marrying their same-sex partners in the wake of the Obergefell decision five years ago.  By rejecting Justice Thomas’s “deference” approach, the Court leaves open the possibility that some of these discharged teachers might be able to prove that the “ministerial exception” does not apply to them, but, as Justice Sotomayor suggests, in most cases courts will have to dismiss their discrimination claims if their job had a religious component similar to the elementary school teachers, even if that was only a minor part of their role.

9th Circuit Rejects Parents & Students Lawsuit Against Trans-Friendly Oregon School District

Posted on: February 18th, 2020 by Art Leonard No Comments

A unanimous three-judge panel of the San Francisco-based U.S. Court of Appeals for the 9th Circuit has affirmed a ruling by U.S. District Judge Marco A. Hernandez, Jr., that the Dallas School District No. 2 did not violate the legal rights of parents and students who objected to the District’s policy allowing transgender students to use facilities consistent with their gender identity.  Parents for Privacy v. Barr, 2020 Westlaw 701730 (February 12, 2020).

The decision was made by a panel comprised entirely of judges appointed by Democratic presidents.  Senior Judge A. Wallace Tashima, who was appointed by Bill Clinton, wrote the court’s opinion. The other members of the panel were Susan P. Graber, also appointed by Clinton, and John B. Owens, who was appointed by Barack Obama.

The school district adopted its policy in response to a request from a transgender student, identified in the court’s opinion as Student A, who was identified as female at birth but announced in September 2015 that he identified as a boy and asked school officials to let him use the boys’ bathroom and locker room.  This was before the Obama Administration sent out its letter to all school districts advising that transgender students have a legal right to such access, advice that the Trump Administration disavowed shortly after taking office early in 2017.

In response to Student A’s request, the District created a “Student Safety Plan” for Student A and any other transgender student who might make such a request in the future, “in order to ensure that Student A could safely participate in school activities,” wrote Judge Tashima.  Under this Plan, Student A and any other transgender student could “use any of the bathrooms in the building to which he identifies sexually.”

The Plan also provide that all school staff would receiving training and instruction regarding Title IX, the federal statute that provides that schools receiving federal funding must afford equal educational opportunity to all students, regardless of their sex.  The Plan also provided that the phys ed teacher would be the first to enter and leave the locker room, so the teacher would be present at all times that students were using that facility, and that Student A’s locker would be in direct line of sight of the coach’s office, so the coach would see if anybody interfered with Student A.

The plaintiffs in this lawsuit claim that when Student A began using the boys’ locker room and changing clothes “while male students were present,” the cisgendered boys were caused “embarrassment, humiliation, anxiety, intimidation, fear, apprehension, and stress,” since they had to change their clothes in the presence of somebody whose birth certificate said they were female.  The presence of privacy stalls in the bathrooms was deemed insufficient by plaintiffs, because they had gaps through which “partially unclothed bodies” could “inadvertently” be seen, and they complained that a single-user bathroom was “often inconvenient or considered inferior because it lacked a shower.”

In other words, they were arguing that the transgender student should have to use the inconvenient and inferior facility rather than them, due to their “stress” and “fear” around the possibility of encountering Student A while using these facilities.

The parents who joined as plaintiffs claimed that the school’s policy interfered with some parents’ “preferred moral and/or religious teaching of their children concerning modesty and nudity,” wrote Judge Tashima.  “In addition, several cisgender girls suffered from stress and anxiety as a result of their fear that a transgender girl student who remains biologically male would be allowed to use the girls’ locker room and bathroom.”  They found inconvenient the idea that they would have to resort to changing in the nurse’s office, which was “on the other side of the school,” to avoid such exposure.

Students opposing the plan circulated a petition, but the principal “confiscated” the petitions and ordered students to discontinue that activity, and the District stood firm behind its policy.

The complaint alleged violations by the U.S. Education and Justice Departments of the Administrative Procedure Act, Title IX, the Religious Freedom Restoration Act, and the 1st and 14th Amendments of the Constitution, but the court agreed with Judge Hernandez that the federal defendants were not properly in the case because they had nothing to do with the District’s decision to adopt the policy.

The plaintiffs asserted claims against the District under the 1st and 14th Amendments, charging interference with the privacy rights of cisgender students and interference with the parents’ liberty interest in raising their children, as protected by the Due Process Clause.   They also raised claims against the District under Title IX and Oregon’s public accommodations and education laws.

Judge Tashima first tackled the plaintiffs’ privacy arguments, concluding that plaintiffs “fail to show that the contours of the privacy right protected by the Fourteenth Amendment are so broad as to protect against the District’s implementation of the Student Safety Plan.”  He said that because the Plan provides “alternative options and privacy protections” to students who did not wish to be exposed to Student A in the shared facilities, no student was forced into such a situation, even if the alternative options “admittedly appear inferior and less convenient.”

He also rejected the argument that the Plan created a “hostile environment” for cisgender students, in violation of Title IX.  Judge Hernandez found that the Plan does not discriminate against any student because of his or her sex, since its rules apply across the board to all students, and noted that decisions by other courts had all agreed that “the presence of transgender people in an intimate setting does not, by itself, create a sexually harassing environment that is severe or pervasive,” and thus fails to meet the standard to find a statutory violation.  The 9th Circuit panel stated agreement with Judge Hernandez’s conclusion, rejecting the plaintiffs’ argument that because Title IX regulations authorize schools to have single-sex facilities separately for boys and girls, the schools should be required to maintain such segregation.  These regulations were issued to make clear that a school would not be violating Title IX if it had separate facilities for boys and girls, provided they were equal facilities, but not to require schools to exclude transgender students from using the facilities.

The district court rejected the argument that the Plan went so far as to violate the parents’ constitutional rights, pointing out that the Supreme Court and other federal courts have rejected claims by parents that they were entitled to control the school curriculum or policies in order to “protect” their children from influences feared by the parents.  “In sum,” wrote Tashima, “Plaintiffs fail to cite any authority that supports their asserted fundamental Fourteenth Amendment parental right to ‘determine whether and when their children will have to risk being exposed to opposite sex nudity at school’ and ‘whether their children, while at school, will have to risk exposing their own undressed or partially unclothed bodies to members of the opposite sex’ in ‘intimate, vulnerable settings like restrooms, locker rooms, and showers.’”

The court also rejected the parents’ free exercise of religion claim that they had a right to shield their children from exposure to views that the parents would consider immoral on religious grounds.  The court referred to Supreme Court precedents rejecting free exercise claims to be exempt from complying with religiously neutral and generally applicable policies that don’t specifically target religious beliefs.  “Because the District’s Plan did not force any Plaintiff to embrace a religious belief and did not punish anyone for expressing their religious beliefs,” wrote Tashima, “the district court concluded that the Plan is ‘neutral and generally applicable with respect to religion,’ and therefore did not violate Plaintiffs’ First Amendment rights,” to which the 9th Circuit panel signified its agreement.  The court found that any constitutional claim against the Plan would be defeated under the appropriate “rational basis” standard of judicial review, finding that it served a legitimate governmental interest of enabling the transgender student to enjoy equal access to the District’s facilities.

The court concluded that the District’s “carefully-crafted Student Safety Plan seeks to avoid discrimination and ensure the safety and well-being of transgender students,” and that it did not violate Title IX or any constitutional rights of the parents and cisgender students.  Thus, the court upheld Judge Hernandez’s decision to grant the defendants’ motion to dismiss the lawsuit.

This result is consistent with rulings by several other courts, including a similar ruling by the Philadelphia-based 3rd Circuit Court of Appeals that was denied review by the Supreme Court last year.  However, the Supreme Court is considering petitions in several other cases presenting the question whether to re-evaluate its long-standing precedent that there is no constitutional religious free exercise exemption from complying with religiously-neutral, generally applicable government policies, and several members of the Court have already signaled, in concurring and dissenting opinions, their openness to take that step.  If the Court grants review in any of those cases, or this one if the plaintiffs file a petition for review, an important brick in the wall of separation between church and state may be breached.

Meanwhile, the plaintiffs could file a petition for rehearing before an expanded panel of the court.  In the 9th Circuit, if a majority of the 29 judges favor such a rehearing, it would go to a panel of eleven members of the Circuit Court.

The court received nine amicus briefs, none of which supported the plaintiffs’ position!  The American Civil Liberties was permitted to argue on behalf of the rights of transgender students.  All the major LGBT and transgender rights organizations were represented by amicus briefs, as well as a host of professional associations in the fields of medicine, education, and civil rights.  The usual opponents of LGBT rights seem to have ignored this appeal, perhaps anticipating the result as predictable, given the liberal reputation of the 9th Circuit, but it is worth pointing out that Donald Trump has appointed a third of the current active judges on the 9th Circuit, and it was just the luck of the draw that this case drew a panel that included none of his appointees.  An expanded panel of eleven would necessarily include some of Trump’s appointees.

 

Kentucky Supreme Court Avoids Ruling on Clash Between Free Speech and Anti-Discrimination Law in T-Shirt Case

Posted on: November 3rd, 2019 by Art Leonard No Comments

In a case that drew 26 amicus briefs – an unusually high number for an argument in a Midwestern state high court, the Kentucky Supreme Court found an off-ramp from having to decide whether a small business that produces custom t-shirts has a right to refuse an order to print a shirt with whose message the business owner disagrees in Lexington-Fayetteville Urban County Human Rights Commission v. Hands on Originals, 2019 Ky. LEXIS 431, 2019 WL 5677638 (October 31, 2019).  The court decided that the appellant, the local human rights commission that had ruled against the business, had no jurisdiction because the entity that filed the discrimination complaint in the case was not an “individual” within the meaning of the local civil rights ordinance.

The case originated in February 2012 when a representative of the Gay & Lesbian Services Organization (GLSO), an advocacy organization in Lexington that was planning for its fifth annual Lexington Pride Festival, came to Hands On Originals, the t-shirt business, with an order for t-shirts to be used in connection with the Festival.  Hands on Originals is a small business with three owners, all of whom identify as Christians who operate the business consistently with their understanding of the Bible.  Their website has a non-discrimination statement, which includes “sexual orientations”, but says that “due to the promotional nature of our products, it is the prerogative of Hands on Originals to refuse any order that would endorse positions that conflict with the convictions of the ownership.”  The design that GLSO presented bore the name “Lexington Pride Festival” with rainbow-colored circles around an enlarged number “5” in recognition of the 5th year of the Festival, and no other text.  The employee who took the order reviewed it and quoted a price.

“The following month,” wrote Justice Laurence V. VanMeter in the court’s opinion, “a different GLSO representative contacted Hands On about the price quote and spoke with Adamson [one of the owners], who had not yet viewed the t-shirt design.  Adamson inquired into what the Pride Festival was and learned that the t-shirts would be in support of the LGBTQ+ community.  Adamson advised the GLSO representative that because of his personal religious beliefs, Hands On could not print a t-shirt promoting the Pride Festival and its message advocating pride in being LGBTQ+.  Adamson offered to refer GLSO to another printing shop.”  In the event, after word about this got out, a Cincinnati business printed the t-shirts for GLSO free of charge.  But GLSO’s president filed a complaint on behalf of the organization with the local human rights commission, charging violation of the Lexington-Fayetteville Human Rights Ordinance, which forbids discrimination against any individual based on their sexual orientation or gender identity by public accommodations.

The commission ruled in favor of the complainants, but was overruled by the Fayette Circuit Court, which instructed the commission to dismiss the charges.  The commission and GLSO appealed.  The Court of Appeals affirmed the circuit court, but the panel split, producing three opinions, out of which a majority concluded that the anti-discrimination provision was not violated by Hands On engaging in viewpoint or message censorship as a non-governmental entity.

Justice VanMeter’s opinion focused on the language of the ordinance, which provides that an “individual” claiming to be aggrieved by an unlawful practice can file a complaint with the commission.  The court concluded, by examining both the context of the ordinance and the contents of other states referenced in the ordinance, that “only an individual – being a single human – can bring a discrimination claim” under the ordinance.  Although an individual, a representative of GLSO, had filed the original complainant with the Commission, it was not filed in his individual capacity but rather as a representative of GLSO.  Thus, because “GLSO itself was the only plaintiff to file a claim” and “it did not purport to name any individual on whose behalf it was bringing the claim,” therefore GLSO “lacked the requisite statutory standing” to invoke the jurisdiction of the Human Rights Commission.

The court pointed out that Hands On “argued first to the Hearing Commissioner that GLSO, as an organization, did not have standing under the ordinance to bring a claim.”  The Hearing Commissioner rejected that argument, reaching a conclusion that the court rejects in this opinion: that an “individual” as named in the ordinance could also be an organization.  Hands On continued to push this argument through all levels of review, so it was not waived when the Kentucky Supreme Court agreed to review the lower court decisions.

“While this result is no doubt disappointing to many interested in this case and its potential outcome,” wrote Justice VanMeter, “the fact that the wrong party filed the complaint makes the discrimination analysis almost impossible to conduct, including issues related to freedom of expression and religion.  Normally in these cases, courts look to whether the requesting customer, or some end user that will actually use the product, is a member of the protected class.  And even when the reason for the denial is something other than status (conduct, for example), ways exist to determine whether the individual(s) (the requesting customer(s) or end user(s)) was actually discriminated against because of the conduct cited is so closely related to that individual’s status.  But in either scenario (whether the person allegedly discriminated against is the requesting customer or some end user) the individual is the one who has filed the lawsuit, so the court can properly determine whether that person has been discrimination against.”

VanMeter insisted that the court finds “impossible to ascertain” in this case whether the organization that filed the discrimination charge is a “member of the protected class.”  “No end user may have been denied the service who is a member of the protected class, or perhaps one was.  If so, then the determination would have to follow whether the reason for denial of service constitutes discrimination under the ordinance, and then whether the local government was attempting to compel expression, had infringed on religious liberty, or had failed to carry its burden” under the law.  “But without an individual . . .  this analysis cannot be conducted.”

This reasoning strikes us as hair-splitting in the extreme, but is not surprising considering that courts prefer to avoid deciding controversial issues if they can find a way to do so.  The Lexington-Fayetteville ordinance, by its terms, does not have protected classes.  Like the federal Civil Rights Act of 1964, it is a “forbidden grounds” measure, not a “protected class” measure.  Everybody, regardless of their race, is protected from race discrimination, for example.  There are no “protected classes” who have an exclusive claim to being protected against discrimination on any of the grounds mentioned in the ordinance.  Thus, VanMeter’s explanation is premised on a misconception of the ordinance.  But, as a decision by the Kentucky Supreme Court on a question of state law, it is final unless or until it is overruled by the Kentucky Supreme Court or rendered irrelevant by an amendment to the ordinance.  As it stands, however, it creates a large loophole in the coverage of the ordinance that was probably not intended by the local legislative bodies that enacted the measure.

Six members of the seven-member court sat in this case.  Four members of the court concurred in VanMeter’s opinion.  Justice David Buckingham wrote a separate concurring opinion.  Although he agreed with the court that GLSO lacked standing to file the charge, he wanted to express his view that the “Lexington Fayette Human Rights Commission went beyond its charge of preventing discrimination in public accommodation and instead attempted to compel Hands On to engage in expression with which it disagreed.”  He found support in the U.S. Supreme Court’s 1995 decision overruling the Massachusetts Supreme Judicial Court’s ruling that the organizers of the Boston Saint Patrick’s Day Parade case had violate the state’s human rights law by excluding a gay Irish group from marching in the parade, and a ruling earlier this year by the 8th Circuit court of Appeals reversing a district court decision concerning a videographer who sought a declaration that his business would not be required under Minnesota’s civil rights laws to produce videos of same-sex marriages.  In a lengthy opinion, Justice Buckingham cited numerous cases supporting the proposition that the government crosses an important individual freedom line when it seeks to compel speech.  “Compelling individuals to mouth support for view they find objectionable violates that most cardinal constitutional command,” he wrote, “and in most contexts, any such effort would be universally condemned.”  While reiterating his support for the ruling on “standing” by the majority of the court, he wrote, “if we were to reach the substantive issues, I would affirm the Fayette Circuit Court’s Opinion and Order,” which was premise in this First Amendment free speech argument.

Because the court’s decision is based entirely on its interpretation of the local ordinance and various Kentucky statutory provisions and avoids any ruling on a federal constitutional issue, it is not subject to appeal to the U.S. Supreme Court, which a straightforward affirmance of the Court of Appeals ruling on the merits would have been.

Most of the amicus briefs were filed by conservative and/or religious groups seeking affirmance of the Court of Appeals on the merits, and it is clear that the amici were determined to make this a major “culture wars” case in the battle against LGBTQ rights.  One amicus brief was filed on behalf of ten states that do not forbid sexual orientation or gender identity discrimination in their state civil rights laws.  There were also amicus briefs from progressive groups (including progressive religious groups) urging the court to reverse the Court of Appeals on the merits.  The only LGBT-specific organizational brief was filed by Lambda Legal.

Federal Court Dismisses Challenge to Maryland Law Against Conversion Therapy for Minors

Posted on: September 24th, 2019 by Art Leonard No Comments

On September 20, U.S. District Judge Deborah K. Chasanow of the federal district court in Maryland granted that state’s motion to dismiss a lawsuit brought by Liberty Counsel on behalf of a conversion therapy practitioner who was challenging the state’s recently enacted law that provides that “a mental health or child care practitioner may not engage in conversion therapy with an individual who is a minor.” The ban is enforceable  through the professional licensing process enforced by the Department of Health and Mental Hygiene.  The named defendants are Governor Larry Hogan and Attorney General Brian Frosh.  The case is Doyle v. Hogan, 2019 WL 4573382, 2019 U.S. Dist. LEXIS 160709 (D. Md., Sept. 20, 2019).

The plaintiff, Christopher Doyle, argued that the law violates his right to freedom of speech and free exercise of religion, seeking a preliminary injunction against the operation of the law while the litigation proceeds.  Having decided to dismiss the case, however, Judge Chasanow also denied the motion for preliminary relief as moot.  Liberty Counsel immediately announced an appeal to the U.S. Court of Appeals for the 4th Circuit, which has yet to rule on a constitutional challenge against a conversion therapy ban.

Several U.S. Circuit courts have rejected similar challenges.  The New Jersey statute, signed into law by Governor Chris Christie, was upheld by the 3rd Circuit Court of Appeals, which ruled that the state has the power to regulate “professional speech” as long as there was a rational basis for the regulation.  King v. Governor of New Jersey, 767 F. 3d 216 (3rd Cir. 2014). The California statute, signed into law by Governor Jerry Brown, was upheld by the 9th Circuit, which characterized it is a regulation of professional conduct with only an incidental effect on speech, and thus not subject to heightened scrutiny by the court.  Pickup v. Brown, 740 F.3d 1208 (9th Cir. 2015).  Liberty Counsel is also appealing a similar ruling by a federal court in Florida to the 11th Circuit.

The task of protecting statutory bans on conversion therapy against such constitutional challenges was complicated in June 2018 when U.S. Supreme Court Justice Clarence Thomas, writing for the Court in a 5-4 decision involving a California law imposing certain notice requirements on licensed and unlicensed pregnancy-related clinics, wrote disparagingly of the 3rd and 9th Circuit conversion therapy opinions.  National Institute of Family and Life Advocates v. Becerra, 138 S. Ct. 2361 (2018). The California statute required the clinics to post notices advising customers about pregnancy-related services, including family planning and abortion, that are available from the state, and also required non-licensed clinics to post notices stating that they were not licensed by the State of California.  The clinics protested that the statute imposed a content-based compelled speech obligation that violated their free speech rights and was subject to “strict scrutiny.” Such speech regulations rarely survive a strict scrutiny constitutional challenge.

The Supreme Court voted 5-4 to reverse a decision by the 9th Circuit, which had ruled that the notices constituted “professional speech” that was not subject to “strict scrutiny.”  In so doing, Justice Thomas rejected the idea that there is a separate category of “professional speech” that the government is free to regulate.  He asserted that “this Court has not recognized ‘professional speech’ as a separate category of speech.  Speech is not unprotected merely because it is uttered by ‘professionals.’”

“Some Court of Appeals have recognized ‘professional speech’ as a separate category of speech that is subject to different rules,” Thomas observed, citing among examples the 3rd Circuit and 9th Circuit conversion therapy cases.  “These courts define ‘professionals’ as individuals who provide personalized services to clients and who are subject to ‘a generally applicable licensing and regulatory regime.’ ‘Professional speech’ is then defined as any speech by these individuals that is based on ‘[their] expert knowledge and judgment,’ or that is ‘within the confines of [the] professional relationship,’” this time quoting from the 3rd Circuit and 9th Circuit opinions.  “So defined, these courts except professional speech from the rule that content-based regulations of speech are subject to strict scrutiny,” again citing the 3rd and 9th Circuit cases.

After reiterating that the Supreme Court has not recognized a category of “professional speech,” Thomas does concede that there are some circumstances where the court has applied “more deferential review” to “some laws that require professionals to disclose factual, noncontroversial information in their ‘commercial speech,” and that “States may regulate professional conduct, even though that conduct incidentally involves speech.”  But, the Court concluded, neither of those exceptions applied to the clinic notice statute.

As a result of Justice Thomas’s comments about the 3rd and 9th Circuit cases, when those opinions are examined on legal research databases such as Westlaw or Lexis, there is an editorial indication that they were “abrogated” by the Supreme Court.  Based on that characterization, Liberty Counsel sought to get the 3rd Circuit to “reopen” the New Jersey case, but it refused to do so, and the Supreme Court declined Liberty Counsel’s request to review that decision.

Liberty Counsel and other opponents of bans on conversion therapy have now run with this language from Justice Thomas’s opinion, trying to convince courts in new challenges to conversion therapy bans that when the practitioner claims that the therapy is provided solely through speech, it is subject to strict scrutiny and likely to be held unconstitutional.  The likelihood that a law will be held unconstitutional is a significant factor in whether a court will deny a motion to dismiss a legal challenge or to grant a preliminary injunction against its enforcement.

Liberty Counsel used this argument to attack conversion therapy ordinances passed by the city of Boca Raton and Palm Beach County, both in Florida, but U.S. District Judge Robin Rosenberg rejected the attempt in a ruling issued on February 13, holding that despite Justice Thomas’s comments, the ordinances were not subject to strict scrutiny and were unlikely to be found unconstitutional. She found that they were covered under the second category that Justice Thomas recognized as being subject to regulation: where the ordinance regulated conduct that had an incidental effect on speech.  Otto v. City of Boca Raton, 353 F. Supp. 3d 1237 (S.D. Fla. 2019).

Liberty Counsel argued against that interpretation in its more recent challenge to the Maryland law.  It argued in its brief, “The government cannot simply relabel the speech of health professionals as ‘conduct’ in order to restrain it with less scrutiny,” and that because Dr. Doyle “primarily uses speech to provide counseling to his minor clients, the act of counseling must be construed as speech for purposes of First Amendment review.”

The problem is drawing a line between speech and conduct, especially where the conduct consists “primarily” of speech.  Judge Chasanow noted that the 4th Circuit has explained, “When a professional asserts that the professional’s First Amendment rights ‘are at stake, the stringency of review slides ‘along a continuum’ from ‘public dialogue’ on one end to ‘regulation of professional conduct’ on the other,” continuing: “Because the state has a strong interest in supervising the ethics and competence of those professions to which it lends its imprimatur, this sliding-scale review applies to traditional occupations, such as medicine or accounting, which are subject to comprehensive state licensing, accreditation, or disciplinary schemes.  More generally, the doctrine may apply where ‘the speaker is providing personalized advice in a private setting to a paying client.’”

And, quoting particularly from the 3rd Circuit New Jersey decision, “Thus, Plaintiff’s free speech claim turns on ‘whether verbal communications become ‘conduct’ when they are used as a vehicle for mental health treatment.”

Judge Chasanow found that the Maryland statute “obviously regulates professionals,” and although it prohibits particular speech “in the process of conducting conversion therapy on minor clients,” it “does not prevent licensed therapists from expressing their views about conversion therapy to the public and to their [clients.]”  That is, they can talk about it, but they can’t do it!  “They remain free to discuss, endorse, criticize, or recommend conversion therapy to their minor clients.”  But, the statute is a regulation of treatment, not of the expression of opinions.  And that is where the conduct/speech line is drawn.

She found “unpersuasive” Liberty Counsel’s arguments that “conversion therapy cannot be characterized as conduct” by comparing it to aversive therapy, which goes beyond speech and clearly involves conduct, usually involving an attempt to condition the client’s sexual response by inducing pain or nausea at the thought of homosexuality.  She pointed out that “conduct is not confined merely to physical action.” The judge focused on the goal of the treatment, reasoning that if the client presents with a goal to change their sexual orientation, Dr. Doyle would “presumably adopt the goal of his client and provide therapeutic services that are inherently not expressive because the speech involved does not seek to communicate [Doyle’s] views.”

She found that under 4th Circuit precedents, the appropriate level of judicial review is “heightened scrutiny,” not “strict scrutiny,” and that the ordinance easily survives heightened scrutiny, because the government’s important interest in protection minors against harmful treatment comes into play, and the legislative record shows plenty of data on the harmful effects of conversion therapy practiced on minors.  She notes references to findings by the American Psychological Association Task Force, the American Psychiatric Association’s official statement on conversion therapy, a position paper from the American School Counselor Association, and articles from the American Academy of Child and Adolescent Psychiatry and the American Association of Sexuality Educations, Counselor, and Therapists.  Such a rich legislative record provides strong support to meet the test of showing that the state has an important interest that is substantially advanced by banning the practice of conversion therapy on minors.

Having reached this conclusion, the judge rejected Liberty Counsel’s argument that the ban was not the least restrictive way of achieving the legislative goal, or that it could be attacked as unduly vague.  It was clear to any conversion therapy practitioner what was being outlawed by the statute, she concluded.

Turning to the religious freedom argument, she found that the statute is “facially neutral” regarding religion.  It prohibits all licensed therapists from providing this therapy “without mention of or regard for their religion,” and Liberty Counsel’s Complaint “failed to provide facts indicating that the ‘object of the statute was to burden practices because of their religious motivation.’”  She concluded that Doyle’s “bare conclusion” that the law “displays hostility toward his religious convictions is not enough, acting alone, to state a claim” that the law violates his free exercise rights.  She also rejected the argument that this was not a generally applicable law because it was aimed only at licensed practitioners.  Like most of the laws that have been passed banning conversion therapy, the Maryland law does not apply to religious counselors who are not licensed health care practitioners.  Because the law is enacted as part of the regulation of the profession of health care, its application to those within the profession is logical and has nothing to do with religion.  As a result, the free exercise claim falls away under the Supreme Court’s long-standing precedent that there is no free exercise exemption from complying with religiously-neutral state laws.

Having dismissed the First Amendment claims, Judge Chasanow declined to address Liberty Counsel’s claims under the Maryland Constitution, since there is no independent basis under the court’s jurisdiction to decide questions of state law.

Joining the Office of the Maryland Attorney General in defending the statute were FreeState Justice, Maryland’s LGBT rights organization, with attorneys from the National Center for Lesbian Rights and Lambda Legal.  Also, the law firm of Gibson Dunn & Crutcher of Washington, D.C., submitted an amicus brief on behalf of The Trevor Project, which is concerned with bolstering the mental health of LGBT youth.

Senior District Judge Chasanow was appointed to the court by President Bill Clinton in 1993.

 

Catholic Foster Care Agency Seeks Supreme Court Review of Exclusion from Philadelphia Program

Posted on: July 24th, 2019 by Art Leonard No Comments

Catholic Social Services (CSS), a religious foster care agency operated by the Archdiocese of Philadelphia, has asked the U.S. Supreme Court to overrule a decision by the U.S. Court of Appeals for the 3rd Circuit, which on April 22 rejected CSS’s claim that it enjoys a constitutional religious freedom right to continue functioning as a foster care agency by contract with the City of Philadelphia while maintaining a policy that it will not provide its services to married same-sex couples seeking to be foster parents.  The decision below is Fulton v. City of Philadelphia, 922 F.3d 140 (3rd Cir. 2019).

CSS and several of its clients sued the City when the agency was told that if it would not drop its policy, it would be disqualified from certifying potential foster parents whom it deemed qualified to the Family Court for foster care placements and its contract with the City would not be renewed.  CSS insists that the City’s Fair Practices Ordinance, which prohibits discrimination because of sexual orientation by public accommodations, does not apply to it, and that it is entitled under the 1st Amendment’s Free Exercise Clause to maintain its religiously-based policy without forfeiting its longstanding role within the City’s foster care system.

The Petition filed with the Clerk of the Court on July 22 is one of a small stream of petitions the Court has received in the aftermath of its June 26, 2015, marriage equality decision, Obergefell v. Hodges, 135 S. Ct. 2584, in which the Court held that same-sex couples have a right to marry and have their marriages recognized by the states under the 14th Amendment’s Due Process and Equal Protection Clauses.   Dissenters in that 5-4 case predicted that the ruling would lead to clashes based on religious objections to same-sex marriage.  Most of those cases have involved small businesses that refuse to provide their goods or services for same-sex weddings, such as the Masterpiece Cakeshop decision from last spring, 138 S. Ct. 1719 (2018).

This new petition is one of many that may end up at the Court as a result of clashes between local governments that ban sexual orientation discrimination and government contractors who insist that they must discriminate against same-sex couples for religious reasons.  Catholic foster care and adoption services have actually closed down in several cities rather than agree to drop their policies against providing services to same-sex couples. CSS argues that it will suffer the same fate, since the services it provides – screening applicants through home studies, assisting in matching children with foster parents, and providing support financially and logistically to its foster families through funding provided by the City – can only legally be provided by an agency that has a contract with the City, and that even as its current contract plays out, the refusal of the City to accept any more of its referrals has resulted in its active roster of foster placements dropping by half in a short period of time, requiring laying off part of its staff.

Desperate to keep the program running, CSS went to federal district court seeking preliminary injunctive relief while the case is litigated, but it was turned down at every stage.  Last summer, when the 3rd Circuit denied a motion to overturn the district court’s denial of preliminary relief, CSS applied to the Supreme Court for “injunctive relief pending appeal,” which was denied on August 30, with the Court noting that Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch would have granted the Application.  See 139 S. Ct. 49 (2018). That at least three justices would have provided interim relief suggests that CSS’s Petition for review may be granted, since the Court grants review on the vote of four justices, and Brett Kavanaugh, who was not on the Court last August, might provide the fourth vote.

According to its Petition, CSS dates from 1917, when the City of Philadelphia was not even involved in screening and licensing foster parents.  CSS claims that from 1917 until the start of this lawsuit, it had never been approached by a same-sex couple seeking to be certified as prospective foster parents.  CSS argues that as there are thirty different agencies in Philadelphia with City contract to provide this service, same-sex couples seeking to be foster parents have numerous alternatives and if any were to approach CSS, they would be promptly referred to another agency.  CSS argues that referrals of applicants among agencies are a common and frequent practice, not a sign of discrimination.

CSS has three different arguments seeking to attract the Court’s attention.  One is that it was singled out due to official hostility to its religiously-motivated policy and that the City’s introduction of a requirement that foster agencies affirmatively agree to provide services to same-sex couples was inappropriately adopted specifically to target CSS.  Another is that the 3rd Circuit misapplied Supreme Court precedents to find that the City’s policy was a “neutral law of general application” under the 1990 Supreme Court precedent of Employment Division v. Smith, 494 U.S. 872 (1990), and thus not subject to serious constitutional challenge.  Finally, CSS argues, the Smith precedent has given rise to confusion and disagreement among the lower federal courts and should be reconsidered by the Supreme Court.

Opponents of same-sex marriage have been urging the Court to reconsider Smith, which was a controversial decision from the outset.  In Smith, the Supreme Court rejected a challenge to the Oregon Unemployment System’s refusal to provide benefits to an employee who was discharged for flunking a drug test. The employee, a native American, had used peyote in a religious ceremony, and claimed the denial violated his 1st Amendment rights.  The Court disagreed, in an opinion by Justice Antonin Scalia, holding that state laws that are neutral regarding religion and of general application could be enforced even though they incidentally burdened somebody’s religious practices.  Last year, Justice Neil Gorsuch’s opinion, concurring in part and dissenting in part in Masterpiece Cakeshop, suggested reconsideration of Smith, and since the Masterpiece ruling, other Petitions have asked the Court to reconsider Smith, including the “Sweetcakes by Melissa” wedding cake case from Oregon.  So far, the Court has not committed itself to such reconsideration.  In the Sweetcakes case, it vacated an Oregon appellate ruling against the recalcitrant baker and sent the case back to the state court for “further consideration” in light of the Masterpiece Cakeshop ruling, but said nothing about reconsidering Smith.

The CSS lawsuit arose when a local newspaper, the Philadelphia Inquirer, published an article reporting that CSS would not provide foster care services for same-sex couples.  The article sparked a City Council resolution calling for an investigation into CSS.  Then the Mayor asked the Commission on Human Relations (CHR), which enforces the City’s Fair Practices Ordinance (FPO), and the Department of Human Services (DHS), which contracts with foster care agencies, to investigate.  The head of DHS, reacting to the article’s report about religious objections to serving same-sex couples, did not investigate the policies of the many secular foster care agencies.  She contact religious agencies, and in the end, only CSS insisted that it could not provide services to same-sex couples, but would refer them to other agencies.

After correspondence back and forth and some face to face meetings between Department and CSS officials, DHS “cut off CSS’s foster care referrals,” which meant that “no new foster children could be placed with any foster parents certified by CSS.”  DHS wrote CSS that its practice violated the FPO, and that unless it changed its practice, its annual contract with the City would not be renewed. This meant that not only would it receive no referrals, but payments would be suspended upon expiration of the current contract, and CSS could no longer continue its foster care operation.  CSS and several women who had been certified by CSS as foster parents then filed suit seeking a preliminary injunction to keep the program going, which they were denied.

CSS’s Petition is artfully fashioned to persuade the Court that the 3rd Circuit’s approach in this case, while consistent with cases from the 9th Circuit, is out of sync with the approach of several other circuit courts in deciding whether a government policy is shielded from 1st Amendment attack under Smith.  Furthermore, it emphasizes the differing approaches of lower federal courts in determining how Smith applies to the cases before them.  The Supreme Court’s interest in taking a case crucially depends on persuading the Court that there is an urgent need to resolve lower court conflicts so that there is a unified approach throughout the country to the interpretation and application of constitutional rights.

The Petition names as Respondents the City of Philadelphia, DHS, CHR, and Support Center for Child Advocates and Philadelphia Family Pride, who were defendant-intervenors in the lower courts.  Once the Clerk has placed the Petition on the Court’s docket, the respondents have thirty days to file responding briefs, although respondents frequently request and receive extensions of time, especially over the summer when the Court is not in session.  Once all responses are in, the case will be distributed to the Justices’ chambers and placed on the agenda for a conference.  The Court’s first conference for the new Term will be on October 1.

Last summer, when the Court was considering Petitions on cases involving whether Title VII of the Civil Rights Act forbids sexual orientation or gender identity discrimination, the U.S. Solicitor General received numerous extensions of time to respond to the Petitions, so those cases were not actually conferenced until the middle of the Term and review was not granted until April 22.  Those cases will be argued on October 8, the second hearing date of the Court’s new Term.

The Petitioners are represented by attorneys from The Becket Fund for Religious Liberty, a conservative religiously-oriented litigation group that advocates for broad rights of free exercise of religion, and local Philadelphia attorneys Nicholas M. Centrella and Conrad O’Brien.  Their framing of this case is reflected in the headline of their press release announcing the Petition: “Philly foster mothers ask Supreme Court to protect foster kids.”

Municipal respondents are represented by Philadelphia’s City Law Department.  Attorneys from the ACLU represented the Intervenors, who were backing up the City’s position, in the lower courts.

The 3rd Circuit was flooded with amicus briefs from religious freedom groups (on both sides of the issues), separation of church and state groups, LGBT rights and civil liberties groups, and government officials.  One brief in support of CSS’s position was filed by numerous Republican members of Congress; another by attorney generals of several conservative states.  The wide range and number of amicus briefs filed in the 3rd Circuit suggests that the Supreme Court will be hearing from many of these groups as well, which may influence the Court to conclude that the matter is sufficiently important to justify Supreme Court consideration.

Washington State Supreme Court Unanimously Reaffirms Liability of Florist Who Refused Flowers for a Same-Sex Wedding

Posted on: June 7th, 2019 by Art Leonard No Comments

The nine-member Washington State Supreme Court refused on June 6 to back down from its earlier decision that Barronelle Stutzman and her business, Arlene’s Flowers, Inc., violated the state’s anti-discrimination and consumer protection laws on February 28, 2013, when she told Robert Ingersoll that she would not provide floral arrangements for his wedding to Curt Freed.  The court also ruled that Stutzman had no constitutional privilege to violate the state’s anti-discrimination law based on her religious beliefs.  State of Washington v. Arlene’s Flowers, Inc., 2019 Wash. LEXIS 333, 2019 WL 2382063.

The Washington Law Against Discrimination (WLAD) prohibits sexual orientation discrimination in public accommodations, and the people of Washington voted in a referendum in 2012 to overrule a 5-4 adverse decision by their state supreme court and allow same-sex couples to marry.

Stutzman quickly announced that she would attempt to appeal the new ruling to the U.S. Supreme Court, which for several months has been pondering whether to grant review in another “gay wedding cake” case, from Oregon. She rejects the court’s opinion that that the Washington courts had “resolved this dispute with tolerance,” according to Justice Sheryl Gordon McCloud’s opinion for the unanimous court.

The Washington court originally ruled on this case on February 16, 2017,see 167 Wash. 2d 804, but Alliance Defending Freedom (ADF), the anti-gay litigation group representing Arlene’s Flowers, petitioned the U.S. Supreme Court to review the case, arguing that the state was violating Stutzman’s First Amendment rights of free exercise of religion and freedom of speech.  That petition reached the Supreme Court while it was considering the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission, the “gay wedding cake” case.

The U.S. Supreme Court had been asked in Masterpiece to reverse rulings by the Colorado Court of Appeals and the Colorado Civil Rights Commission, which had ruled that baker Jack Phillips violated the state’s anti-discrimination law by refusing to make a wedding cake for a same-sex couple.  Phillips argued on appeal that his 1st Amendment rights to free exercise of religion and freedom of speech were unconstitutionally violated by the state proceedings.  The Supreme Court ruled, in an opinion by Justice Anthony Kennedy, that the Colorado Civil Rights Commission had not provided Phillips with a respectful, neutral forum to consider his religious freedom claim.  See 138 S. Ct. 1719 (2018).  The Court reversed the Colorado court and commission rulings on that basis, focusing particularly on comments made by Commission members during the public hearing in the case, as well as the fact that at the time Phillips rejected the business, Colorado did not allow same-sex weddings so Phillips could have thought that he was not obligated to provide a wedding cake for such an event.  The Court did not rule directly on Phillip’s constitutional claims of privilege to violate the anti-discrimination statute, although it observed that in the past it had not accepted religious free exercise defenses to discrimination charges.

The Masterpiece decision was announced on June 4, 2018.  On June 6, ADF filed a Supplementary Petition with the Supreme Court, arguing that the case should be sent back to the Washington Supreme Court for “reconsideration” in light of Masterpiece.  In various different lawsuits, ADF has been trying to “spin” Masterpiece Cakeshop as what it is not: a decision that businesses have a 1st Amendment right to refuse to provide goods or services for same-sex weddings.  In its Supplementary Petition to the Court, however, reacting to the Court’s Masterpiece opinion, ADF asserted that Stutzman, like Colorado baker Jack Phillips, had been subjected to a forum that was “hostile” to her religious beliefs.

The U.S. Supreme Court granted ADF’s request, vacating the Washington Supreme Court’s 2017 decision and sending the case back with instructions to “further consider” the case “in light” of Masterpiece Cakeshop. The Washington court took exactly a year from the date of ADF’s Supplementary Petition to produce a lengthy decision explaining why there was no reason to change its original decision.

The Washington court was flooded with amicus briefs, as the U.S. Supreme Court had been, as many saw this as the next major “culture wars” case around the issue of same-sex marriage and religious exemptions from anti-discrimination laws

After Stutzman told Ingersoll, a longtime customer of her business, she would not sell him flowers for his wedding, his fiancé, Freed, put up an indignant post on his Facebook page and the story went viral, quickly drawing the attention of the Attorney General’s office, which sent Stutzman a letter, asking for her to agree in writing not to discriminate against customers based on their sexual orientation.  She has argued throughout the case that she did not discriminate based on sexual orientation, as she had happily sold Ingersoll flowers in the past and would do so in the future, but not for a same-sex wedding due to her religious belief that marriage was only between a man and a woman.  When Stutzman refused to sign the statement requested by the letter, the Attorney General filed suit in Benton County Superior Court.  Several days later, Ingersoll and Freed filed their own lawsuit, represented by the ACLU of Washington, and the cases were consolidated by the court, which ruled against Stutzman on February 18, 2015.

Justice McCloud explained the Washington Supreme Court’s understanding of the holding of the U.S. Supreme Court in Masterpiece: “In Masterpiece Cakeshop, the Supreme Court held that the adjudicatory body tasked with deciding a particular case must remain neutral; that is, the adjudicatory body must ‘give full and fair consideration’ to the dispute before it and avoid animus toward religion.  Disputes like those presented in Masterpiece Cakeshop and Arlene’s Flowers ‘must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.’”

Under this standard, wrote McCloud, there was no basis for the Washington court to change its opinion.  “We have painstakingly reviewed the record for any sign of intolerance on behalf of this court or the Benton County Superior Court, the two adjudicatory bodies to consider this case,” she wrote.  “After this review, we are confident that the two courts gave full and fair consideration to this dispute and avoided animus toward religion.”

Because the Supreme Court had vacated the earlier decision, however, the court’s new opinion incorporates its entire analysis from the earlier decision.  In a footnote, Justice McCloud wrote, “The careful reader will notice that starting here, major portions of our original (now vacated) opinion are reproduced verbatim.”

However, the opinion also responds to arguments that ADF tried to make building on Masterpiece, attempting to persuade the court that Stutzman was sued because of hostility to her religious beliefs by the Attorney General.  The court refused to take the bait.  McCloud wrote, “Apparently realizing the limits of Masterpiece Cakeshop, appellants attempt to stretch its holding beyond recognition and to relitigate issues resolved in our first opinion and outside the scope of Masterpiece Cakeshop.  We reject this attempt and instead comply with the Supreme Court’s explicit mandate to ‘further consider’ our original judgment ‘in light of Masterpiece Cakeshop.’”

Consistent with that, the court denied motions by both ADF and the Attorney General’s office to supplement the record, finding that the additional materials being offered to the court were not relevant to the task it had been set by the Supreme Court.

ADF was trying to make something of an entirely unrelated incident that occurred while this case was pending, when it was reported that the owner of a café in Seattle had “expelled a group of Christian customers visiting his shop” but that despite publicity to the incident the Attorney General had not taken any action against the owner of the café.  ADF sought to draw an analogy to an incident Justice Kennedy relied upon in concluding that the Colorado Civil Rights Commission was hostile to religion.  The Commission had refused to proceed against several Colorado bakers who had rejected an order from a provocateur named William Jack, who sought to order cakes inscribed with anti-gay symbolism.  “The crux of appellants’ argument is that the attorney general sought to enforce the WLAD in the case before us but not in the incident at the coffee shop,” wrote McCloud, “revealing ‘hostility towards Mrs. Stutzman’s beliefs.’”

The Washington court agreed with Ingersoll and Freed, who argued that the attorney general’s response to the coffee shop incident was irrelevant.  That was a prosecutorial decision, not an adjudicatory decision.  “As discussed above,” wrote McCloud, ‘the Supreme Court in Masterpiece Cakeshop held that the adjudicatory body tasked with deciding a particular case must remain neutral. That Court was explicitly sensitive to the context in which the lack of neutrality occurred: during the adjudication by the adjudicatory body deciding the case.”  The Attorney General here was acting as attorney for a party in the case – the state of Washington – and not as an adjudicator.

“It would take a broad expansion of Masterpiece Cakeshop to apply its holding – that the adjudicatory body hearing a case must show religious neutrality – to a party.  That is especially true here, where the party supposedly exhibiting antireligious bias is Washington’s attorney general,” wrote McCloud.  “By arguing that Masterpiece Cakeshop’s holing about adjudicatory bodies applies to the attorney general’s enforcement decision, appellants essentially seek to revive their selective-enforcement claim, a claim that was rejected by the superior court, and abandoned on appeal.”

The court pointed out that prosecutorial discretion leaves it to the judgment of prosecutors deciding which cases to bring. “Courts are wary to question a prosecutor’s decision of which claims to pursue and thus generally ‘presume that prosecutors have properly discharged their official duties.’”  The court rejected ADF’s seeming argument that selective enforcement claims implicating free exercise of religion defenses should not be subjected to the same “demanding standard to which all other selective-enforcement claims are subject.”

The court also pointed out that because this is a consolidation of two cases, ADF’s argument is beside the point, since it has nothing to do with plaintiffs Ingersoll and Freed.  A “selective enforcement” claim has no relevance to a lawsuit brought by private individuals who are victims of discrimination.

Most of the court’s opinion, however, was devoted to restating the legal analysis from its 2017 decision, finding that the First Amendment and Washington state constitutional provisions did not provide a shield for Stutzman against the discrimination charges.  Interestingly, the Washington courts have found that their state constitution provides greater protection for free speech and free exercise of religion than the U.S. Supreme Court has found in the 1st Amendment, but even under those more demanding standards, the court rejected Stutzman’s state constitutional defenses.  The state has a compelling interest to prevent discrimination by businesses, reiterated the court.

“Discrimination based on same-sex marriage constitutes discrimination on the basis of sexual orientation,” McCloud concluded.  “We therefore hold that the conduct for which Stutzman was cited and fined in this case – refusing her commercially marketed wedding floral services to Ingersoll and Freed because theirs would be a same-sex wedding – constitutes sexual orientation discrimination under the WLAD.  We also hold that the WLAD may be enforced against Stutzman because it does not infringe any constitutional protection.  As applied in this case, the WLAD does not compel speech or association.”  And, even if the court assumed that application of the WLAD “substantially burdens Stutzman’s religious free exercise,” that did not violate the First Amendment or the analogous provision of the Washington constitution, “because it is a neutral, generally applicable law that serves our state government’s compelling interest in eradicating discrimination in public accommodations.”

Impatient Christians File Suit Against EEOC’s Interpretation of Title VII and Seek Exemption from Recognizing Same-Sex Marriages

Posted on: April 3rd, 2019 by Art Leonard No Comments

The U.S. Pastor Council (on behalf of itself and others similarly situated), and Braidwood Management, Inc., a business claiming to have religious objections concerning the employment of LGBTQ people (on behalf of itself and others similarly situated), have jointly filed suit in the U.S. District Court for the Northern District of Texas (Fort Worth Division), seeking a declaratory judgment that the Equal Employment Opportunity Commission’s interpretation of Title VII to protect LGBTQ people from employment discrimination violates the federal Religious Freedom Restoration Act and the First Amendment, and they seek to enjoin the federal government from enforcing these policies against any employer who objects to homosexual or transgender behavior on religious grounds.  U.S. Pastor Council & Braidwood Management Inc. v. Equal Employment Opportunity Commission, Case No. 4:18-cv-00824-O (U.S. Dist. Ct., N.D. Texas, filed March 29, 2019).  They seek class certification and nation-wide injunctive relief.  Other named defendants include EEOC Chair Victoria A. Lipnic and Commissioner Charlotte A. Burrows, Attorney General William P. Barr, and the United States of America.  (Lipnic and Burrows are the only currently serving EEOC commissioners, as Trump’s nominees to fill three vacancies were not confirmed in the last session of the Senate, and the Commission as a body lacks a quorum to act at present.)

The headline’s reference to “impatient Christians” points to the Supreme Court’s unexplained delay in deciding whether to grant writs of certiorari in three pending cases that pose the question whether Title VII can be interpreted, as it has been by the EEOC and some circuit courts of appeals, to prohibit employment discrimination because of an individual’s sexual orientation or gender identity.  If the Supreme Court finally takes these cases and decides them during its October 2019 Term, this lawsuit could be at least partially mooted.  But the complaint ranges more broadly, tempting the court (and ultimately the Supreme Court) to reconsider two of its constitutional precedents that are not beloved by the Court’s current conservative majority: Employment Division v. Smith and Obergefell v. Hodges.

The docket number of the case indicates that it has been assigned to District Judge Reed O’Connor, which means that it is highly predictable that the plaintiffs will get much of the relief they are seeking from the district court.  In earlier lawsuits, Judge O’Connor issued nationwide injunctions against the federal government’s enforcement of Obamacare and Title IX in gender identity cases, disagreeing that the term “discrimination because of sex” could be construed to extend to gender identity.  See Franciscan Alliance v. Burwell, 227 F.Supp.3d 660 (N.D. Tex. Dec. 31, 2016) (Obamacare); Texas v. United States, 201 F. Supp. 3d 810 (N.D. Tex. 2016) (Title IX).  Since the current political appointees leading the Justice Department probably agree with the plaintiff’s position on all or most of the claims raised in this complaint, one reasonably suspects that any serious defense can only be mounted by Intervenors, and the government would only appeal pro-plaintiff rulings by Judge O’Connor in order to get a rubber stamp approval from the 5th Circuit on the way to the Supreme Court. Trump has worked hard to cement a conservative majority on the 5th Circuit, having quickly filled five of the vacancies preserved for him by the Senate’s refusal to confirm Obama nominees to the circuit courts.  A new vacancy waits to be filled, and more elderly Republican appointees on the circuit (two active Reagan appointees who have been there more than thirty years) are likely to retire soon enough.

The complaint’s first count argues that the government has no compelling reason to enforce a prohibition against discrimination because of sexual orientation or gender identity against employers with religious objections, and thus that the EEOC as a federal agency should be found to be precluded from doing so under the Religious Freedom Restoration Act.  The second count argues that because Title VII exempts religious employers from its ban on religious discrimination, it is thereby not a law of “general applicability,” so Employment Division v. Smith, 494 U.S. 872 (1990), is “inapplicable” to the question whether imposing a non-discrimination obligation on employers who are subject to the statute (those with 15 or more employees) violates their constitutional Free Exercise rights under the 1st Amendment.  The complaint observes that the ministerial exemption to Title VII that the Supreme Court has found for religious institutions does not extend to businesses, and further does not extend to the non-ministerial employees of religious organizations, thus imposing a burden on both kinds of employers who are subject to Title VII’s ban on sex discrimination.  Furthermore, they argue that if the court disagrees with their characterization of Title VII and finds that Employment Division v. Smith would apply in their Free Exercise claim, that decision should be overruled (which, of course, the district court can’t do, but this lawsuit is obviously not intended to stop at the district court).  Justice Neil Gorsuch implied in his concurring opinion in Masterpiece Cakeshop last June that the Supreme Court should reconsider this precedent.

In terms of the practical impact of the EEOC’s position, the complaint says in its third count that Braidwood Management’s benefits administrator has amended its employee benefits plans to recognize same-sex marriages, complying with guidance on the EEOC’s website, and Braidwood wants to instruct the administrator to return to a traditional marriage definition, consistent with the employer’s religious beliefs.  Thus, part of the declaratory judgment plaintiffs seek would proclaim that employers with religious beliefs against same-sex marriage should be allowed to refuse to recognize them for employee benefits purposes.  In several counts, the complaint tempts the court to declare as illegitimate the Supreme Court’s Obergefell decision, and to excuse religious organizations and businesses from having to recognize same-sex marriages, except possibly in states where same-sex marriage became available through state legislation, unlike Texas, where it exists by compulsion of the federal courts (and certainly against the wishes of the state government).

In terms of standing issues, Braidwood points out that the EEOC has actively enforced its interpretation of Title VII by bringing enforcement actions and filing amicus briefs in support of LGBTQ plaintiffs against employers with religious objections, most prominently in the Harris Funeral Home case, in which the EEOC sued a business that had discharged a transgender employee because of the employer’s religious objections.  The funeral home prevailed in the district court on a RFRA defense, the trial judge finding that in the absence of RFRA the funeral home would have been found in violation of Title VII.  However, the 6th Circuit reversed in part, rejecting the district court’s RFRA analysis and finding a Title VII violation.  The funeral home’s petition for certiorari was filed in the Supreme Court last July, but that Court had made no announcement regarding a grant or denial at the time this complaint was filed on March 29 – impatient Christians, again.

The fourth count claims that the EEOC’s requirement that employers post a notice to employees announcing their protection under Title VII is unconstitutionally compelled speech.  “Employees who read this sign and see that Braidwood is categorically forbidden to engage in ‘sex’ discrimination will assume (incorrectly) that Braidwood is legally required to recognize same-sex marriage, extend spousal employment benefits to same-sex couples, and allow its employees into restrooms reserved for the opposite biological sex,” says the complaint, indicating that Braidwood’s proprietor “is not willing to have Braidwood propagate this message without sufficient clarification.”

The sixth count summons the Administrative Procedure Act to attack the EEOC’s issuance of guidance on its website concerning its interpretation of Title VII, claiming that this constitutes a “rule” that is subject to judicial review under that statute.  The complaint asks the court to “hold unlawful and set aside” the EEOC’s regulatory guidance, invoking Section 706 of the APA.  Braidwood Management also claims to speak in this count as representative of all businesses in the U.S. that “object to the constitutional reasoning in Obergefell, excluding employers in states where same-sex marriage was legalized through legislation.”

The complaint lists as plaintiffs’ counsel Charles W. Fillmore and H. Dustin Fillmore of Fort Worth (local counsel in the district court) and Jonathan F. Mitchell of Austin.  The heavy gun here is Mitchell, a former Scalia clerk and Texas Solicitor General who has been nominated by President Trump to be Chairman of the Administrative Conference of the United States (ACUS).  It seems ironic that Trump’s nominee is suing the federal government: the Justice Department and its head (in his official capacity) and the EEOC and its commissioners (in their official capacity), but despite naming the United States as a defendant, plaintiffs are not suing the president by name (in his official capacity, of course).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Posted on: January 29th, 2019 by Art Leonard 2 Comments

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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