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Federal Judge Voids Tampa Ban on Conversion Therapy

Posted on: October 18th, 2019 by Art Leonard No Comments

U.S. District Judge William F. Jung ruled on October 4 in Vazzo v. City of Tampa, 2019 U.S. Dist. LEXIS 172734, 2019 WL 4919302 (M.D. Fla.), that the state of Florida’s pervasive regulation of professional health care deprives the city of Tampa from the authority to impose sanctions on licensed health care workers who perform “conversion therapy” on minors.

Jung’s ruling was a startling departure from the way most courts have responded to challenges against laws cracking down on the charlatans who engage in this discredited practice.  Several federal courts, including some courts of appeals, have rejected challenges based on the 1st and 14th Amendments, but those cases mainly involved state laws.  Although the challengers in the Tampa case – Robert L. Vazzo, David Pickup, and Soli Deo Gloria International, Inc. – made those same constitutional arguments, which provided the basis for their case to be in federal court, Judge Jung resolved the case on a state law basis that appeared to be a mere make-weight in the original Complaint.

Tampa passed its ordinance in April 2017.  It bans “therapy” within the City by medical doctors and mental health professionals intended to assist minors to avoid being gay or transgender.  The ordinance uses the term “conversion therapy,” but the practice is also sometimes referred to as “sexual orientation change efforts” or SOCE.  The ordinance cites numerous professional studies discrediting SOCE and contending that it may be harmful to minors, and also cites decisions by the U.S. Courts of Appeals for the 3rd and 9th Circuits upholding New Jersey and California statutes making the performance of this “therapy” a violation of licensing standards that could subject the practitioners to penalties and possible loss of licensure.  A New Jersey state court has also condemned the practice under that state’s consumer fraud statute.

The Tampa City Council stated its intention to protect minors from being subjected to a potentially harmful practice, premised on its authority to exercise its police power for the public safety, health and welfare.  Enforcement was assigned to the same city employees who enforce other standards and codes.

Vazzo, a marriage and family therapist licensed in Florida, practices SOCE on minors, claiming that his treatment may help minors “reduce or eliminate same-sex sexual attractions, behaviors or identity,” and claiming that his therapy is rendered entirely in speech.  He also claimed that all clients initiate SOCE counseling by giving informed consent; a questionable assertion when they are minors who, under the law, are recognized as having only limited capacity to give legal consent to a variety of things.  As a practical matter, this normally involves parents who want to “cure” their children from being gay or trans and give consent to the SOCE practitioner on their children’s behalf.

Co-plaintiff David Pickup was the lead plaintiff in a case challenging California’s state law ban on SOCE, and claims in this case that he had intended to get Florida certification and treat patients in Tampa.  The other plaintiff is an organization that refers individuals, including minors, for SOCE treatment.

Jung invoked a doctrine called “implied preemption.”  When a state pervasively regulates a particular activity, it may be found to have “occupied the field” of regulating that activity, thus depriving local governments of doing the same, particularly if the local regulation may conflict in some way with the state regulation or interfere with the state’s ability effectively to regulate.  By contrast, the doctrine of “express preemption” applies to situations where the state constitution or a state law or regulation explicitly reserves sole authority over a particular subject to the state.  Thus, application of implied preemption requires the court to provide a justification for finding that the local government should not be allowed to regulate a particular activity, whereas “express preemption” relies on a clear statement by the legislature that its regulation of a field is exclusive.

Analyzing implied preemption in this case, Judge Jung wrote, “There is no grant of authority by the Florida legislature to municipalities to substantively regulate healthcare treatment and discipline.  The State, not localities, occupies this field. . .  Here, there is nothing local or unique to Tampa about SOCE that would suggest the statewide, uniform medical regulation regime should vary because of Tampa’s peculiarities, and should vary across the State, from town to town and from county to county. The matter legislated against – SOCE – is statewide, not Tampa-specific.  And, a uniform and statewide system of healthcare treatment and practitioner discipline already exists, for sound reasons.  Implied preemption is a disfavored remedy because cities have broad powers to address municipal concerns.  But substantive regulation of psychotherapy is a State, not a municipal concern.”

The judge also suggested that the Tampa Ordinance “encroaches upon” five state-mandated areas.

First, he found that Florida’s constitution protects a broad right of privacy against government intrusions, which “suggests that government should stay out of the therapy room.”

Second, he notes that Florida court cases recognize that “with very few exceptions, parents are responsible for selecting the manner of medical treatment received by their children,” and the ordinance interferes with the right of parents to select SOCE for their children.

Third, he points to the state’s statutory “Patient Bill of Rights,” which protects a patient’s right to select the course of treatment that he or she deems best.  He finds that “the Tampa Ordinance enters this area at odds with this portion of the Florida statutory scheme.”

Fourth, he notes a provision of the Florida law regulating health care which states, as “legislative intent,” that “citizens be able to make informed choices for any type of health care they deem to be an effective option for treating human disease, pain, injury, deformity, or other physical or mental condition,” and that “the health care practitioner may, in his or her discretion and without restriction, recommend any mode or treatment that is, in his or her judgment, in the best interest of the patience in accordance with the provisions of his or her license.”  He asserts that the Tampa Ordinance seeks to place a restriction where state law says there should be none.

Fifth, he asserts that the Tampa Ordinance interferes with the state’s statutory doctrine of informed consent.  Florida law allows health care workers to perform procedures with the informed consent of their patients, by protecting doctors against liability for performing procedures with a patient’s informed consent “so long as the substantial risks and hazards are fully disclosed and accepted.”  He finds that the Tampa Ordinance “simply ignores this well-known and broad Florida concept of informed consent,” subjecting health care practitioners to potential sanctions if they perform SOCE with the full informed consent of their patients.

In effect, he finds, if opponents of SOCE want to see the government restrict health care practitioners from engaging in this practice, they have to convince the medical boards that control the licensing practice that they should condemn SOCE as a violation of standards, or get the legislature to ban the practice.  “Tampa’s divergent standard for punishing errant mental health therapy is relevant in the preemption analysis because it creates a danger of conflict with an area pervasively regulated, for which the Legislature has stated a policy of statewide uniformity,” he concluded, noting particularly the detailed regulations and educational requirements for those seeking to hold the kind of licensing certification that Vazzo has earned.

Judge Jung, treading in controversial waters, goes on to challenge the competency of the Tampa City Council to set standards for medical practice.  “With due respect for the citizen legislators on the Tampa City Council, none are skilled in mental health issues,” he wrote, “nor are any of the City’s code enforcement personnel.  In contrast the Florida Department of Health, with its skilled adjudicatory bodies, is equipped to address this dynamic area of psychotherapy.”  Then he challenges the “certitude” of the City Council’s factual findings by cherry picking isolated statements from statements by the city’s expert witnesses in this case that might be used to impugn some of the conclusions about SOCE and its effects.  Asserting that “the field of gender expression is especially complex,” he suggests that it is best left to the state regulators.

Having decided the case entirely on preemption grounds, Judge Jung expressed no view regarding the constitutional arguments under the 1st and 14th Amendments.  Those arguments have been mainly rejected by the courts, although some uncertainty has been injecting into this field by comments made by Supreme Court Justice Clarence Thomas last year in an unrelated case, in which he castigated the concept of “professional speech” and cited with disdain the 3rd and 9th Circuit decisions mentioned above for having used that concept to analyze the 1st Amendment free speech issues.

Ironically, at the same time as Judge Jung was rendering his decision, rulings rejecting challenges to anti-conversion therapy laws passed by two other local Florida governments are on appeal before the 11th Circuit Court of Appeals.  The Florida legislature and state house, fully controlled by Republicans, are not going to address this issue, which is why Florida has been a hotbed of local legislative activity.  It will be interesting to see whether the preemption issue is raised by the 11th Circuit in considering the appeals in those cases, and whether the City of Tampa – which has an out lesbian mayor and a very political active LGBTQ community – will seek to appeal this ruling.

Vazzo and his co-plaintiffs are represented by lawyers from Liberty Counsel, an advocacy legal organization that seeks to deny liberty to LGBTQ people whenever possible.

Judge Jung, appointed by President Donald Trump, has been on the bench for barely a year.

 

 

9th Circuit Panel Orders Gender Confirmation Surgery for Transgender Inmate in Idaho

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

A three-judge panel of the San Francisco-based U.S. Court of Appeals for the 9th Circuit ruled on August 23 that the Idaho Department of Corrections violated the 8th Amendment rights of Adree Edmo, a transgender inmate, when it denied her gender confirmation surgery.  The court’s opinion, issued collectively by the three judges as “per curiam,” provides such an extensive discussion of the medical and legal issues that it could serve as a textbook for other courts.

The ruling is a particularly big deal because it is the first such wide-ranging appellate ruling in the nation’s largest circuit by population, as the 9th Circuit includes California, Oregon, Washington, Alaska, Hawaii, Arizona, Nevada, Idaho and Montana.  Other circuit courts are divided over whether transgender inmates may have a right to complete their transition surgically while incarcerated.

The three judges on the panel, Circuit Judges M. Margaret McKeown and Ronald M. Gould, and U.S. District Judge Robert S. Lasnik of the Western District of Washington, were all appointed to the court in the late 1990s by President Bill Clinton.

The court’s ruling affirmed a May 2019 order by U.S. District Judge B. Lynn Winmill, also a Clinton appointee, who issued the ruling after an extensive trial process with several expert witnesses and numerous amicus briefs.

The plaintiff, Adree Edmo, was designated male at birth but has viewed herself as female since age 5 or 6, according to the hearing record.  Edmo pled guilty in 2012 to a charge of sexual abuse of a 15-year-old boy at a house party.  At that time, Edmo was 21.  It was about that time that she resolved an internal struggle about gender identity and began living as a woman.  By the time of the trial court’s evidentiary hearing in this case, Edmo was 30, and due to be released from prison in 2021.

Edmo first learned the term “gender dysphoria” and what was involved in gender transition around the time of her incarceration.  Shortly after coming into the custody of the Idaho Department of Corrections, she was diagnosed with “gender identity disorder,” the term that was used in the prior edition of the Diagnostic and Statistical Manual (DSM), the “Bible” for the psychiatric profession.  The latest edition of DSM changes the terminology to “gender dysphoria,” as being a more accurate characterization in the consensus view of the profession.  The diagnosing doctor was Dr. Scott Eliason, employed by Corizon, Inc., the medical contractor for the Idaho prison system.  A psychologist employed by Corizon, Dr. Claudia Lake, confirmed the diagnosis.

Edmo has changed her legal name and obtained a new birth certificate designating her as “female” to affirm her gender identity.  She has consistently tried to present as female throughout her incarceration, even though this has resulted in disciplinary measures as she continues to be housed in a male prison.  There is no dispute among the parties to this case, which include Corizon and the  Idaho Corrections Department, that Edmo suffers from gender dysphoria, which causes her to feel “depressed,” “disgusting,” “tormented” and “hopeless,” and this has moved her twice to attempt self-castration.

Although hormone therapy has helped to ameliorate the effects of her gender dysphoria, it has not completely alleviated the condition, and much of her distress focuses on her male genitalia, the removal of which is her dedicated goal, as reflected in her castration attempts.   The expert testimony indicated that removal of the male genitalia would make it possible to reduce the level of her hormone therapy, as her body would no longer be producing the male hormone testosterone, and reduced hormone therapy would reduce side effects and be beneficial to her long-term health.

The main cause of dispute is that the Corizon doctors, under direction of the Idaho Corrections Department, have imposed standards going beyond those specified by the World Professional Association for Transgender Health (WPATH) for determining when an individual with gender dysphoria is eligible for surgery.  The state’s case here relies mainly on Dr. Eliason’s testimony and the standards he sought to impose.  Judge Winmill concluded that those standards failed in certain respects to conform to the medical consensus as represented by the WPATH standards and that, as to one of Eliason’s standards, his diagnosis fails to give adequate weight to Edmo’s self-castration attempts.

Experts testifying at the district court hearing included two doctors extremely experienced with treating gender dysphoria, both of whom are active as WPATH members, who offered testimony that convinced Winmill that gender confirmation surgery is necessary for Edmo.  Winmill issued an injunction after the hearing ordering the state to provide the surgical procedure for Edmo, but the injunction was stayed while the state appealed to the 9th Circuit on an expedited schedule.

The appellate panel rejected all of the state’s objections to Judge Winmill’s ruling.  Under the Supreme Court’s 8th Amendment jurisprudence, a prison system will be found to violate the 8th Amendment if it displays deliberate indifference to an inmate’s serious medical condition by failing to provide necessary treatment.  A large amount of judgment based on the facts of the individual case goes into determining whether the prison’s failure to provide a particular procedure to a particular inmate violates the Constitution, and some courts have upheld refusal to provide surgery when medical experts disagree about the appropriate treatment for a prisoner’s particular medical condition, finding that a disagreement among experts bars the conclusion that the prison is being deliberately indifferent to the inmate’s medical needs.  The state, citing its own experts, pushed for this conclusion, but the court identified the state’s experts as underqualified and their views as “outliers” from the professional consensus.

In backing up Judge Winmill’s conclusion, the 9th Circuit panel made clear that they were ruling based on the facts of this individual case, and not endorsing a general rule that transgender inmates are always entitled to surgery.  They found that the evidence shows that not all people who identify as transgender suffer from gender dysphoria, and that the degree of intensity of gender dysphoria can range from mild to severe.  Many transgender people do not desire surgery even though they have a gender dysphoria diagnosis, and sometimes other medical conditions cut against performing the surgery for health and safety reasons.

A major point of contention in this case is the specification in the WPATH standards that surgery should not be performed until the individual has experienced living consistent with their gender identity for at least a year.  Dr. Eliason’s interpretation of this requirement focused on living in a non-institutional setting for at least a year, considering the prison setting as “artificial” and not like the setting the inmate would encounter upon release from prison.  According to this view, the only inmates entitled to surgery would be those who had lived consistent with their gender identity for at least a year before they were incarcerated.  This would categorically rule out surgery for those who were first diagnosed with gender dysphoria after incarceration, such as Edmo, even though identified as female for many years before the crime for which she pled guilty.

The experts who testified on her behalf persuasively argued that it was possible for a transgender inmate to fulfill that requirement in prison, and pointed out that the WPATH standards state that the experiential year can take place while incarcerated.  Also, the court noted that Edmo’s persistent attempts to present as female, even in the face of hostility from corrections personnel, since 2012 would more than fulfill this requirement, since there was medical documentation that she has been presented as female since 2012.

This new ruling may set up the issue for Supreme Court review, because it sharply conflicts with a ruling earlier this year by the U.S. Court of Appeals for the 5th Circuit, Gibson v. Collier, which ruled that gender confirmation surgery is never required under 8th Amendment standards.  The Gibson ruling, in turn, relied heavily on an earlier ruling by the U.S. Court of Appeals for the 1st Circuit, which held that the Massachusetts prison system did not have to provide surgery for Michelle Kosilek, a transgender inmate who had been sentenced to life without parole upon conviction of murdering her wife while presenting as male.  Kosilek went through years of litigation just to get hormone therapy, before then litigating for years for surgery. The 1st Circuit accepted the state’s testimony that hormone therapy was sufficient in her case and that in light of the nature of her offense, there would be enormous security problems in the prison system if she were to have surgery and then be transferred to a female prison.

The 4th Circuit has also ruled that a categorical rule against providing surgery for transgender inmates is unconstitutional, but that case did not involve an actual order that a prison system provide the surgery to a particular inmate.  This new 9th Circuit ruling sharpens the split with the 5th and 1st Circuits, raising the odds that a petition to the Supreme Court might be granted.  So far, the only Supreme Court ruling on the merits in a transgender case dates back several decades, when the Court ruled in a case involving a transgender inmate who was severely assaulted in prison that prison officials might be held to violate the 8th Amendment by failing to protect transgender inmates from serious injury while incarcerated.

In the course of its ruling, the court determined that Corizon, the health care contractor for the Idaho prisons, was not liable under the 8th Amendment.  Liability was focused on the Idaho Corrections Department itself and Dr. Eliason.

The court emphasized the urgency of providing surgery to Edmo, clearly signaling that it would not be receptive to requests for delay pending further appeal by the state.  As a practical matter, if the state cannot obtain an emergency stay, the surgery will go forward unless Idaho decides to do what California did in an earlier case where the 9th Circuit had refused to stay a district court’s order pending appeal: accelerate the inmate’s parole date to avoid having to provide the surgery!  Anticipating that this kind of ruling might come from the 9th Circuit in that earlier case, California revised its rules to drop its categorical ban on providing gender confirmation surgery to inmates, and has already provided the procedure to one inmate, the first known instance in which a state has actually provided the surgery.

Edmo is represented by a team of attorneys from California and Idaho law firms as well as the National Center for Lesbian Rights.  Attorneys from a wide variety of civil rights organizations represented the various amicus parties.  The struggle to obtain this decision and opinion was a very large team effort, resulting in an array of briefs that can be usefully deployed in future litigation in other circuits.

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.”

Obscure Brooklyn Appellate Ruling Protects Transgender People from Discrimination Without Saying So

Posted on: June 14th, 2018 by Art Leonard No Comments

Talk about “hiding the ball!” On June 6, a unanimous four-judge panel of the New York Appellate Division, 2nd Department, based in Brooklyn, confirmed an Order by the State Division of Human Rights (SDHR), which had adopted a decision by an agency administrative law judge (ALJ) ruling that a Port Jervis employer violated the human rights law when it discharged a transgender employee.

But nobody reading the court’s short memorandum opinion, or the short agency opinion and order, would have any idea that the case involved a gender identity discrimination claim. Surprisingly, given the novelty of the legal issues involved, only the administrative law judge’s opinion, an internal agency document, communicates what the case is actually about.

The case is Matter of Advanced Recovery, Inc. v. Fuller, 2018 N.Y. Slip Op 03974, 2018 N.Y. App. Div. LEXIS 3969, 2018 WL 2709861 (N.Y. App. Div., 2nd Dept., June 6, 2018).

Erin Fuller, a transgender woman, was fired by Mark Rea, the owner and chief executive of Advanced Recovery, Inc., the day Fuller presented a supervisor with a copy of a court order authorizing her change of name from Edward to Erin and the supervisor passed the document to Rea. Rea called Fuller into his office and, according to Fuller, said in the presence of the supervisor, “Now I have a problem with your condition.  I have to let you go.”

Rea and other company officials had been aware for some time that Fuller was transitioning, since she had presented them with a letter from her doctor in 2009 explaining her gender dysphoria diagnosis and how she would be transitioning, and on at least one occasion Rea had reacted adversely to Fuller’s mode of dress, but it wasn’t until he was presented with the legal name change that Rea apparently decided that he had enough and no longer wanted Fuller, a good worker who had been with the company more than two years.

When Fuller went back later to pick up her final paycheck, a supervisor told her that “he felt bad, but your job would be waiting for you as long as you came in wearing normal clothes.”

Attempting to escape possible liability, Rea and the company’s lawyer later came up with a termination letter that cited other reasons for terminating Fuller and said nothing about her name change, mode of dress, or gender identity, but they never sent her that letter, which first surfaced when it was offered as evidence at the SDHR law judge’s hearing on Fuller’s discrimination claim.

The discharge took place on August 4, 2010, several years before Governor Andrew Cuomo directed the SDHR to adopt a policy under which gender identity discrimination claims would be deemed to come within the coverage of the state’s ban on sex discrimination.

Fuller filed her complaint with SDHR on October 13, 2010. On the complaint form, she checked the boxes for “sex” and “disability” as the unlawful grounds for her termination.  After the company was notified of the complaint, it apparently prompted local police to arrest Fuller for altering a medical prescription, a spurious charge based on her changing the pronouns on the note written by a doctor on a prescription form after she missed a few days of work due to hospital treatment.  At the time, she didn’t think of amending her discrimination charge to allege retaliation, unfortunately, waiting until the hearing to raise the issue, by which time the judge had to reject her motion because she waited too long to assert the retaliation claim.

The agency concluded, after investigation, that it had jurisdiction over the discharge claim and set the case for a public hearing before an ALJ. At the hearing, Fuller was represented by attorneys Stephen Bergstein and Helen Ullrich, who persuaded the judge that Fuller had a valid claim and that the reasons given by the employer for firing her were pretexts for discrimination.  The same lawyers represented Fuller when the company appealed the judge’s ruling to the Appellate Division.

Relying on a scattering of trial court decisions holding that transgender people are protected from discrimination under the New York Human Rights Law, ALJ Robert M. Vespoli concluded that Fuller “states a claim pursuant to New York State’s Human Rights Law on the ground that the word ‘sex’ in the statute covers transsexuals.”

“Complainant also has a disability,” wrote Vespoli, “as that term is defined in the Human Rights Law.” The New York Human Rights Law’s definition of “disability” is broader and more general than the federal definition in the Americans with Disabilities Act, and New  York law does not have the explicit exclusion of coverage for people with “gender identity disorders” that is in the federal law.  Under New York’s law, a disability is “a physical, mental or medical impairment resulting from anatomical, physiological, genetic or neurological conditions which prevents the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques.”  The statute provides that a disability may also be a “record of such impairment or the perception of such impairment.”

“During the relevant time period,” wrote Vespoli, “Complainant was diagnosed with gender dysphoria. This condition falls within the broad definition of disability recognized under the Human Rights Law,” citing a 2011 decision by the agency to recognize its jurisdiction in a transgender discrimination case. The employer could not claim ignorance about Fuller’s transition, because in 2009 she had presented the company with her doctor’s letter explaining the situation, after which she began to dress and groom differently.

In his opinion dated February 20, 2015, Judge Vespoli rejected the employer’s evidence of other reasons for the discharge, finding that the proffered letter was a document created after the discharge for the purpose of litigation, that it had never been delivered to Fuller, and that the reasons it offered were pretexts for discrimination. The judge recommended awarding Fuller $14,560.00 in back pay and $30,000.00 for mental anguish caused by the discrimination.  He also recommended imposing a civil penalty on the company of $20,000.00.

The company filed objections to Vespoli’s recommendations with the Commission, but did not specifically object to Vespoli’s finding that Fuller had a disability or that the agency had jurisdiction over this case on grounds of sex and disability. The Commission’s Notice and Final Order of April 1, 2015, overruling without discussing the company’s evidentiary objections and adopting the judge’s recommendations and findings, said nothing about the details of the case, beyond noting that Fuller had complained of discrimination because of sex and disability.

The company’s appeal to the court again did not explicitly contest the ruling that the statute covers the case, instead urging the court to find that the ruling was not supported by substantial evidence of discrimination. Perhaps because the company’s appeal did not raise the question whether the Human Rights Law bans discrimination because of gender identity, the Appellate Division’s ruling also  did not  mention that the complainant is a transgender woman, and did not discuss the question whether this kind of case is covered under the disability provision.  Rather, the court’s opinion recites that the complainant alleged “that the petitioners discriminated against her on the basis of sex and disability,” and that the agency had ruled in her favor.  “Here there is substantial evidence in the record to support the SDHR’s determination that the complainant established a prima facie case of discrimination, and that the petitioners’ proffered reasons for terminating the complainant’s employment were a pretext for unlawful discrimination.  The petitioner’s remaining contentions are either not properly before this Court or without merit.”

Of course, Fuller’s brief in response to the appeal would have mentioned this issue, and SDHR, which cross-petitioned for enforcement of its Order, mentioned the issue as well.

The court wrote that there is “substantial evidence in the record” to support the agency’s ruling, so the court presumably looked at the record, including the ALJ’s opinion, and was aware that this was a gender identity discrimination claim.  The appellate panel surely knew that this was an important issue in the case.

Cursory research in published New York court opinions would show that there is no prior appellate ruling in New York finding that a gender identity claim can be asserted under the Human Rights Law’s prohibited grounds of “sex” and “disability.” The court took its time on this case, waiting until June 6, 2018, to issue a ruling upholding an administrative decision that was issued on April 1, 2015.  Despite taking all this time, the court produced an opinion that never mentions these details, that provides no discussion of the ALJ’s analysis of the jurisdictional issue, and that does not expressly state agreement with the trial court ruling that Judge Vespoli specifically cited in support of his conclusions.

This may be the first case in which a New York appellate court has affirmed a ruling holding that an employer violated the state’s Human Rights Law by discriminating against an employee because of her gender identity, but you wouldn’t know it by reading the court’s opinion. While the court’s failure to mention the doctrinal significance of its ruling may be explainable because the employer did not raise the issue on its appeal, it’s omission nonetheless renders the decision basically useless as an appellate precedent.

One can fairly criticize the court for failing to play its proper role in a system of judicial precedent to produce a decision that can be referred to by later courts. The judges whose names appear on this uninformative opinion are Justices Mark C. Dillon, Ruth C. Balkin, Robert J. Miller, and Hector D. LaSalle.

Governor Cuomo’s directive, issued while this case was pending before the Appellate Division, actually reinforced existing practice at the State Division of Human Rights, as the earlier opinions cited in Judge Vespoli’s opinion show, but in the absence of an explicit appellate ruling, enactment of the Gender Identity Non-Discrimination Act remains an important goal and its recent defeat in a Senate committee after renewed passage by the Assembly is more than merely a symbolic setback for the community.

A legal team of Caroline J. Downey, Toni Ann Hollifield and Michael K. Swirsky represented SDHR before the Appellate Division, which had cross-petitioned for enforcement of its decision. Port Jervis lawyer James J. Herkenham represented the company, and Stephen Bergstein of Bergstein & Ullrich presented Fuller’s response to the appeal.

 

 

 

 

 

 

Out Gay Federal Judge Rejects Anonymity for Genderqueer Trans-Masculine Plaintiff

Posted on: May 7th, 2018 by Art Leonard No Comments

 

U.S. District Judge J. Paul Oetken, himself the first out gay man to be appointed a federal trial judge, has granted a motion by the defendants in an employment discrimination case to lift an order he had previously issued allowing the plaintiff, a “genderqueer and transmasculine” individual, to proceed anonymously as “Jamie Doe” in a discrimination lawsuit against their former employer, Fedcap Rehabilitation Services, and two of Fedcap’s supervisors. Judge Oetken gave the plaintiff 14 days from the April 27 ruling on FedCap’s motion to decide whether they intend to proceed with this suit using their real name.  Doe v. Fedcap Rehabilitation Services, Inc., 2018 WL 2021588, 2018 U.S. Dist. LEXIS 71174 (S.D.N.Y., April 27, 2018).

The plaintiff uses “preferred pronouns of ‘they,’ ‘their,’ and ‘theirs,” wrote the judge. “Doe” alleges that “the Defendants discriminated against Doe based on Plaintiff’s disability (breast cancer, depression, anxiety, and post-traumatic stress disorder), sexual orientation (queer), and gender (gender non-conformity/genderqueer/trans-masculine). Plaintiff also alleges that Defendants retaliated against Plaintiff for exercising their rights under the Family Medical Leave Act.  Plaintiff has since left Fedcap and found new employment.”  Upon filing the lawsuit, Doe had moved to proceed under a pseudonym. The court granted the motion without prejudice to the Defendants’ right to seek lifting of the order, which they have now done.

The starting point for the court is Rule 10(a) of the Federal Rules of Civil Procedure, which provides that “all the parties” be named in the title of a Complaint. The 2nd Circuit, which has appellate jurisdiction over cases filed in the Southern District of New York, has ruled that this requirement “serves the vital purpose of facilitating public scrutiny of judicial proceedings and therefore cannot be set aside lightly.”  That court has commented, “When determining whether a plaintiff may be allowed to maintain an action under a pseudonym, the plaintiff’s interest in anonymity must be balanced against both the public interest in disclosure and any prejudice to the defendant.”  The 2nd Circuit has identified a non-exclusive list of ten different factors that courts might consider in conducting such a balancing test.

The plaintiff identified four harms if their name is revealed in this litigation. Plaintiff says their trans-masculinity is an “intimate detail” that they don’t want to disclose through the public record; that “outing them” as trans-masculine would compound the trauma they have already suffered from the defendant’s discrimination; that “genderqueer individuals suffer disproportionately from discrimination” and “outing” them in this way would place them “at further risk of discrimination by employees at their new job,” and finally that, as a parent of school-age children, plaintiff is concerned that disclosing their identity may expose their children to bullying.”

The defendants identified three types of prejudice to them if plaintiff is allowed to proceed anonymously. First, the “non-trivial cost of sealing or redacting court filings;” second, that “anonymity might allow Plaintiff to make accusations that they would not have made if their identity were publicly known;” and third, “Defendants contend that anonymity creates an imbalance when it comes to settlement negotiations.”  The defendants, who are not anonymous, may feel public pressure to settle the case in order to avoid bad publicity, while an anonymous plaintiff might “hold out for a larger settlement because they face no such reputational risk.”

Judge Oetken concluded that the case “presents no particularly strong public interest in revealing Plaintiff’s identity beyond the ‘universal public interest in access to the identities of litigants,’” which he remarks is “not trivial.” But the public interest would not be “especially harmed if Plaintiff proceeded pseudonymously.”

However, wrote the judge, “The key issue here is the extent to which Plaintiff has already revealed their gender and sexual orientation to the general public. Defendants point to Plaintiff’s voluntary participation in a news story for a major news outlet.  In the story, Plaintiff used their real name, identified as genderqueer, and revealed other details about their gender non-conformity.  The article also featured a photograph of Plaintiff, and the picture specifically illustrated Plaintiff’s non-conformance with gender norms.”  Thus, the defendants argued, Doe had already voluntarily disclosed “the sensitive issues they seek to keep secret in this case.”

Doe disagrees, saying they have revealed their sexual orientation but not their gender identity, particularly their identity as “trans-masculine,” which would be disclosed if they have to proceed under their real name in this lawsuit. But this argument did not persuade Judge Oetken, who wrote, “But while that is true, the news story still shows that Plaintiff was comfortable with putting their gender-non-conformity in the public eye.  The Court is mindful that coming out is a delicate process, and that LGBTQ individuals may feel comfortable disclosing one aspect of their identity but uncomfortable disclosing another.  Nevertheless, Plaintiff’s very public coming out as genderqueer undermines their arguments about the harm that would be caused by disclosure of their trans-masculinity.”

The court concluded that the issue was “whether the additional disclosure of Plaintiff’s identity as trans-masculine would so harm Plaintiff as to outweigh the significant prejudice to Defendants and the public interest in access to the identities of the litigants. Plaintiff has not met that significant burden.”  Oetken suggests that Plaintiff wants “what most employment-discrimination plaintiffs would like: to sue their former employer without future employers knowing about it,” but that is not how the civil litigation system is set up.  “Defendants – including two individuals – stand publicly accused of discrimination and harassment, including detailed allegations of misconduct.  Defendants do not have the option of proceeding pseudonymously,” commented Oetken. “Allowing Plaintiff to proceed anonymously would put Defendants at a genuine disadvantage, particularly when it comes to settlement leverage.  Courts allow such an imbalance only in unique circumstances, and Plaintiff has not shown that this is one of those special cases.”

While acknowledging that the disclosure of Doe’s trans-masculinity “would be difficult and uncomfortable,” wrote the judge, “this alone is not enough to demonstrate the exceptional circumstances required to proceed pseudonomously, especially in light of Plaintiff’s public identification as genderqueer.”

During the early years of the AIDS epidemic, many federal courts granted motions for plaintiffs suing for AIDS-related discrimination to proceed as John Doe or Jane Doe, accepting the argument that requiring them to sue under their own names would have compounded the discrimination they had suffered, especially in light of the media interest in reporting about legal issues stemming from the epidemic. Today, when there is considerable litigation by transgender individuals, including high school students seeking appropriate restroom access, it is not unusual to find that the court will refer to plaintiffs by their initials, even though the plaintiffs — represented by public interest law firms — may have revealed their names and posed for photos to publicize their cases.  One suspects that “Jaime Doe” would have been allowed to proceed anonymously had they not already appeared under their name in news stories.

Doe is represented by Brittany Alexandra Stevens of Phillips & Associates PLLC, and Marjorie Mesidor of Phillips & Phillips PLLC. Attorneys from the law firm of Epstein, Becker & Green, P.C., represent the defendants.

Oregon Federal Court Refuses to Dismiss Title VII Retaliation Claim by Lesbian Employee

Posted on: August 25th, 2014 by Art Leonard No Comments

U.S. District Judge Michael McShane ruled on August 21 that a lesbian former employee could sue a hospital under Title VII of the federal Civil Rights Act for 1964 for retaliatory discharge, even though the complaints she claims to have made before her discharge concerned sexual orientation discrimination.  Bennefield v. Mid-Valley Healthcare, 2014 U.S. Dist. LEXIS 116554 (D. Or.).  Title VII outlaws discrimination because of sex, but federal courts have generally held that this does not include sexual orientation discrimination. While finding that the plaintiff had not stated valid Title VII claims of discrimination and retaliation because of religion, and noting that the plaintiff had withdrawn her sexual orientation discrimination claim under Title VII, McShane’s ruling on the retaliation claim preserved the court’s federal question jurisdiction, which also extends to supplementary claims under the Oregon Whistleblower statute and the state’s human rights law, which does forbid sexual orientation discrimination.

The plaintiff, Stephanie Bennefield, began working at Mid-Valley on May 2, 2011.  During her probationary period, she came out to many co-workers as a lesbian.  Bennefield alleges that one co-worker created a hostile work environment for Bennefield after learning that she was a lesbian, including referring to her as a “disgusting lesbian” and a “stupid lesbian” and becoming uncooperative in their work, including provoking Bennefield to walk out of the operating room in disgust due to her refusal to cooperate.  Bennefield claims to have made numerous informal complaints to supervisors, but it was after she made a formal complaint to the Human Resources Department that she was notified of her discharge.  One comment by this hostile employee referring to religion was the basis for Bennefield’s claim of religious discrimination, which Judge McShane did not find persuasive.

Bowing to the fact that federal courts generally do not interpret Title VII’s sex discrimination ban to extend to sexual orientation discrimination, Bennefield agreed to dismissal of her Title VII sexual orientation discrimination claim.  Ultimately, the court’s continued jurisdiction over her case turned on whether her Title VII retaliation claim was valid.  The Hospital contended that her supervisor had decided to discharge her before she filed her formal complaint, and the supervisors disavowed having received any informal complaints from Bennefield concerning the conduct of this co-worker, but those are factual disputes to be resolved at trial if Bennefield has stated a cause of action sufficient to survive the hospital’s summary judgment motion.  The sticking point was in deciding whether Title VII’s retaliation provision extends to dismissal for complaining about sexual orientation discrimination.

The statute, by its terms, prohibits an employer from retaliating against an employee “because he has opposed any practice made an unlawful practice by this subchapter.”  42 USC sec. 2000e-3(a).  On its face, this would suggest that complaints about discriminatory conduct that is not itself forbidden by Title VII could not provide the foundation for a Title VII retaliation claim.  But Judge McShane noted that courts – and particularly the 9th Circuit, whose rulings are precedential for the district court in Oregon – had been willing to extend the protection of this provision to employees who believed in good faith that they were complaining about conduct that violates Title VII.  The question would be whether the plaintiff held a “reasonable belief” to that effect.

“Defendants… appear to conclude that mistakes of law cannot support a Title VII retaliation claim,” he wrote.  “I think that argument goes too far.  An employee may bring a retaliation claim even if the employee makes a mistake of law in thinking that the employer engaged in prohibited conduct,” citing Moyo v. Gomez, 40 F.3d 982 (9th Cir. 1994).  “Whether the error is one of fact or law is irrelevant, so long as the mistake is made in good faith,” he continued, citing Jurado v. Eleven-Fifty Corp., 813 F.2d 1406 (9th Cir. 1987).  “Title VII is construed broadly, and ‘this directive applies to the reasonableness of a plaintiff’s belief that a violation occurred, as well as to other matters.’  Although the reasonableness prong is an objective standard, courts must take into account ‘the limited knowledge possessed by most Title VII plaintiffs about the factual and legal bases of their claims.’”

Judge McShane does not mention, but could well have done, that public opinion polls show that a majority of the public incorrectly believes that anti-gay employment discrimination is illegal under Title VII, even though most federal courts construe Title VII otherwise and most states have not banned sexual orientation discrimination in employment.  This suggests that many employees – especially those whose job does not require them to keep up with legal issues – assume that anti-gay discrimination is unlawful, and that they may expect protection against retaliation if they complain to a supervisor about such discrimination.  The situation is complicated in a state like Oregon, where the state forbids sexual orientation discrimination and employees may presume that they are protected so long as their complaint concerns conduct that is unlawful, regardless whether the anti-discrimination law in question is state law or federal law.  Thus, Bennefield was complaining about unlawful discrimination, but it was not discrimination made expressly unlawful by Title VII.

“That discrimination based on one’s sexual orientation turned out to not be prohibited under Title VII does not make Bennefield’s belief objectively unreasonable,” wrote McShane.  In making this conclusion, I take into account ‘the limited knowledge possessed by most Title VII plaintiffs about the factual and legal bases of their claims,’” again quoting from a 9th Circuit opinion.  McShane also rejected the defendant’s argument that Bennefield could not demonstrate that her discharge was due to a complaint that she filed after her supervisor had already decided to discharge, because Bennefield had alleged numerous informal complaints predating that decision.  He also noted that Bennefield’s pleadings contradict the employer’s contentions about her deficiencies as an employee, creating a material fact issue that it would be improper to resolve on summary judgment.  “Viewed in the light most favorable to Bennefield,” he concluded on this point, “she has met her burden of demonstrating defendants’ proffered reasons for firing her were pretextual.”

Bennefield is represented by Carl Lee Post, Cynthia J. Gaddis and Daniel J. Snyder of the Law Offices of Daniel Snyder in Portland, Oregon.  Judge McShane is the first openly-gay person to serve as a U.S. District Judge in the District of Oregon, and recently rendered the ruling holding Oregon’s ban on same-sex marriage unconstitutional.  Because the state decided not to appeal his ruling, Oregon recently became a marriage equality jurisdiction.

The Colorado Wedding Cake Case

Posted on: December 8th, 2013 by Art Leonard No Comments

A Colorado Administrative Law Judge ruled on December 6, 2013, that a bakery had violated the state’s public accommodations law when its owner refused to sell a wedding cake to a gay male couple on July 19, 2012.

Colorado does not have same-sex marriage, and only enacted a civil union law open to same-sex couples early in 2013.  Back in 2012, however, Coloradans Charlie Craig and David Mullins planned to get married in Massachusetts and then have a big celebration event for family and friends back home.  Accompanied by Charlie’s mom, they went to Masterpiece Cakeshop, which sells wedding cakes, and sat down with the proprietor, Jack Phillips, at the “cake consulting table.”  According to the factual findings in the opinion by ALJ Robert N. Spencer, “They introduced themselves as ‘David’ and ‘Charlie’ and said that they wanted a wedding cake for ‘our wedding.'”  Phillips immediately said no, he doesn’t make wedding cakes for same-sex weddings.  “I’ll make you birthday cakes,” he said, “shower cakes, sell you cookies and brownies, I just don’t make cakes for same-sex weddings.”  Without any further discussion, David and Charlie and Charlie’s mom got up and left, went to another bakery, and make their cake arrangements without incident.  The next day, Charlie’s mom called Phillips, who told her that he refused to make a wedding cake for David and Charlie because of his religious beliefs and because Colorado does not recognize same-sex marriages.

Although Charlie and David got their wedding cake, they felt humiliated by their experience with Phillips and decided to file a discrimination complaint to establish that his actions were unlawful.  The Civil Rights Commission sided with Charlie and David, ruling that Phillips violated their statutory rights.  When Phillips rejected that ruling, the case was referred for trial before an administrative judge.   As an administrative judge, Spencer does not have authority to declare statutes unconstitutional, but he does have authority to determine whether the application of a statute in a particular case violates the constitutional rights of the defendant.

Judge Spencer found, based on Phillips’ testimony, that he is a practicing Christian who believes that “the Bible is the inspired word of God, that its accounts are literally true, and that its commands are binding on him.”  He finds in the story of Adam and Eve and in a passage from Mark 10:6-9 (NIV) that only different-sex couples can marry.  “Phillips also believes,” wrote Spencer, “that the Bible commands him to avoid doing anything that would displease God, and not to encourage sin in any way.  Phillips believes that decorating cakes is a form of art and creative expression, and that he can honor God through his artistic talents.  Phillips believes that if he uses his artistic talents to participate in same-sex weddings by creating a wedding cake, he will be displeasing God and acting contrary to the teachings of the Bible.”

Phillips did not contest that his bakery is a public accommodation subject to the state’s anti-discrimination law, but he argued in defense that the law could not be applied in such a way as to violate his 1st Amendment rights of freedom of speech and free exercise of religion.  His bakery is incorporated but wholly owned by him, and he claims for his business the same 1st Amendment rights that he enjoys.  Judge Spencer pointed out that at least for now in the states comprising the federal 10th Circuit, which includes Colorado, family-owned closely-held corporations do enjoy 1st Amendment free exercise of religion rights (as a result of a 10th Circuit decision that the Supreme Court recently agreed to review), and the Supreme Court held several years ago in the notorious Citizens United case that corporations have 1st Amendment free speech rights.  Thus, Phillips argued, he should enjoy immunity from this discrimination charge on 1st Amendment grounds.  In effect, Phillips was arguing that the 1st Amendment protects businesses and individuals from having to comply with anti-discrimination laws if their personal beliefs based on religion would be violated by compliance with the law.

In addition, Phillips argued that he did not actually discriminate because of David and Charlie’s sexual orientation, and thus could not be found to have violated the statute.  He said that he would be happy to do business with them, so long as it didn’t involve a wedding cake for a same-sex wedding.  He testified he would also refuse to sell a wedding cake to a same-sex couple to celebrate a civil union, so his ground of objection is not really that Colorado does not recognize same-sex marriages, but rather that he feels that selling a cake for any celebration of a same-sex relationship would be state-compelled speech that violates his freedom of speech, as well as forcing him to act in conflict with his religious beliefs.

Judge Spencer first rejected Phillips’ argument that his refusal to sell the wedding cake was not sexual orientation discrimination.  “The salient feature distinguishing same-sex weddings from heterosexual ones is the seuxla orientation of its participants,” he wrote.  “Only same-sex couples engage in same-sex weddings.  Therefore, it makes little sense to argue that refusal to provide a cake to a same-sex couple for use at their wedding is not ‘because of’ their sexual orientation.”  Drawing a telling analogy, he wrote, “If Respondents’ argument was correct, it would allow a business that served all races to nonetheless refuse to serve an interracial couple because of the business owner’s bias against interracial marriage,” but this kind of theory was refuted by the Supreme Court in 1983 in Bob Jones University v. United States, where the Court upheld the IRS action in revoking the university’s tax exempt status because it denied admission to interracial couples in violation of laws forbidding discrimination because of race.

On the free speech claim, Spencer rejected Phillips’ argument that “preparing a wedding case is necessarily a medium of expression amounting to protected ‘speech,’ or that compelling Respondents to treat same-sex and heterosexual couples equally is the equivalent of forcing Respondents to adhere to ‘an ideological point of view.'”  Spencer distinguished between wedding cakes and “saluting the flag, marching in a parade, or displaying a motto,” all forms of conduct that have been found to constitute protected speech.  Spencer noted that Phillips refused to do business with David and Charlie without any discussion about how the cake would be decorated or what might be written on it.  “For all Phillips knew,” wrote Spencer, “Complainants might have wanted a nondescript cake that would have been suitable for consumption at any wedding.”  In a footnote, Phillips mentioned that the cake they had eventually obtained from another bakery had a “filling with rainbow colors,” but questioned whether that could be seen as some sort of endorsement of same-sex marriage by the baker.  Spencer characterized Phillips’ attempt to elevate making a wedding cake to the symbolic level of a compelled flag salute as an argument that “trivializes the right to free speech.”

Finally, Spencer rejected Phillips’ free exercise of religion argument.  He said that this case is not about the government trying to regulate what Phillips believes, but rather a regulation of commercial conduct.  “The types of conduct the United States Supreme Court has found to be beyond government control typically involve activities fundamental to the individual’s religious belief, that do not adversely affect the rights of others, and that are not outweighed by the state’s legitimate interests in promoting health, safety and general welfare,” Spencer commented, and cited a list of Supreme Court cases upholding neutral laws that incidentally regulate conduct, where the conduct involves some religious belief.  “Respondent’s refusal to provide a cake for Complainants’ same-sex wedding is distinctly the type of conduct that the Supreme Court has repeatedly found subject to legitimate regulation,” he asserted, mentioning that the Supreme Court itself had ruled that laws prohibiting sexual orientation discrimination by public accommodations have specifically been mentioned by the Supreme Court as legitimate.   The Supreme Court has ruled that a valid law that is neutral with respect to religion and generally applicable will be upheld if it is rationally related to a legitimate government interest.  The Colorado public accommodations law meets that test.

As an administrative judge, Spencer does not have authority to impose fines or penalties.  Upon finding that Masterpiece Cakeshop and Phillips had violated the law, his remedy was to issue a “cease and desist order” and take such other corrective action as is deemed appropriate by the Colorado Civil Rights Commission.  If Phillips appeals this ruling, it might get to a stage where he would incur financial liability, however.

The ACLU LGBT & AIDS Project and the ACLU Foundation of Colorado and attorneys from King & Greisen, LLC, represented the complainants at the hearing before ALJ Spencer.  Phillips enjoys legal support from Alliance Defending Freedom, a law firm that specializes in opposing gay rights under the guise of preserving the 1st Amendment rights of those who discriminate against gay people.   Given ADF’s participation, it is likely this ruling will be appealed.

The Colorado bakery case is one of only several contesting the applicability of public accommodation laws to businesses that want to avoid providing goods and services for same-sex ceremonies.  In Washington State, litigation proceeds against a florist shop, and in New Mexico, the state Supreme Court ruled earlier this year that a wedding photographer had violated the state’s public accommodations law by declining to provide photographic services for a same-sex commitment ceremony.  The Supreme Court has received a petition to review the New Mexico case.

Illinois Lesbian Couple Wins Order Directing Clerk to Issue Marriage License

Posted on: November 26th, 2013 by Art Leonard No Comments

Yesterday afternoon U.S. District Judge Thomas M. Durkin signed a temporary restraining order and permanent injunction directing Cook County Clerk David Orr to issue a marriage license to Vernita Gray and Patricia Ewert.  Gray v. Orr, Case No. 1:13-cv-8449 (Nov. 25, 2013).    The marriage equality bill signed into law last week by Governor Patrick Quinn does not go into effect until June 1, 2014, but that may be too late for Gray and Ewert, who have been a couple for five years and desperately want to marry, because Gray is suffering from advanced breast cancer and may not make it that long.  Judge Durkin published an opinion to accompany his order on December 5; see Gray v. Orr, 2013 Westlaw 6355918 (N.D. Ill.).

The women filed suit on November 22, contending that the existing Illinois law banning same-sex marriages deprives them of due process and equal protection in violation of the 14th Amendment, echoing the existing marriage equality lawsuits on file with the Cook County Circuit Court.  Those cases, in which motions to dismiss were previously denied, are being held in abeyance pending the June 1 effective date of the new marriage equality law.

Plaintiffs filed their motion for immediate relief on Friday, Nov. 22, and the court accommodated them with a nearing on the motion on Monday, November 25.  In their motion papers, the plaintiffs explained why they could not wait until June 1.  “Unfortunately, Vernita may pass away in the near future.  Unless this Court acts, Vernita and Pat will be permanently denied the benefits, both tangible and dignitary, of legal marriage.  For example, unless Plaintiffs are allowed to legally marry, they may face discrimination in hospital settings, an estate tax burden, and other harms, including challenges establishing eligibility for social security benefits as a surviving spouse.  Given Vernita’s extensive medical expenses, the additional cost of being denied access to legal marriage is particularly burdensome.”

The complaint pointed out that no adequate remedy in money damages exists for the deprivation of the status of marriage, and that no harm would be done to the state of Illinois by granting them immediate relief.  Indeed, the Illinois state government has now decided as a matter of public policy that same-sex couples should be entitled to marry.  The effective date of the marriage law was dictated by the timing of the votes in the two houses of the legislature.  Since the Senate bill was passed last May, it could not be enacted by the House during the fall “veto session” without a super-majority unless the effective date was no earlier than June 1.  The bill won a majority, but not a supermajority.  Illinois constitutional requirements would be preempted by federal constitutional requirements, however.  In effect, the plaintiffs argued, they have a federal constitutional right to marry, and any state rule that makes that impossible — even for just seven months — would be inflicting an irreparable injury on them due to Vernita’s medical condition.

Judge Durkin was persuaded by this argument and signed the Order presented by counsel for the plaintiffs, amending it however to be effective until December 9, 2013.   Although Durkin did not issue a written explanation of his Order, merely signing the one-page Order proffered by counsel, his agreement to sign the Order implicitly signaled his finding that plaintiffs were likely to prevail on the merits of their claim to a federal constitutional right under the 14th Amendment to marry.

Cook County Clerk David Orr promptly indicated that his office would issue a license as soon as they received a duly executed application.  Orr, who is a named defendant in the pending state court lawsuits, is not defending the marriage ban on the merits; neither is the Attorney General, Lisa Madigan, who agrees that same-sex couples have a right to marry.  Defense of the existing marriage ban in the state court lawsuit was left to county clerks from outside the Chicago area, who intervened as defendants represented by a Catholic litigation group, the Thomas More Society.

A large legal team assembled to represent the plaintiffs, including groups of attorneys from Kirkland & Ellis LLP and  Miller Shakman & Beem LLP, staff attorneys from Lambda Legal’s Chicago office, and attorneys for the Roger Baldwin Foundation of ACLU, Inc., in Chicago.